By sect. 9, common carriers shall be liable to pay only the actual value, as proved, not exceeding the declared value, together with the increased charges paid by the owner.

Where a carrier makes one contract to carry by land and sea, and goods are lost on the land journey, the carrier is within the protection of the Act. Pianciani v. L. & S. W. Ry. Co., 18 C. B. 226; Le Conteur v. Id., L. R., 1 Q. B. 54; Baxendale v. Gt. E. Ry. Co., L. R., 4 Q. B. 244, Ex. Ch.

Under sect. 1, articles more for ornament than use have been considered "trinkets," as bracelets, shirt pins, rings, brooches, ornamental purses, and scent bottles; but not a plain metal fusee box. So silk made into articles as watch-guards is within it; silk hose, gold chains for eye-glasses, &c. Bernstein v. Baxendale, 6 C. B., N. S. 251; 28 L. J., C. P. 265; and cases cited, Id. So is a silk dress made up for wearing. Flowers v. S. E. Ry. Co., 16 L. T., N. S. 329, E. T. 1867, Ex.; overruling Davey v. Mason, Car. & M. 45. Hand-painted designs of carpets are not within the term "paintings," which is to be used in its ordinary sense as meaning works of art. Woodward v. L. & N. W. Ry. Co., 3 Ex. D. 121. Whether an article is of the description mentioned in this section is a question of fact for the jury. S. C., following Brunt v. Midland Ry. Co., 2 H. & C. 889; 33 L. J., Ex. 187. A blank acceptance for 117., lost by the carrier before delivery, and before the drawer's name has been inserted, is not a bill nor a writing of the value of 10l. within sect. 1. Stoessiger v. S. E. Ry. Co., 3 E. & B. 549; 23 L. J., Q. B. 293.

The Act extends to all the articles enumerated in sect. 1, although not (within the words of the preamble) "an article of great value in small compass." To entitle a party to recover for loss or injury to any article of such description, he must give express notice to the carrier of the value and nature of the article. A looking-glass exceeding the value of 107. was packed up in a case and sent to the carrier's office to be conveyed from London to a house near Lymington: a notice was fixed up in the office pursuant to sect. 2: the words "looking-glass," " keep this edge upwards," were written on the case but no declaration was made of the nature and value of the article, and no increased rate of carriage paid: the parcel was conveyed from Lymington to its destination in the usual way it was held that the carrier was not liable for breakage of the glass. Owen v. Burnett, 2 Cr. & M. 353; 4 Tyr. 133. A packed waggon sent for carriage by the defendants, containing enumerated articles, is a parcel or package within sect. 1. Whaite v. Lancashire & Yorkshire Ry. Co., L. R., 9 Ex. 67. The expressed opinion of the carrier as to its real value will not supersede the necessity of a formal declaration of it. Boys v. Pink, 8 C. & P. 361. The packing-case in which goods mentioned in sect. 1 are contained is usually considered as accessory to them. Wyld v. Pickford, 8 M. & W. 443. So the frame of a framed picture is accessory to it, and within the Act. Henderson v. L. & S. W. Ry. Co., L. R., 5 Ex. 90. But where the packing-case contains articles, some within the statute and some not, the value of the case, and of the articles not within the statute, may be recovered separately. Treadwin v. Gt. E. Ry. Co., L. R., 3 C. P. 308. The defendant must prove that the goods fall within sect. 1. See Sutton v. Ciceri, 15 Ap. Ca. 144, D. P.

The declaration required by sect. 1 must be given at the time of delivery, whether that be at the carrier's office or to a carter sent to the customer's house to collect parcels, or on the road, or elsewhere; the carrier may then demand the increased charge as publicly notified in his office under sect. 2, and on payment thereof he is to give the receipt if required under sect. 3. If no such declaration be made by the bailor on delivery, the

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carrier is protected by sect. 1 in respect of the specified articles, except in cases of felony referred to in sect. 8. Hart v. Baxendale, 6 Exch. 769; 21 L. J., Ex. 123, Ex. Ch. But by sect. 3, if no notice has been affixed under sect. 2, the carrier is not protected, even though no declaration has been made. See Baxendale v. Hart, 6 Exch. 769, 778; 20 L. J., Ex. 338, 340, per cur. In Hart v. Baxendale, supra, which is cited in many text books in support of the contrary proposition, the court decided that there had been a sufficient notice under sect. 2, and the exception to the ruling of Pollock, C. B., at the trial being allowed on that hypothesis, the effect on the carrier's liability of the absence of a notice did not directly arise in the Exch. Cham. Where the plaintiff sent a valuable picture by a railway, and declared its nature and value at the time of its delivery to the carrier, and the carrier did not demand any increased rate to which he was entitled under sect. 2, and only the ordinary charge was paid, the carrier was held not to be protected by the statute from his common law liability for an injury which happened to the picture on its journey. Behrens v. Gt. N. Ry. Co., 7 H. & N. 950, 953; 31 L. J., Ex. 299, 300, Ex. Ch. "There is nothing in the statute which protects the carrier from liability if, after the value is declared to be such as would entitle him to demand an increased rate of charge, he chooses to accept the goods to be carried without making any demand of such increased rate or requiring it to be either paid or promised;" per cur., S. C. The "loss" provided for by sect. 1 means loss by the carrier or his servant, so that the parcel cannot be delivered; it protects the carrier against liability for damage caused by delay in delivery in consequence of a temporary loss. Millen v. Brasch, 10 Q. B. D. 142, C. A. But in the case of a temporary loss the carrier will be liable for detention of the goods beyond a reasonable time after they have been found; Hearn v. L. & S. W. Ry. Co., 10 Exch. 793; 24 L. J., Ex. 180; an injury done to goods sent beyond their destination is within the protection of sect. 1. Morritt v. N. E. Ry. Co., 1 Q. B. D. 302, C. A.

Where an innkeeper had no express authority from the defendants to take in parcels, and used his discretion in sending them by the defendant's mail or any other coach; though he kept no regular booking-office, it was held that for the purpose of taking in a parcel the inn was a receivinghouse of the defendants within sect. 5. Syms v. Chaplin, 5 Ad. & E. 634. See also Stephens v. L. & S. W. Ry. Co., infra.

Since this Act, if articles mentioned in sect. 1 are sent without declaration of value and payment of the increased charge, carriers who have complied in the requirements of the Act are not liable though the loss be occasioned by the gross negligence of their servants. Hinton v. Dibbin, 2 Q. B. 646; Morritt v. N. E. Ry. Co., supra. And it seems that there is no distinction between the negligence of themselves or their servants; but wilful misfeasance would come under a different consideration. See S. CC. By sect. 8, where the loss is by the felony of the carrier's servants, the Act does not protect. Metcalfe v. L. & Brighton Ry. Co., 4 C. B., N. S. 307; 27 L. J., C. P. 205. The servants of a common carrier or other agent employed by a railway company to forward goods to their destination, are servants of the company within that section; Machu v. L. & S. W. Ry. Co., 2 Exch. 415; Stephens v. L. & S. W. Ry. Co., 18 Q. B. D. 121, Č. A.; accord. Doolan v. Midland Ry. Co., 2 Ap. Ca. 792, D. P.; but the company are not estopped from denying that the thief is their servant, and may show that though he represented himself as being one of the servants of the carrier employed by the company, he was not so in fact. Way v. Gt. E. Ry. Co., 1 Q. B. D. 692. Where to a defence founded on sect. 1 that the value of the goods had not been declared, the plaintiff

replies under sect. 8, alleging a felony by the defendant's servants, the plaintiff must prove facts which show not merely that somebody must have stolen them while they were in transitu, but also that it is more likely that they were stolen by the defendant's servants than any one else. Metcalfe v. L. & Brighton Ry. Co., 4 C. B., N. S. 311; 27 L. J., C. P. 333; Gt. W. Ry. Co. v. Rimmell, infra. It is not sufficient to show merely that they had greater opportunity of committing the theft; M'Queen v. G. W. Ry. Co., L. R., 10 Q. B. 569; although it is not necessary to give evidence which would fix any one servant of the company with the felony. Vaughton v. L. & N. W. Ry. Co., L. R., 9 Ex. 93. See also Kirkstall Brewery Co. v. Furness Ry. Co., L. R., 9 Q. B. 468. Where the carrier carries on a special contract exempting him from liability for loss unless the goods are declared and extra charge paid, felony by his servant will not deprive him of this protection unless there be also gross negligence; semble, Butt v. Gt. W. Ry. Co., 11 C. B. 140; 20 L. J., Č. P. 241. This case is explained in Gt. W. Ry. Co. v. Rimmell, 18 C. B. 575; 27 L. J., C. P. 201; and in Metcalfe v. L. & Brighton Ry. Co., 4 C. B., N. S. 307; 27 L. J., C. P. 205, as not, in fact, being a case under the Carriers Act at all; negligence is the material point when there is a special contract; felony, when the statute is set up as a defence. S. CC.

A specific notice repudiating liability in certain cases, and served on the customer, as to which see further, ante, pp. 603, 604, is not a public notice or declaration within sect. 4, and it may, if he assent to it, or do not dissent, amount to a special contract, or be evidence of one for the jury, within sect. 6. Walker v. York & N. Midland Ry. Co., 2 E. & B. 750; 23 L. J., Q. B. 73. But it has been said that sect. 6 applies only to contracts, the provisions of which are inconsistent with the exemption claimed by the carriers under sect. 1. Baxendale v. Gt. E. Ry. Co., L. R., 4 Q. B. 244, Ex. Ch.

Railway and Canal Traffic Act, 1854, 17 & 18 Vict. c. 31.] By this Act, very important provisions are made respecting the traffic on railways and canals."Traffic" includes not only passengers and their luggage, and goods, animals and other things conveyed by any railway or canal company, but also carriages, waggons, trucks, boats, and vehicles of every description adapted for running or passing on the railway or canal of any such company; and "railway company" or "canal company" includes as well lessees and contractors working railways or canals as the companies or owners, and all navigations whereon tolls are levied by Act of Parliament. Sect. 1. The Act provides against neglect of any company to afford facilities for traffic, or undue preference being shown by such company in favour of certain persons or traffic; sect. 2; and gave certain special remedies by application to the Court of C. P. in case of alleged breach of the enactment. Sects. 3-5. No proceedings shall be taken for any violation of the above enactment except in the manner provided by the Act, but nothing therein is to take away any right, remedy, or privilege of any person against such company. Sect. 6. Hence it has been held that no action lies for the breach of the provisions of sect. 2; Manchester, &c. Ry. Co. v. Denaby Main Colliery Co., 14 Q. B. D. 209, C. A.; Rhymney Ry. Co. v. Rhymney Iron Co., 25 Q. B. D. 146, C. A.; Lancashire, &c. Ry. Co. v. Greenwood, 21 Q. B. D. 215; except, perhaps, after an adjudication by the commission in which this jurisdiction of the C. P. is now vested (vide post, p. 612), that the company has been guilty of undue preference, for money subsequently extorted by the company. See Id. p. 219; Manchester, &c. Ry. Co. v. Denaby Main Colliery Co., 11 Ap. Ca. 97, 112. In this case the judgment of the C. A., ubi supra, on this point was

affirmed in D. P., on the ground that there had not, in fact, been undue preference. The section imposes an obligation on the company to provide reasonable facilities for carrying animals and other classes of goods which they are not bound to convey as common carriers. See Dickson v. Gt. N. Ry. Co., 18 Q. B. D. 176, C. A.; Winsford Local Board v. Cheshire Lines Committee, 24 Q. B. D. 456. The provisions of the Act have been extended by the Regulation of Railways Act, 1868, s. 16, post, p. 616, and Id. 1871, s. 12, post, p. 617, to the steam vessels worked by railway companies and the traffic carried on thereby, and to traffic they procure to be carried in ships not belonging to them, subject to a power to limit their liability as to sea and water risks. The Regulation of Railways Act, 1873 (36 & 37 Vict. c. 48), ss. 11 et seq., further extended the provisions of the Act; and sect. 6 transferred the jurisdiction of the C. P. above mentioned to the Railway Commissioners appointed under sect. 4. By the Railway and Canal Traffic Act, 1888 (51 & 52 Vict. c. 25), the jurisdiction of these Commissioners has been, by sect. 8, transferred to the Railway and Canal Commission, established under sect. 3; and the jurisdiction is extended by sects. 9-16.

By 17 & 18 Vict. c. 31, s. 7, every company, &c., shall be liable for loss of or injury done to any horses, cattle, or other animals, or to any articles, goods, or things, in receiving, forwarding, or delivering thereof, occasioned by the neglect or default of the company or its servants, notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, or in anywise limiting such liability; and every such notice, condition, or declaration is declared to be null and void. Provided that nothing therein shall be construed to prevent such companies from making such conditions with respect to receiving, forwarding, and delivering such animals, articles, &c., as shall be adjudged by the court or judge before whom any question relating thereto shall be tried, to be just and reasonable. The section further provides certain limits to damages recoverable for loss or injury to any of such animals (namely, a horse, 501.; neat cattle, 157. each; sheep and pigs, 27. each), unless the person sending or delivering the same to the company shall, at the time of delivering, have declared them to be of higher value, in which case the company may charge a reasonable percentage on the excess of value above the limited sum, to be paid in addition to the ordinary charge, such percentage to be notified in the manner prescribed by the Carriers Act, s. 2 (ante, p. 608), and to be binding on the company as therein mentioned. Proof of the value and amount of injury is to lie on the claimant. No special contract between the company and the other parties respecting the receiving, forwarding, or delivering of any goods, &c., shall be binding on or affect such party, unless it be signed by him or the person delivering the goods for carriage. Nothing in the Act is to alter or affect the rights or liabilities of the company under the Carriers Act, with respect to the articles mentioned in that Act (ante, pp. 607, 608).

The language of sect. 7 differs much from that of the Carriers Act. The word "public" is not inserted before the word "notice," but it is now settled that "general notices to limit the liability shall be null and void; but the parties may make special contracts with the companies, provided those contracts are adjudged by the court to be just and reasonable, and provided they be signed by the parties." Simons v. Gt. W. Ry. Co., 18 C. B. 805, 829; 26 L. J., C. P. 25, 32, per Jervis, C. J. Accord. M'Manus v. Lancashire, &c. Ry. Co., Ex. Ch. infra, and Peek v. N. Staffordshire Ry. Co., D. P., post, p. 613. The section only applies to carriage of goods over lines which the company are working themselves, and not to contracts by the company to carry over other lines. Zunz v. S. E. Ry. Co., L. R., 4 Q. B. 539. But where the company contract to carry over their own

as well as other lines, they must prove that the loss did not occur on their line, in order to avail themselves of a condition of non-liability. Kent v. Midland Ry. Co., L. R., 10 Q. B. 1. See also Flowers v. S. E. Ry. Co.,

16 L. T., N. S. 329, E. T. 1867, Ex.

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In Simons v. Gt. W. Ry. Co., ante, p. 612, the court held that a condition exempting a company from liability for loss, detention, or damage, if goods were improperly packed, was unreasonable. Accord. Garton v. Bristol & Exeter Ry. Co., 1 B. & S. 112; 30 L. J., Q. B. 273, where an action was held to lie for refusing to carry unless the plaintiff signed that condition. But a company may stipulate not to be liable for loss or damage, however caused," in a contract to carry at a special or mileage Simons v. Gt. W. Ry. Co., supra. If the particular condition relied on by the company to protect them in the particular case be a reasonable one, the unreasonableness of other conditions in the contract, not relied on, is not material. Per cur., S. C. The Act makes the question of reasonableness one of law, and not of fact. Per cur., S. C.; McCarthy v. Id., 12 Ap. Ca. 218, C. A.

rate.

A special contract professing to protect a company from damage to horses, "however occasioned," is not reasonable; M'Manus v. Lancashire & Yorkshire Ry. Co., 4 H. & N. 327; 28 L. J., Ex. 353, Ex. Ch. ; M'Cance v. L. & N. W. Ry. Co., 7 H. & N. 477; 31 L. J., Ex. 65; 3 H. & C. 343; 34 L. J., Ex. 39; Ashendon v. L. Brighton & S. Coast Ry. Co., 5 Ex. D. 190. Conditions annexed by a railway company to their "cattle tickets,' that the company should not be liable for damage to cattle from any cause whatever, "it being agreed that the animals are to be carried at the owner's risk, and that the owner of the cattle is to see to the efficiency of the waggon before his stock is placed therein; complaint to be made in writing to the company's officer before the waggon leaves the station," are not reasonable; Gregory v. W. Midland Ry. Co., 2 H. & C. 944; 33 L. J., Ex. 155; even though the owner is allowed a free pass for a man to take care of the cattle. Rooth v. N. E. Ry. Co., L. R., 2 Ex. 173. But a declaration in such a contract that the horses sent thereunder did not exceed 107. in value, binds the sender. M'Cance v. L. & N. W. Ry. Co., supra. A railway company gave the plaintiff a printed notice, that they would only carry marbles, subject to the conditions therein stated, one of which was that they would not be responsible for any loss or injury unless the marbles were declared and insured according to their value. With knowledge of these conditions the plaintiff instructed the company by letter, to forward them "not insured," which they did, and the marbles were injured,—it was held, though there was no wilful default or neglect found, that the company were liable, and that the condition was neither just nor reasonable, for the effect of such a condition would be to exempt the company from responsibility for injury, however caused, whether by their own negligence, or even by fraud or dishonesty on the part of their servants. Peek v. N. Staffordshire Ry. Co., 10 H. L. C. 473; 32 L. J., Q. B. 241. The conditions must be embodied in a special contract signed by the party, otherwise they will not bind him. Thus the above letter was held not to constitute a special contract in writing, the words "not insured" being insufficient, either expressly or by reference, to embody the above condition. S. C. Where, however, the defendants have been in the habit of conveying the plaintiff's goods on certain printed conditions exempting the defendants from liability, and known as "owner's risk," a memorandum signed by the plaintiff, "Please receive and forward," &c.; "owner's risk," is a sufficient contract, and evidence of the terms is admissible. Lewis v. Gt. W. Ry. Co., 3 Q. B. D. 195, C. A. Where an agent who is employed to deliver cattle to be sent by a railway company signs the con