way just before the commencement of the journey (q). The breaking down or upsetting of the coach, appears to be primá facie evidence of carelessness on the part of the driver (r). And where too many passengers are received in or upon the coach contrary to statute, the overloading will be most powerful, if not decisive evidence, that the accident arose from the excess (s). If the coach be passing through a place known by the coachman to be dangerous, as under a low or narrow gateway, &c., he is bound to warn the passengers of the danger, so that they may avoid it (t). The coachman must exercise the best and soundest judgment: if he may adopt one of two courses, and select the most hazardous, the owner is liable, if any injury ensue to the passengers (u). And if a passenger, in consequence of the coachman's neglect or unskilfulness, is placed in such a situation, that as a prudent precaution for the purpose of self-preservation, he is induced to leap from the coach, the owners are liable for any hurt he may sustain (x). If places be taken for several persons to go inside a coach together, it is a breach of the contract, to provide for them places in distinct parts of the coach, that is, some in one part of a double bodied coach, and the rest in the other part of such coach (y). In an action against a stage coach proprietor, Lord Kenyon ruled at Nisi Prius, that if a person take a place in a stage coach, and pay at the time only a deposit, as half the fare for example, and is not at the time ready to take his place when the coach is setting off, the proprietor of the coach is at liberty to fill up his place with another passenger: but that if at the time of taking his place he pay the whole fare, in such case the proprietor cannot dispose of his place; but he may take it at any stage of the journey he thinks fit (z). 2. Of the Liability of a Carrier of Goods under the Statute 1 W. 4, c. 68.-It is open to parties by special agreement, to waive rules of law, and liabilities, introduced and enforced for their own benefit. Although, for the purpose of protecting the (q) Sharp v. Grey, 2 M. & Sc. 620; 9 Bing. 457, S. C. (r) Christie v. Griggs, 2 Camp. 79. (s) See Israel v. Clark, 4 Esp. R. 259; 9 G. 4, c. 49. (1) Dudley v. Smith, 1 Camp. 167. (u) Mayhew v. Boyce, 1 Stark. R. 423. (x) Jones v. Boyce, 1 Stark. 493. public from deceit and pretended losses, the common law responsibility of a carrier is peculiarly extensive, still, if he expressly refuse to give goods, unless the party intrusting them to his care agree to restrain such liability, there can be no legal or equitable reason for holding that the carrier is bound beyond the terms expressly agreed upon; in the absence of fraud, or gross and actual negligence, on his part. It was therefore settled, before the statute 1 W. 4, was passed, that if a carrier gave, and could prove that the party received, notice that he, the carrier, would not be liable for the whole, or part, of the value of any goods, or of goods of a particular description, delivered to him, unless informed of their value, and paid an extra remuneration accordingly, it was to be presumed that the owner of the goods agreed to this limitation of the carrier's liability; and the carrier was held not to be liable under such circumstances, in case of a loss not occasioned by his fraud, misfeasance, or gross carelessness, but arising from one of the various accidents or depredations to which the business of a carrier is particularly exposed (a). The object of requiring notice to the carrier of the value of the goods, in these cases, was twofold; first, to obtain a larger premium for the conveyance of valuable parcels; and, secondly, to put the proprietors on their guard (b). But when the carrier relied on this restriction of his ordinary liability, it was held to be incumbent on him to prove clearly that the party charging him, agreed, expressly or impliedly, to such restriction; and therefore, although it had become, before the statute 1 W. 4, the almost universal practice amongst carriers, to give notice that they would not be responsible for goods of a certain value (generally 57.) "unless entered as such, and paid for accordingly," and it was well known by the public that such notices were so given; still the carrier, when sued for the loss of goods, was compelled to adduce clear and explicit evidence, fixing the plaintiff, or his agent, with full knowledge of the existence of the particular notice by which such carrier attempted to obviate (a) See Clay v. Willan, 1 H. Bla. 298; Izett v. Mountain, 4 East, 371; Nicholson v. Willan, 5 id., 507; Clarke v. Gray, 6 id., 570, 564; Mayor of Doncaster v. Day, 3 Taunt. 262; Maving v. Todd, 1 Stark. R. 72. The general rules upon this subject were stated by the Court, in Macklin v. Waterhouse, and Riley v. Horne, 2 M. & P. 319, 331; and 5 Bing. 212, 217, S. Cases. (b) See per Bayley, J., Bignold v. Waterhouse, 1 M. & Selw. 261, or limit the common law liability (c). And it was decided that there was no presumption that the plaintiff knew of the carrier's notice, although it was proved that he took in, for three years, a newspaper wherein the notice was advertised weekly (d). It was also held that however conspicuously the carrier's notice might have been put up, so that it was highly improbable that the party bringing goods to his office did not see the notice there erected, still there was only ground for presumption, even in that case, that the notice was seen; and that if, in point of fact, such party did not, or from ignorance could not, read the notification, and that matter were proved by him, the notice was inoperative, and the carrier was considered liable as if it were not given (e). The late statute 1 W. 4, c. 68, materially varies the common law upon this subject. It is intituled "An Act for the more effectual protection of mail contractors, stage-coach proprietors, and other common carriers for hire, against the loss of or injury to parcels or packages delivered to them for conveyance or custody, the value and contents of which shall not be declared to them by the owners thereof." It recites, that "by reason of the frequent practice of bankers and others of sending by the public mails, stage coaches, waggons, vans, and other public conveyances by land, for hire, parcels and packages containing money, bills, notes, jewellery, and other articles of great value in small compass, much valuable property is rendered liable to depredation, and the responsibility of mail contractors, stage-coach proprietors, and common carriers for hire is greatly increased; and that, through the frequent omission by persons sending such parcels and packages, to notify the value and nature of the contents thereof, so as to enable such mail contractors, stage-coach proprietors, and other common carriers, by due diligence, to protect themselves against losses arising from their legal responsibility, and the difficulty of fixing parties with knowledges of notices, published by such mail contractors, stage-coach proprietors, and other common carriers, with the intent to limit such responsibility, they have become exposed to great and unavoidable risks, and have thereby sustained heavy losses: " it is therefore enacted in section 1, that no mail contractor, stage-coach proprietor, or other common carrier by (c) Clark v. Gray, 4 Esp. R. 177, 178. (d) Rowley v. Horne, 3 Bing. 2; 10 Moore, 247, S. C. (e) Kerr v. Willan, 2 Stark. R. 53; Davis v. Willan, id., 279. land for hire shall be liable for the loss of or injury (f) to any article or property of the description following; that is to say, gold or silver coin of this realm, or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, clocks, or time-pieces of any description, trinkets, bills, notes of the governor and company of the banks of England, Scotland, and Ireland, or of any other bank in Great Britain or Ireland, orders, notes, or securities for payment of money, English or foreign stamps, maps, writings, title deeds, paintings, engravings, pictures, gold or silver plate or plated articles, glass, china, silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials, furs, or lace (g), or any of them, contained in any parcel or package which shall have been delivered, either to be carried for hire or to accompany the person of any passenger in any mail or stage coach, or other public conveyance, when the value of such article, or articles, or property contained in such parcel or package, shall exceed the sum of ten pounds; unless at the time of the delivery thereof at the office, warehouse, or receiving house (h) of such mail contractor, coach proprietor, or other common carrier, or to his, her, or their book-keeper, coachman, or other servant, for the purpose of being carried, or of accompanying the person of any passenger as aforesaid, the value and nature of such article or articles, or property, shall have been declared by the person sending or delivering the same, and such increased charge as is hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package. The second section enacts, that when any parcel or package containing any of the said articles shall be so delivered, and its value and contents declared as aforesaid, and such value shall exceed the sum of ten pounds, it shall be lawful for such mail contractors, stage-coach proprietors, and other common carriers, to demand and receive an increased rate of charge, to be notified by some notice (i) affixed in legible characters in some public and conspicuous part of the office, warehouse, or other receiving house, where such parcels or packages are received by them for the purpose of conveyance, stating the increased rates of charge required to be paid (k), over and above the ordinary rate of carriage, as a compensation for the greater risk and care to be taken for the safe conveyance of such valuable articles; and all persons sending or delivering parcels or packages containing such valuable articles at such office, shall be bound by such notice, without further proof of the same having come to their knowledge. (i) The following decisions, before the statute, upon the usual carrier's notice in restriction of his liability at common law, seem equally applicable to the above enactinent. A carrier does not sufficiently notify the limitation of his common law responsibility, by pasting upon the door of his office, where goods are received and delivered, a bill, blazoning the advantages of his conveyances, but stating the notice respecting his liability in small characters, at the bottom of such bill; Butler v. Heane, 2 Camp. 415. The notice, to be of any avail, must be in such large characters, that a person delivering goods at the office cannot fail to read it, without gross indifference or negligence; Clayton v. Hunt, 3 Camp. 27. A notice by the carrier to the consignor, was held to be notice to the consignee who directed the goods to be sent; Maving v. Todd, 1 Stark. R. 72. And if the goods were sent to the consignee, by his agent in the country, the carrier was not liable, if he proved that the former was aware of the carrier's notice, although the agent was ignorant thereof; Alfred v. Horne, 3 Stark. R. 136; Mayhew v. Eames, 3 B. & C. 601; 5 D. & R. 484, S. C. And it was held that the carrier did not waive the notice by having, on former occasions, made allowances to the plaintiff for damage, without inquiring into the cause of such damage; Evans v. Soule, 2 M. & Selw. 1. (k) The act does not prescribe the amount of the extra charge. |