of a corporation, that power must be shown to be in it: the King v. Bird, 13 East, 384; the King v. Lyme Regis, Doug. 158-9. So, the master, wardens, and commonalty of a company cannot sue for a penalty forfeited to the master and wardens, for the use of the master, wardens, and company: Company of Feltmakers v. Davis, 1 B. & P. 98; Bodwic v. Fennell, 1 Wils. 235. But the deft.'s liability need not be particularly stated. So, where a by-law stated that deft. was to pay a certain sum quarterly, or incur a penalty of £5 per annum, a general breach will be sufficient, even on demurrer or in arrest of judgment, without setting forth the non-payment on specific quarterly days: 1 Wils. 281. A plea setting up a by-law as a defence must show the authority of the persons making it: Company of Vintners v. Passey, 1 Burr. 235. And, in debt on a by-law, any reasonable excuse may be given in evidence under the plea of nil debet: Carth. 483; Cambridge v. Herring, 1 Lutw. 402, 5; Company of Vintners v. Passey, 1 Burr. 239. In order to avoid a by-law, on account of its being unreasonable, it will not be sufficient to show a possible inconvenience to arise from it: the inconvenience must appear to be probable: the King v. Ashwell, 12 East, 29. Where the custom is relied upon as the foundation of an action on a bylaw, it must be proved, Hesketh v. Braddock, 2 Burr. 1858; and, if it be not shown on the declaration, deft. may demur: Company of Vintners v. Passey, 1 Burr. 235. Sixty years' usage has been considered as evidence of a custom: Selw. N. P. 1145. Evidence.] A corporation has an implied power of making by-laws; but, where the charter gives the company a power to make by-laws, they can only make them in such cases as they are enabled to do by the charter, for such power given by the charter implies a negative that they [*325] shall not make by-laws in any *other cases, p. Ld. Macclesfield, 2 P. Wms. 209, cited the King v. Bird, 13 East, 379; and, though there be no express power by their charter to make them: Com. D. By-Law, A.; sed vide Kirk v. Nowill, 1 T. R. 118. The power to make them may be upheld by an ancient custom; as, where the tenants of a manor make by-laws for the good order of the tenants, 1 Roll. 366, l. 16; or without a custom, where the effect of it was the public good, as the repair of churches, highways, &c. 5 Co. 63 d.; the evidence to establish which will vary according to the circumstances. See respective titles, post, "Charter," "Corporation." Where a by-law is pleaded, and issue taken thereon, proof that, from the time of the supposed by-law, the usage at elections has been according to such supposed law, affords presumptive evidence that there was such a law, although it cannot be produced: Rex v. Phillips, 1749. CARRIERS, ACTIONS AGAINST FOR LOSS OF GOODS. FORM OF REMEDY, 325.-Assumpsit, ib.-Case, ib.-Trover, ib. Parcel, 327.--Declaration against Carrier by Water for not EVIDENCE FOR PLAINTIFF.-Proof of Defendant's being a Carrier, as stated, 328.-Proof of Delivery of Goods to him, 329.— Proof of his Duty and Liability, 330.-Proof of Breach of Duty and Negligence, 331.-Proof of Value of Goods, ib. EVIDENCE FOR DEFENDANT.-Fraud, 331.-Notice, &c., restricting Liability, 331 to 334.-Accident, 334.-Plaintiff's Negligence, ib.-Illegal Carriage, ib. COMPETENCY OF WITNESSES, 334. Form of Remedy. Assumpsit lies against a carrier for the breach of his express or implied contract, to take due and proper care of goods entrusted to him to carry for the plt.: 4 Mod. 92; 2 Salk. 440; Ross v. Johnson, Burr. 2825. But, as the liability of carriers is founded on common law, as well as on the contract, case is sustainable, and, in many instances, is a preferable remedy, especially where there is any doubt as to the number of the persons to be made defts.; when, by proceeding in case, a plea in abatement for the nonjoinder of parties may be avoided, and the joinder of too many defts. will form no ground of nonsuit: Govett v. Radnidge, 3 East, 62; Ansell v. Waterhouse, 2 Chit. Rep. 1; Bretherton v. Wood, 3 B. & B. 54, 6 Moore, 141, 154, 8, s. c.; Leslie v. Wilson, ib., 171. Case is also preferable, where there is evidence of a conversion, as a count in trover may be added, ib. ; and a defence of a set-off, Fletcher v. Dyche, 7 T. R. 36, or of deft.'s bankruptcy, Parker v. Norton, 6 T. R. 695, 1 Marsh. 184, may be sometimes thereby avoided. When the plt. sues in case, the action must be against deft. on his common-law liability: 6 Moo. 54; 2 N. R. 345. Trover lies against a carrier for an act done, though not for a mere omission; as, where by mistake he delivers goods to a wrong person, trover lies, but not if he lose them by accident: Pinkerton v. Caslon &ors., 2 B. & A. 702. Trover lies, if the carrier refuse to deliver the goods when he has them in his possession, without just cause, or if he has tortiously converted the goods, as by unpacking them and stealing: Anon., Salk. 655. But, when the non-delivery arises from an inability to deliver the goods, as when they have been lost or destroyed by accident, however he may be liable to answer in another [*326] form of action, he cannot be liable in this; so, if he assert (falsely) that he has delivered the goods, it cannot be construed into a conversion, Ross v. Johnson, 2 Burr. 2525, supra; nor, where the goods, have, in fact, never reached him, having been delivered to his servant, by whose negligence his master has been prevented from receiving them, since this cannot be construed into any conversion by him: Taylor v. 2 Ld. Raym. 792. The action for the loss of goods should be brought in the name of the consignee of them, when they are sent at his risk (which is very usual), and not in the name of the consignor: Dawes v. Peck, 8 T. R. 330; B. N. P. 86; 3 P. Wms. 186; 3 B. & P. 582. If the consignee had no property in the goods at the time of the delivery to the carrier, the consignee should sue: ib., Sargent v. Morris, 3 B. & A. 277. Form of Pleadings. In a declaration in assumpsit, it is not necessary to commence it with an inducement of the deft. 's being a common carrier, &c. The termini of the journey must be correctly described; therefore, where the contract which was declared upon was represented in the declaration to be for the conveyance of goods from W., in the county of Middlesex, to T., in Essex, when, in fact, it was from Aldgate, in the city of London, to that place, he was nonsuited: Tucker v. Crackling, 2 Stark. Rep. 385. The delivery and receipt of the goods must be alleged in such a manner as to show the existence of the contract for the breach of which he declares: Max v. Roberts, 12 East, 89. The plt. need only state the nature of the goods delivered to deft., with a certainty of description to a common intent: thus, a "carrier's pack" has been held a sufficient description; and so, it was sufficient where the declaration stated so many "sets of gold buttons, and a set of Turkey stones and garnets;" for, to such as are conversant with those things, it is well known what a set is, and in what number the precious stones are usually placed in such sets: Chamberlain v. Cook, 2 Ventr. 78; 2 Saund. 74, a.; Jerem. Car. 182. In stating the contract, if the carrier only limits his responsibility, that need not be noticed in pleading; but, if a stipulation be made, that, under certain circumstances, he shall not be liable at all, that must be stated, p. Abbott, C. J., Latham v. Rutly, 2 B. & C. 22; therefore, if the carrier excepts his liability from loss occasioned by fire or robbery, &c., it must be so stated, ib.; or, if he give notice that he will not pay any thing for loss of goods which exceed £5, it must be set out; but, if he give notice that he will not pay more than £5 for the loss of any goods, such exception need not be noticed: Clarke v. Gray, 6 East, 563. It is sufficient to allege the reward generally, without showing what reward: Dalston v. Janson, 1 Ld. Raym. 58; 13 East, 114, a. Chit. Pl. 357. The breach must be stated with precision: Mayor v. Humphries, 1 C. & P. 251. An allegation, that the deft. so carelessly and negligently conducted himself, that by means thereof the goods were lost, is of such a nature as to admit of proof of gross negligence: Smith v. Horne, 2 Moo. 18, s. c.; 3 Taunt. 144. In a declaration in Case, it is not necessary to state the custom of the realm as to carriers, as the action is founded on the general obligation of the law, and ex delicto for acting against it: Ansell v. Waterhouse, 2 Chit. Rep. 3, 4. But the declaration should show the deft. was a common carrier, or some other fact, to show his common-law duty and liability, ante, 324. The declaration must show a duty. A count had better be inserted, stating defts. to be owners of a general conveyance, carrying the goods of all indiscriminately; otherwise, a plea in abatement may be made available: Chamberlain v. Cooke, 2 Vent. 78. The other points as to a declaration in assumpsit will be here applicable: supra. Plea.] This must, in general, be the general issue: post, "Case." *Precedents. AGAINST A CARRIER FOR LOSING A PARCEL. [*327] (Commencement of Declaration, post, “ Declaration.") For that whereas the said deft., before and at the time of the delivery of the parcel, goods, and chattels to him, as hereinafter next mentioned, was, and thence hitherto hath been, and still is, a common carrier of goods and chattels for hire, on a certain journey, to wit, from to, to wit, at, &c. And whereas, also, the said plt., whilst the said deft. was such common carrier, as aforesaid, to wit, on, &c., to wit, at, &c., (the venue,) caused to be delivered to him, the said deft., and the said deft. then and there accepted, and received of and from the said plt., a certain parcel, containing divers goods and chattels, to wit, &c. (specify the articles fully and particularly), of the said plt., of great value, to wit, of the value of £-, to be safely and securely carried and conveyed by him, the said deft., from aforesaid to aforesaid, and there, to wit, at, &c. aforesaid, safely and securely to be delivered for the said plt., for certain reasonable reward to him, the said deft., in that behalf. Yet the said deft., not regarding his duty as such common carrier, as aforesaid, but contriving, and frandulently intending, craftily and subtly to deceive, defraud, and injure the said plt. in this behalf, did not, nor would, safely or securely carry or convey the said parcel and its contents aforesaid, from aforesaid to aforesaid, nor there, to wit, at — aforesaid, safely or securely deliver the same for him, the said plt.; but, on the contrary thereof, he, the said deft., so being such common carrier as aforesaid, so carelessly and negligently behaved and conducted himself, in the premises, that by and through the carelessness, negligence, and default of the said deft. in the premises, the said parcel and its contents aforesaid, being of the value aforesaid, became and were wholly lost to the said A. B., to wit, at, &c, aforesaid. And whereas, also, heretofore, to wit, on, &c. aforesaid, at, &c., afcresaid, to wit, at, &c. aforesaid, the said plt., at the said deft.'s special instance and request, caused to be delivered to the said deft, a certain other parcel, containing certain other goods and chattels, to wit, &c., of him, the said plt., of great value, to wit, of the value of £-, to be taken care of, and safely and securely carried and conveyed by him, the said deft., on a certain journey to aforesaid, and there, to wit, at aforesaid, to be safely and securely delivered by the said deft. for the said plt., within a reasonable time then next following, for certain hire and reward to the said deft. in that behalf; and, although the said deft. then and there accepted, and had and received, the said last-mentioned parcel and its contents aforesaid, for the purpose aforesaid, and undertook the carriage, conveyance, and delivery thereof, as aforesaid, within such reasonable time, as aforesaid, and although a reasonable time for the carriage, conveyance, and delivery thereof, as aforesaid, hath long since elapsed, yet the said deft., not regarding his duty in that behalf, but contriving, and fraudulently intending, craftily and subtly to deceive and defraud the said plt. in this respect, did not, nor would, within such reasonable time, as aforesaid, or at any time afterwards (although often requested so to do), take care of, or safely or securely carry and convey, the said last-mentioned parcel and its contents aforesaid, on the said journey to aforesaid, nor there, to wit, at aforesaid, safely or securely deliver the same for the said plt., but hath hitherto wholly neglected and refused so to do; and by means of the negligence and improper conduct of the said deft. in that behalf, the said last-mentioned box and its contents aforesaid have not yet been delivered to or for him, the said deft., at aforesaid, or elsewhere, and are wholly lost to the said plt., to wit, at, &c., aforesaid. [Add a count in trover, if there be any evidence of a conversion, 3 East, 70, ante, 325. Add a count, merely stating that deft. had the custody of the goods, to be taken care of by him, and that he took such bad care thereof, that they became wholly lost to plt.] - DECLARATION IN ASSUMPSIT AGAINST CAPTAIN OF VESSEL FOR NOT CARRYING PLT. AS PASSENGER THE WHole voyage, BUT FOR ONLY PART, WHEREBY PLT. WAS OBLIGED TO PROCURE ANOTHER CONVEYANCE. For that whereas the said deft., before and at the time of the making of his promise and undertaking hereafter next mentioned, was the master or comman- [*328] der of a certain ship or vessel, called and known by the name of the and which said ship or vessel was then lying and being in certain parts beyond the seas, to wit, at Bengal, and bound on a voyage from thence to England, to wit, at, &c. (venue). And whereas, also, the said deft., so being the master and commander of the said ship or vessel, as aforesaid, thereupon, heretofore, to wit, on the 20th Nov. 1820, to wit, at London aforesaid, in the parish and ward aforesaid, in consideration that plt., at the special instance and request of the said deft., would pay to him, the said deft., a certain sum of money, to wit, the sum of £, of lawful money, &c., for the use and occupation of the starboard side of the great cabin of the said ship (according to the fact), during her expected voyage from aforesaid to England aforesaid, the said deft. then and there faithfully promised the said plt. to suffer and permit her to have the use and occupation of the starboard side of the said cabin of the said ship or vessel, during the said voyage, and to carry and convey, and cause and procure to be caried and conveyed, her, the said plt., in and on board of the said ship or vessel, from aforesaid to England aforesaid, on the said voyage, in a reasonable time then next following. That the said plt., confiding in the said promise and undertaking of the said deft., afterwards, to wit, on the day and year aforesaid, to wit, at, &c. (venue), aforesaid, did pay to the said deft. the said sum of money, and did take possession of the said starboard side of the great cabin of the said ship or vessel, and was then and there accepted and received by the said deft. as a passenger in and on board of the said ship or vessel, to be carried and conveyed in and on board of the said ship or vessel from aforesaid to England aforesaid. Yet the said deft., not regarding his said promise, &c., did not nor would carry or convey, or cause or procure to be carried and conveyed, the said plt. as a passenger in and on board of the said ship or vessel, from aforesaid to England aforesaid, in a reasonable time then next following; but, on the contrary thereof, the said deft., afterwards, to wit, on, &c., in certain parts beyond the seas, to wit, at, that is to say, at, &c. (venue), aforesaid, wrongfully and injuriously hindered and prevented the said plt. from having the free use, occupation, and enjoyment of the said cabin, as she of right, by means of the premises, ought to have had; and then and there wholly neglected and refused any longer to proceed with the said ship or vessel on the said voyage, or to carry or convey, or cause or procure to be carried or conveyed, the said plt. therein, or in any other ship or vessel, during the residue of the said voyage, or in any manner whatsoever to carry or convey her to England aforesaid. That, by means of the said premises, the said plt. was then and there put to great inconvenience, trouble, and expense, to wit, an expense of £300, and was forced and obliged to quit and leave the said ship, and delay proceeding to England for a long space of time, to wit, for the space of three months then next following, and was put to great expense of her moneys, to wit, the expense of £300, in and about the procuring a passage and conveyance in a certain other ship or vessel to England aforesaid, and was also hindered and prevented from following her lawful and necessary affairs and business in England aforesaid, and lost and was deprived of the said money so paid to the said deft., as afore said, and was otherwise much injured and damaged, to wit, at, &c. (venue), aforesaid. See other forms of declarations, Index to 3 Chit. Pl., tit., “Carriers." Evidence for Plaintiff. Proof of Defendant's being a Carrier.] It has been held, that any person undertaking for hire to carry the goods of all persons indifferently, is to be considered a common carrier, Gisbourn v. Hurst, 1 Salk. 249, Cro. Eliz. 596; as, the owners and masters of vessels, Morse v. Slue, 2 Lev. 69; a wharfinger conveying goods from his wharf to the vessel in his own lighters, Maving v. Todd, 1 Stark. 72; hoymen, Wardell v. Mousiliyan, 2 Esp. Rep. 693; bargemen, Rich v. Kneeland, [*329] Cro. J. 330; the proprietors of *stage coaches, or of mail coaches, carrying goods, passengers, &c., White v. Boulton, Pea. Rep. 80; or of common waggons, Jer. Car. 11, &c., Coggs v. Bernard, 2 Ld. Raym. 918, Morse v. Slue, T. Raym. 220, 1 Salk. 249, 282; or of a stage van, Rex v. Middleton, 3 B. & C. 164. Where the deft. is not a common carrier, but has expressly undertaken to carry the goods safely, it is necessary for the plt. to prove what the terms of the deft.'s undertaking were; and he will be liable for any damage which he sustains, arising out of a breach of such undertaking: Robinson v. Dunmore, 2 B. & P. 416. These facts are generally matter of parol evidence, and may generally be proved by the agents or servants who received or assisted in conveying the goods. To prove the ownership of several defts., and their liability as common carriers for the loss of a parcel sent by their coach, the registry-book kept in Somerset House of licenses granted is insufficient, unless they be shown to be connected therewith: Strother v. Willan, 4 Camp. 24. |