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1812.

Court should be of opinion that the defendants were protected by their notice.

BECK against EVANS.

Jervis accordingly moved upon this point, and also upon the ground of a misdirection; upon the first he cited Clay v. Willan (a), Izett v. Mountain (b), and Nicholson v. Willan (c), to shew that these notices had been established to be binding on the public; and in Ellis v. Turner (d), where the carrier, notwithstanding such notice, was held liable for the loss of the goods, it appeared that he had carried them beyond the place to which they were consigned, and that was the ground on which he was held liable. Upon the ground of misdirection, he contended that the waggoner was not bound upon notice of the leakage to unload his waggon at any intermediate stage of the journey; and that it appeared, that as soon as he had occasion to unload the first parcel of goods for delivery, he looked to the cask , and removed it, which was all that he was bound by law to do.

Lord ELLENBOROUGH, C.J. If the first point, upon which this rule is prayed, was unmixed with any other upon which the defendants were liable, I should be disposed to have it considered; not that my opinion upon it is in favour of the defendants, but on the contrary I am inclined against them. The notice, although in its terms it is made to extend to any goods of what nature or kind soever, cannot be indefinite, but must be construed with reference to the subject matter, and

(a) 1 H. Bl. 298.
(c) 5 East, 507.

(6) 4 East, 371.
(d) 8 T. R. 531.

to

1812.

ВЕск against EVANS.

to cases where the party has no means of knowing of what nature the goods are. In that case the party stipulates that he will not be answerable for goods above the value of 51., unless the value has been notified to him, and they are paid for as such. But this was known to the defendants to be a cask of brandy, and does not fall within the description of cash or notes, or of any of the goods enumerated in the notice. Such is the inclination of my opinion upon this point, and yet it is singular enough that it has never presented itself at Guildhall, for these last ten years that I have sat there. But upon the other point, I think the carrier does not stipulate for exemption from the consequences of his own misfeazance; and if goods are confided to him, and it is proved that he has misconducted himself in not performing a duty which by his servant he was bound to perform, that is such a misfeazance as, if the goods thereby become damaged, his notice will not protect him from. Now here it appears that the waggoner was informed more than once of the leakage, after which notice, it was a duty he owed to his employers to have the leak examined and stopped at one of the stages where he halted. That being so, the carrier became clearly liable on this ground, independently of the other point in the case, and therefore I cannot consent to disturbing the verdict.

GROSE, J. The carrier could entertain no doubt that the goods were above the value of 51.

LE BLANC, J. I think the exemption of carriers from general liability, by reason of notices of this sort, has been carried to the utmost extent, and cannot be supported on

s 2

any

1812.

BECK against Evans.

any other ground than this, that they shall not be held liable to a large amount, where they only get a small reward for the carriage. They are therefore exempted from liability, where the goods are of a much larger value than from a knowledge of their bulk or quality they could possibly guess them to be. But that cannot apply to goods of a large bulk and known quality, where the value must be obvious. It is singular that the question has not arisen before this; perhaps the way to account for it is that carriers have acquiesced in their liability in such

cases.

BAYLEY, J. I doubt whether the damage here falls within the terms of the notice, “lost, stolen, or damaged,” for this was owing to gross negligence.

Rule refused.

Thursday,

ANDERTON against Beck and PEARSON.
Nov. 12tb.
Where the

THE

THE plaintiff declared for goods sold and delivered to plaintiff in Yorkshire on

the amount of 661., and upon the common money the 26th of De; counts. The defendants pleaded the general issue; and cember received a bill of ex the question turned upon whether one of two bills of change, pay: able in London, exchange, which had been remitted by the post from the which became due on the

defendants to the plaintiff after the delivery of the goods 28th, and kept and in satisfaction of the demand, which bill had been it in his own hands until the ultimately dishonoured, was to be taken as payment, on ac29th, when he sent it by post

count of the plaintiff's having made it his own by laches; to his bankers at Lincoln, who

for if so, the goods were paid for, and the defendants duly forwarded it to London for presentment, and the bill was dishonoured : Held that the plaintiff by keeping it in his hands until the 29th, was guilty of laches,

were

1812.

were entitled to a verdict; and Bayley, J. was of this opinion at the trial before him at York, where the verdict passed for the defendants under his direction; but he reserved leave to move to set it aside and enter a verdict for the plaintiff for 301., the amount of the dishonoured bill.

ANDERTON

against ВЕск. .

Richardson now moved accordingly, and after some assistance from the learned Judge's report, and the finding of the jury, the facts appeared to be these.

The plaintiff lived at Cullingworth, four miles from Keighley, the post town where the defendant Beck lived; Pearson, the other defendant, lived at Steeton, where the business was carried on, four miles also from Keighley, in an opposite direction from the plaintiff's residence, and in the line of the post from Bradford to Skipton. The bill in question was dated Leeds, 26th of October 1811, and drawn by W. and E. Prest on Messrs. Boldero, Lushington, and Co. for 301., payable two months after date to J. Tyne or order, and specially indorsed by the defendants to the plaintiff. This bill became due in London on Saturday the 28th of December, and it appeared from circumstances that the letter from the defendants inclosing this and the other bill had been received by the plaintiff at Cullingworth on the 26th, and that he acknowledged the receipt of it by a letter which was put into the post at Keighley before one o'clock on Friday the 27th, within the post hours of that day. The plaintiff had no agent in London, but having dealings with Smith, Ellison, and Co. bankers at Lincoln, he inclosed the bill to them in a letter put into the post at Keighley on Sunday the 29th of December, and they received it either on the evening of Monday the 30th, after their bank had closed, or on the morning of Tuesday the 31st,

and

1812.

ANDERTON

against ВЕск. .

and it was by them sent by Tuesday's post to Smith, Paine, and Co. their bankers in London, by whom it was received on Thursday morning, the 2d. of January, (the course of the post from Lincoln to London being two days,) and presented the same day for payment at Boldero and Co.'s, who had stopped payment at the close of the 1st of January, and by whom it was dishonoured, of which immediate notice was given to the bankers at Lincoln, by them to the plaintiff by the next post, and by him to the defendants the same day. It was proved that a letter put into the Keighley post-office on Friday before one o'clock, would be delivered to Beck on the Saturday, and he might have sent it to Pearson on the forenoon of that day.

Upon these facts he contended that the plaintiff was not bound to send the bill direct to London, not having any agent there, but might, as he had done, forward it through the hands of his bankers at Lincoln; by which course it would have been impossible, even if the bill had been forwarded immediately after its receipt by the plaintiff, that it should have reached London by the day of payment. That the bill being so near due when the plaintiff received it, as to make it impossible to present it on the day of payment, was like a bill payable at sight (a), or on demand; in which case it was only incumbent on the plaintiff to present it for payment, or put it into a course of negotiation, within a reasonable time. That the bankers at Lincoln had caused no delay in forwarding it, and the bankers in London had even presented it a day sooner than by law they were bound (b). If the plaintiff had sent the bill to Lincoln the next day

(a) 1 Show. 161., Debers v. Harriot.
(6) 2 Camp. N. P. C. 537., Rickford v. Ridge.

after

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