RIERS BY LAND. to wit, at, &c. And whereas also, the said A. B. whilst the AGAINST CARsaid C. D. was such common carrier as aforesaid, to wit, on, &c. at, &c. (the real place,) to wit, at, &c. (the venue which is transitory,) caused to be delivered to him the said C. D. and the said C. D. then and there accepted and received of and from the said A. B. a certain box, containing divers goods and chattels, to wit, &c. (specify the articles) (c) of the said A. B. of great value, to wit, of the value of L.-, to be safely and securely carried and conveyed by him the said C. D. from aforesaid to aforesaid, and there, to wit, at, &c. aforesaid, safely and securely to be delivered for the said A. B. for certain reasonable reward to him the said C. D. in that behalf. Yet the said C. D. not regarding his duty as such common carrier as aforesaid, but contriving and fraudulently intending, craftily and subtly to deceive, defraud and injure the said A. B. in this behalf, did not, nor would safely or securely carry or convey the said box and its contents aforesaid, from aforesaid to aforesaid, nor there, to wit, at — aforesaid, safely or securely deliver the same for him the said A. B. but on the contrary thereof he the said C. D. 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 C. D. in the premises, the said box and its contents aforesaid, being of the value aforesaid, became and were *wholly lost to the said A. B. to wit, at, &c. afore- [* 321] said. And whereas also, heretofore, to wit, on, &c. aforesaid, at, &c. Second count for not carryaforesaid, to wit, at, &c. aforesaid, the said A. B. caused to be deliver- ing within a ed to the said C. D. a certain other box, containing certain other goods reasonable and chattels, to wit, &c. of him the said A. B. of great value, to wit, time, and for losing the box of the value of L, to be taken care of, and safely and securely (d). carried and conveyed by him, the said C. D. from aforesaid to aforesaid, and there, to wit, at -aforesaid, to be safely and securely delivered by the said C. D. for the said A. B. within a reasonable time then next following, for certain hire and reward to the said C D. in that behalf; and although the said C. D. then and there accepted, and had and received the said last-mentioned box 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 C. D. not regarding his duty in that behalf, but contriving, (c) It is said that the goods must be set out with the same certainty as in trover. 2 Ventr. 78. Com. Dig. Action Case Negligence, C. 2. (d) See the counts in 3 Wils. 429. As the above count states the loss of VOL. II. the goods it is sustainable, though 2 H RIERS BY LAND. aforesaid, nor there, to wit, at AGAINST CAR and fraudulently intending, craftily and subtly to deceive and defraud the said A. B. 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 box and its contents aforesaid, from aforesaid to aforesaid, safely or securely deliver the same for the said A. B but hath hitherto wholly neglected and refused so to do; and by means of the negligence and improper conduct of the said C D. in that behalf, the said last-mentioned box and its contents aforesaid, have not been delivered to or for him the said A. B. at aforesaid, or elsewhere, and are wholly lost to the said A. B. to wit, at, &c. aforesaid. [⚫ 322] Against an innkeeper for the loss of a box (e). *[Add a count in trover, if there be any evidence of a conversion, 3 East 70. Trover lies against a carrier, though he by mistake, deliver goods to a wrong person. Peake. C. N. P. 42.-Jones on Bailm. 96 to 99.; but trover cannot be supported against a carrier, or wharfinger, where the goods have been stolen or lost, 5 Burr. 2825.-1 Ventr. 223. Conclude as ante, 287.] [Commencement as ante, 287.-] For that whereas, by the law and custom of this realm, innkeepers, who keep common inns for the reception, lodging, and entertainment of travellers putting up at, and abiding in, the same, are bound to keep the goods and chattels brought by such travellers into, and being within their respective inns, safely, and without any diminution or loss. And whereas the said C. D. before, and the time of the loss hereinafter next mentioned, was, and from thence hitherto hath been, and still is, an innkeeper, and as such innkeeper, he the said C. D. hath for and during all that time kept, and still doth keep, a certain common inn, for the reception, lodging, and entertainment of travellers, that is to say, a certain inn, commonly called or known by the name and sign of —, situate and being at, to wit, at. &c. And whereas also the said C. D. so being such innkeeper, and so keeping the said inn as aforesaid, the said A. B. (or if his servant, 66 one E. F. the servant of the said A. B.") heretofore, to wit, on, &c. aforesaid, at, &c. aforesaid, put up, and was then and there received into the said inn as a traveller by the said C. D. and then and there brought into the said inn a certain box, containing certain wearing apparel, goods, (e) As to the liability, &c. of an cient mode of declaring, Bac. Ab. tit. A and chattels, to wit, &c.-*(enumerate the chattels)-of him the said A. B. of great value, to wit, of the value of L., and which said box and its contents aforesaid were then, and from thence, until, and at the time of the loss hereinafter mentioned within the said inn, and that the said A. B. (or "the said E. F. the servant of the said A. B.”) during all that time abided as a traveller therein, to wit, at, &c. aforesaid; yet the said C. D. so being such innkeeper as aforesaid, not regarding his duty as such innkeeper, did not keep the said box and its contents aforesaid, so brought into and so being in the said inn as aforesaid, safely, and without diminution or loss, but on the contrary thereof, the said C. D. and his servants so negligently and carelessly behaved and conducted themselves in that behalf, that afterwards, and whilst the said A. B. (or " the said E. F. the servant of the said A. B") so abided in the said inn as aforesaid, to wit, on the same day and year aforesaid, the said box and its contents aforesaid were, by and through the mere carelessness, negligence, and default of the said C. D. and his servants in that behalf, wrongfully and unjustly taken and carried away by some person or persons to the said A. B. (or "to the said A. B. and E. F. his said servant") unknown, and were, and still are thereby wholly lost to the said A. B. to wit, at, &c. aforesaid.—[Add a count in trover, if there be a probability of supporting it in evidence, ante, 322. 5 Burr. 2825. 1 Ventr. 223. and conclude as ante, 287.] ད AGAINST INNKEEPERS. [* 323 ] [324] [Commencement as ante, 287.-] For that whereas heretofore, to Against a bai lee for negli wit, on, &c. at, &c. the said A. B. at the special instance and request gence (ƒ). of the said C. D. caused to be delivered to him the said C. D. certain goods and chattels, to wit, &c. of him the said A. B. of great value, to wit, of the value of L- to be by the said C. D. safely and securely loaded on board a certain ship or vessel, at, &c. for the *said A. B. for reasonable reward (g) to the said C. D. on that behalf, the said C. D. then and there had and received the said goods and chattels for the purpose aforesaid; yet the said C D. not regarding his duty in that behalf, afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, by himself and his servants in that behalf, conducted himself so carelessly, negligently and improperly in and about the loading of the said goods and chattels, on board the said ship or vessel, that by and through the mere negligence and improper conduct of the said C. D. and his servants in that behalf, the said goods and chattels became and were greatly broken, (f) See the use of declaring in case ante, 219, 220. 8 Wentw. Index, 22. instead of assumpsit, ante, 219, 220.; as to the different description of bai-, jees, ante, 142. and the several precedents, 142 to 162. which may easily be applied to the declaration in case. See other printed precedents, (g) If no reward were to be paid, this should be omitted, Coggs v. Bernard, 2 Ld. Raym. 909.-1 H. B. 158. —5 T. R. 143 ; ante, 142. as to mandatum, being the second deseription of bailment. damaged, and destroyed, and wholly lost to the said A. B. to wit, at, &c. aforesaid-[It is advisable in general against a bailee to add a count, stating that the defendant "had the loading of the hogshead, c." or the performance of the matter which it was his duty to perform, which count may be framed as in Govett v. Radnidge, 3 East. 62; and if there be any evidence of a conversion a count in trover should be added, and conclude as ante, 287.] [Commencement as ante, 287.] For that whereas the said A. B. heretofore, to wit, on, &c. at, &c. at the special instance and request of the said C. D. bargained with the said C. D. to buy of him the said C. D. a certain horse, at and for a certain price or sum of money, to wit, the sum of L., and the said C. D. by then and there falsely and fraudulently warranting the said horse to be sound and quiet in harness, then and there sold (i) the said *horse to the said A. B. for the said sum of L., of lawful, &c. then and there paid by the said A. B. to the said C. D. for the same; whereas, in truth and in fact, the said horse was, at the time of the said warranty and sale thereof, unsteady, restive, and ungovernable in harness, and hath, from thence hitherto, so remained and continued; and the said A. B. in fact saith, that the said C. D. by means of the premises on the day and year aforesaid, at, &c. aforesaid, falsely and fraudulently deceived him the said A. B. on the sale of the said horse as aforesaid, and thereby the said horse afterwards, to wit, on, &c. aforesaid, not only became of no use or value to the said A. B. but also then and there greatly kicked, hurt, injured, and spoiled a certain other horse of him the said A. B. of great value, to wit, of the value of L., and thereby also the said A. B. was then and there put to great expense of his moneys, in the whole amounting to a large sum of money, to wit, the sum of L., in and about the feeding, and taking care of and selling and disposing of the said horse, to wit, at, &c. aforesaid. And whereas also, the said A. B. afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, bargained with the said C. D. to buy of him the said C. D. a certain other horse, and the said C. D. by then and there falsely warranting the said last mentioned horse to be sound, falsely and fraudulently induced the said A. B. then and there to buy, and he WARRANTIES. the said A. B. did then and there buy of him the said C. D. the said DECEITFUL last-mentioned horse for a certain other large sum of money, to wit, the sum of L., of like lawful money, whereas in truth and in fact, the said last-mentioned horse, at the time of the said last-mentioned warranty and sale was not sound, but then was, and thence hitherto hath been, and still is, unsound, and of no use or value to the said A. B. to wit, at, &c. aforesaid. And so the said A. B. saith, that the said C. D. falsely and fraudulently deceived him the said A. B. on the sale of the said last-mentioned *horse as aforesaid, to wit, at, &c. aforesaid -[Conclude as ante, 287.] [326] [Commencement as ante, 287.-] For that whereas the said A. B. For falsely rebefore and at the time of the committing of the grievance by the said third person presenting a C. D. as hereinafter next mentioned, was and from thence hitherto fit to be trusthath been and still is a and the trade and business of a ed (4). hath, for and during all that time, exercised and carried on, and still doth use, exercise, and carry on, to wit, at, &c. And whereas also the said A. B. so being a, and so using, exercising, and carrying on, the said trade and business as aforesaid, one E. F. before the committing of the grievance by the said C. D. as hereinafter next mentioned, to wit, on, &c. at, &c. aforesaid, applied to the said A. B. and then and there requested the said A. B. to sell goods on credit to him the said E. F. in the way of his the said A. B.'s said trade and business of a- ———. And the said A. B. being then and there unacquainted with the character and circumstances of the said E. F. was then and there referred by him to the said C. D. for information respecting the same, whereof the said C. D. afterwards and before the sale of any goods by the said A. B. the said E. F. to wit, on, &c. at, &c. aforesaid, had notice from one G. H. the servant of the said A. B. and the said C. D. was then and there interrogated by the said J. K. on the part of the said A. B. respecting the character and circumstances of the said E. F. Nevertheless the said C. D. well knowing the premises, and that the said E. F. was then and there in bad and insolvent circumstances, and unfit to be trusted with goods *on credit, but contriving, and fraudulently in [327] tending craftily and subtly to deceive and injure the said A B. in this behalf, on the day and year aforesaid, falsely, fraudulently, and deceit (k) In order to support an action of this nature, the representation must be made malo animo, 2 East. 107. 3 B. & P. 367. 2 New. Rep. 241. 1 Taunt. 558.-See the precedents in Pasley v. Freeman. 3 T. R. 51.Eyre. v. Dunsfold, 1 East. 318. Haycraft v. Creasy, 2 East. 92. Tap. v. Lee, S B. & P. 367. where also the principles upon which this action is |