merchants. The defendant, however, denied that there was any such custom.

As to the second point, the facts were as follows: On the 24th Jan. 1870, the defendant received a telegram informing him of the destruction by fire of the Knightsbridge, which was insured with her freight for 21,000l. The policies on this ship were in the hands of the plaintiffs on the defendant's account. The same day the defendant wrote to the plaintiffs the following letter:

Gentlemen,-The policies on the ship Knightsbridge having been refused to be handed over to me this morning by your Mr. Theobald, with a reply that what I might require I had better inform you by letter, therefore beg to say that the ship Knightsbridge having been destroyed by fire at sea it is necessary for me to give notice of abandonment to the respective underwriters and for this purpose may I ask you to be good enough to cause them to be handed over to the bearer, as no time should be lost.-Your obedient servant, GEO. STANTON.

The same day the plaintiffs wrote to the defendant the following reply:

Sir,-In reply to your letter of this date we beg to say that as the insurance on the Knightsbridge was effected by us and in our name, we will give the requisite notice of abandonment to the respective underwriters.-Your obedient servants, BARING BROTHERS & Co. In answer to the last-mentioned letter the plaintiff, on the 25th Jan. 1870, wrote as follows:

Gentlemen, I am this morning in receipt of your letter of yesterday's date as to the insurance on the Knightsbridge. In reply, I beg to repeat my request for the policies, and offer to pay you the premiums in respect of them...

The plaintiffs did not give up the policies, but themselves collected the insurance moneys and charged their usual commission for so doing.

On the 10th Feb. 1876, the plaintiffs took out a summons, now adjourned into court, to the effect (1) that in taking the accounts directed by the decree the plaintiffs might be allowed the full amounts debited to the defendant in the accounts they had brought in for insurances on the defendants' ships, or their freights, or ship's stores, or disbursements, without giving credit to the defendant for the discount received by or allowed to them by underwriters in respect of such insurances as claimed by the defendant.

(2.) That the plaintiffs might be allowed to retain as their own moneys the sum of 5257., being the difference between the sum of 21,000l. (the sum for which the ship, the Knightsbridge, was insured by the plaintiffs), and the sum of 20,4751. (the sum for which credit was given by the plaintifis, as mentioned in their claim for the total loss of the same ship), which sum of 5251. was claimed and retained by them as their commission (at the rate of 27. 108. per 1001.) for collecting the moneys payable for such loss, and that the defendant might be ordered to pay the costs of the

summons.

Cotton, Q.C. and J. Kaye, in support of the summons. On the first point they relied on Great Western Insurance Company v. Cunliffe (ante, Vol. 2, p. 298; 30 L. T. Rep. N. S. 661; L. Rep. 9 Ch. App. 525). They also cited

Xenos v. Wickham, 14 C.B., N.S., 435, 460;
Power v. Butcher, 10 B. & C. 329.

On the second point, they contended that as the insurance had been effected by the plaintiffs, not at the request of the defendant, but on their own interests, they were entitled to collect the insurance money and charge their commission.

[CHAN. DIV.

Kay, Q.C. and Caldecott, for the defendant.Great Western Insurance Company v. Cunliffe (sup.) does not apply to this case at all. The distinction is, that the defendant in that case was employed as an insurance broker and nothing else; here the plaintiffs are general agents as merchants and not simply insurance brokers. They are general agents on terms of special remuneration, which does not include the right to charge specially as insurance brokers. Any profit, therefore, which they made over and above their commission as agents they must account for to their principal:

Turnbull v. Garden, 20 L. T. Rep. N. S. 218; 38 L. J.
331, Ch.;

Queen of Spain v. Parr, 21 L. T. Rep. N. S. 555; 39
L. J. 73, Ch. ;

Williams v. Stevens, L. Rep. 1 P.C. 352.

As to the second point. The plaintiffs had no interest in the ship and no claim whatever on the policies except for the premiums they had paid, and these the defendant offered to repay them. Neither was the defendant bound to the plaintiffs to employ them as his agents in any special manner. When, therefore, he demanded the policies on the Knightsbridge, there was a revocation of their authority as agents in their particular transaction, which in point of law they could not resist. Therefore, as they refused to comply with his demand, and insisted on collecting the policy moneys themselves, they are not entitled to charge

him with the usual commission.

Cotton, Q.C., in reply.

Lord

The VICE-CHANCELLOR.-Upon the first point the case is conclusively covered by the decision in Great Western Insurance Company v. Cunliffe (sup.), which makes it impossible for me to adhere to any opinion adverse to that decision. Justice James there says (p. 300): "Whether you call him a broker or not, the person who is the agent for the merchant or anybody else, by a well established practice obtains the insurances, and receives a discount of 5 per cent., which he puts into his own pocket. He is paid by the underwriter instead of by his principal. And then, by a practice quite as well known, recognised by everybody connected with the business, recognised by the courts of law of this country, referred to over and over again, there is another thing-there is a gratuity which the broker receives upon the settlement of the accounts, being 12 per cent. upon the balance, if the balance should happen to be a favourable one, that is, if the underwriter finds it to be a profitable account he gives 12 per cent. upon it to the broker who brought the business to him. It is not, as I gather, upon the particular transaction, but it is upon the whole result of transactions which the broker has introduced to the particular underwriter, and is calculated upon all the business during the whole year. That is the established remuneration which a broker receives for effecting that business, and in my opinion that is as right a thing as the 5 per cent." Then the evidence of the plaintiffs, although it does not conclusively establish the custom for which they contend, yet it proves the system on which they carried on their business. I cannot, therefore, in the face of that evidence and of the decision in Great Western Insurance Company v. Cunliffe, come to any other conclusion than that the plaintiffs are entitled to the discount which they claim.

As to the second point, that also, in my opinior, is abundantly clear. I quite agree that the

Ex. Div.]

plaintiffs were general agents of the defendant, and that unless their authority was revoked they were entitled to carry on the transaction to a conclusion. The defendant, however, was not bound to them by any special agreement, and he was therefore entitled to revoke their authority in whole or in part. True, they might have refused to continue to act as his agents altogether when he demanded back the policies, unless he permitted them to collect the insurance money. They did not do this, however, but insisted in collecting the money, and paid themselves a commission. In my opinion that was an unreasonable and unlawful claim on their part. In my opinion, the defendant had a right to say, "don't you receive that insurance money; I am ready to receive it myself." They choose, however, to go on and collect it perforce, but that did not give them the right to receive that which the defendant would have received himself.

The defendant, therefore, is right on the second point and wrong on the first. I make no order as to costs.

Solicitors for plaintiffs, Markby, Tarry, and Stewart.

Solicitors for defendants, Shum, Crossman, and Crossman.

EXCHEQUER DIVISION.

Reported by H. LEIGH and H. F. DICKENS, Esqrs., Barristersat-Law.

Jan. 20 and 21, 1876.

(Before BRAMWELL, AMPHLETT, and HUDDLeston,

BB.)

COHEN V. THE SOUTH EASTERN RAILWAY COM

PANY.

Carrier-Railway company-Carriers by rail and steam vessel-Passengers' luggage-Liability for loss of-Special contract-Signature of by passengers-Conditions limiting liability. The luggage of a passenger by railway comes within sect. 7 of the Railway and Canal Traffic Act 1854 (17 & 18 Vict. c. 31), fixing the liability of railway companies for the loss of or injury to any articles, goods, or things in the receiving, forwarding, or delivering thereof," and no condition therefore limiting the company's liability in respect of such luggage is binding, unless it be a "just and reasonable one," and be embodied in a special contract, signed by the passengers or the person delivering such luggage to the company jor carriage.

By sect. 16 of the Regulation of Railways Act 1868 (31 & 32 Vict. c. 119), sect. 7 of the Railway and Canal Traffic Act is incorporated,fand its provi sions extended and made applicable to luggage conveyed bg railway companies on board steam vessels used by them for the purpose of carrying on a communication between any towns or ports. Stewart v. The London and North-Western Railway Company (19 L. T. Rep, N.S. 302) discussed and distinguished.

By the first count of his declaration the plaintiff charged that the defendants were carriers of passengers and their luggage by sea from Boulogne, in the Republic of France, to Folkestone, and thence by land from Folkestone to London; and in consideration that the plaintiff caused his wife to become and be a passenger, to be carried, with her luggage, by sea from Boulogne to Folkestone,

[Ex. Div.

and thence by land from Folkestone to London aforesaid, for reward then paid hy the plaintiff to the defendants in that behalf, the defendants promised the plaintiff to use all due and reasonable care in so carrying the plaintiff's wife and her said luggage; and all conditions were fulfilled, and all times elapsed necessary to entitle the plaintiff to have the defendants perform their said promise; yet the defendants did not use due and reasonable care in carrying the said luggage, but by the negligence of the defendants, while the said luggage was being carried by them by sea from Boulogne to Folkestone, a certain trunk, containing wearing apparel of the plaintiff's wife, and other things belonging to the plaintiff, being a part of the said luggage, fell into the sea, whereby the said trunk, and the contents thereof, were greatlylinjured, &c., and allegations of damage to the plaintiff.

By the second count the declaration charged that the defendants were carriers of passengers and their luggage, as in the first count mentioned for reward to the defendants, and the defendants, at the request of the plaintiff, received the plaintiff's wife as a passenger, with her luggage, including the trunk in the first count mentioned, to be by them, as such carriers, safely and securely carried by sea from Boulogne to Folkestone, and thence by land from Folkestone to London. for reward then paid by the plaintiff to the defendants; yet the defendants did not safely and securely carry the said trunk by sea from Boulogne to Folkestone aforesaid, but while the said trunk was being so carried by them as aforesaid, it fell into the sea and was injured, and the plaintiff suffered the damage in the first count mentioned, and the plaintiff claims 1007.

For a fifth plea (amongst others), to the whole of the declaration the defendants say, that they are a railway company incorporated for the conveyance of passengers with their luggage within the United Kingdom, and upon lines of railway situated therein, and that Boulogne in the declaration mentioned is a place or town in the Republic of France, and beyond the extent of the defendants' lines of railway; and that the said damage to the said luggage in the declaration mentioned, did not happen or occur whilst the said luggage was being carried or conveyed on the defendants' line or lines of railway; and that the plaintiff caused his said wife and her luggage to be received by the defendants, as the same were received by the defendants, to be carried as in the declaration mentioned; and under a special contract between the plaintiff's said wife, as agent for the plaintiff and the defendants, and subject to certain conditions contained in the said contract, and set out in a certain through ticket taken by the plaintiff's said wife, as agent for the plaintiff, from the defendants, one of which conditions was that the defendants would not be responsible for luggage if the value thereof exceeded 6l. And the defendants say that the said luggage of the plaintiff's wife, delivered to the defendants to be carried by them as in the declaration mentioned, exceeded the value of 61.

Replication to the said fifth plea, that the defendants are a railway company authorised to build, or buy, or hire, and to use, maintain, and work, or to enter into arrangements for using, maintaining, and working steam vessels, for the purpose of carrying on a communication between the towns or ports, amongst others, of Folkestone and Boulogne aforesaid, and to take tolls in respect

Ex. Div.]

of such steam vessels, within the meaning of the 11th section of the Railways Regulation Act 1868; and that in carrying the plaintiff's wife and her luggage from Boulogne to Folkestone aforesaid the defendants were acting in pursuance of such authority, and the vessel on board of which the plaintiff's wife and her luggage was carried was a steam vessel, and the carrying of the plaintiff's wife and her luggage was a carrying of traffic within the meaning of the said section; and the matters and things in the declaration mentioned happened after the passing of the said Act, and all things were done and happened, and all times elapsed, so as to make the provisions of the Railway and Canal Traffic Act applicable to the matters and things in the declaration mentioned, and binding in all respects on the defendants. And that the alleged special contract in the said plea mentioned related to the receiving, forwarding, or delivering of articles, goods or things within the meaning of the 7th section of the said last-mentioned Act, and that such special contract was not signed by the plaintiff.

The third replication repeated the allegations in the last replication contained, except the allegation that the contract was not signed by the plaintiff; and further alleged that the condition in the plea mentioned was not just or reasonable.

Demurrer and joinder in demurrer to the fifth plea, on the ground that the special contract was within sect. 7 of the Railway and Canal Traffic Act, and was not alleged to have been signed by the plaintiff, and that the condition was not just and reasonable.

Demurrer and joinder in demurrer to the second and third replications, on the ground that they did not show that the contract alleged in the fifth plea was within the provisions of the Railway and Canal Traffic Act.

The plaintiff's points.-First by virtue of the Railways Regulations Acts of 1868 and 1871, the provisions of the Railway and Canal Traffic Act are extended to goods and traffic carried by Railway companies by sea, whether by their own vessels or otherwise; secondly, the luggage, the loss of which is complained of. is within the provisions of the 7th section of the Railway and Canal Traffic Act as so extended; thirdly, the special contract alleged in the fifth plea is a special contract within the meaning of the said section, and was not signed by the plaintiff or anyone on his behalf, and the condition is therefore void; fourthly, the condition that the com. pany will not be liable in any case if the value of the luggage exceeds 61. is an unreasonable condi tion, and therefore void.

Points for the defeudants.-First, the luggage, the loss of which is complained of, is not within the provisions of sect. 7 of the Railway and Canal Traffic Act; secondly, the provisions of the said section do not extend to the contract or duty declared upon; thirdly, that the special contract alleged in the fifth plea is not a special contract within the meaning of the said section; fourthly, the conditions of the said contract are reasonable.

The following sections of the several Acts of Parliament bearing on the question are material.

The Railway and Canal Traffic Act 1854 (17 & 18 Vict. c. 31) enacts:

[Ex. Div.

Sect. 7.-Every such company as aforesaid shall be liable for the loss of or for any injury done to any horse, cattle, or other animals, or to any articles goods, or things, in the receiving, forwarding, or delivering thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, every such notice, condition, or declaration being hereby declared to be null and void; provided always that nothing herein contained shall be construed to prevent the said company from making such conditions with respect to the receiving, forwarding, and delivering of any of the said animals, articles, goods, or things, as shall be adjudged by the court or judge, before whom any question relating thereto shall be tried, to be just and reasonable. . . . Provided also that no special contract between such company and any other parties respecting the receiving, forwarding or delivering of any animals, articles, goods, or things as aforesaid, shall be binding upon or affect any such party unless the same be signed by him or by the person delivering such animals, articles, goods, or things respectively for car.. riage, &c.

The Regulation of Railways Act 1868 (31 & 32 Vict. c. 119)

By sect. 16 provides for the securing equality of treatment in respect of tolls in cases" where the company is authorised to build, or buy, or hire, and to use maintain, and work, or to enter into any arrangements for using, maintaining or working steam vessels for the purpose of carrying on a communication between any towns or ports and to take tolls in respect of such steam vessels," &c., and enacts that the provisions of the Railway and Canal Traffic Act, 1854, so far as the same are applicable, shall extend to the steam vessels, and to the traffic carried on thereby."

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The Railway Regulation Amendment Act 1871 (34 & 35 Vict. c. 78) enacts:

Sect. 12.-Where a railway company under a contract for carrying persons, animals, or goods by sea, procure the same to be carried in a vessel not belonging to the railway company, the railway company shall be answerable in damages in respect of .. loss of or damage to "goods" in like manner and to the samo extent as the railway company would be answerable if the vessel had belonged to the railway company, provided that such. . . . loss or damage to such . . goods happens to the goods during the carriage of the same in such vessel, the proof to the contrary to lie upon the railway company.

Bray, for the plaintiff.-The question is whether passengers' luggage, when being conveyed by rail under the usual circumstances, does or not come within sect. 7 of the Railway and Canal Traffic Act of 1854; and it is contended on the part of the plaintiff, that it does. In the case of Zunz v. The South-Eastern Railway Company (20_L. T. Rep. N. S. 873; 38 L. J. 209. Q B.; L. Rep. 4 Q. B. 539), the Court of Queen's Bench indirectly, as it were, so decided. No doubt in the case of Stewart v. The London and North-Western Railway Company (10 L. T. Rep. N. S. 302; 3 H. & C. 135; 23 L. J. 109, Ex.; 10 Jur. N. S. 805), the Court of Exchequer held that the luggage of a passenger of an excursion train was not within the Act; but there a printed condition on the ticket stated that the luggage was at passenger's own risk; and it would appear from the judgments in the case that the decision would have been different in the case of passengers' luggage by an ordinary train. There can be no real dit ference in the company's liability with respect to the amount of luggage which they are bound and that which they agree to carry: (Macrow v. The Great Western Railway Company, 24 L. T. Rep. N. S. 618; L. Rep. 6, Q. B. 612; 40 L. J. 300, Q. B.) Sect. 7 is wide enough to comprise passengers' luggage under the words "articles, goods,

6.

Ex. Div.]

or things," and such luggage is like other "goods' carried by the company of which they are common carriers. The case of Richards v. The London, Brighton, and South Coast Railway Company (7 C. B. 839; 18 L. J. 251), is conclusive for the plaintiff on that point. The proposition contended for is clearly put in Hodges' Law of Railways (5th edit., by Manley Smith), at p. 570; and Richards v. The London, Brighton, and South Coast Railway is cited, with other cases, in support of the propositions there stated. [BRAMWELL, B.-It must be assumed, I think, that a passenger's luggage is in a position similar to goods sent for carriage alone.] Again, secondly, the provisions of sect. 7, and the liabilities of railway companies, have been extended by the 31 & 32 Vict. c. 119, s. 16, and 34 and 35 Vict. c, 78, s. 12, to traffic by steamboats, and, therefore, if luggage is included in the term "goods," it comes within sect. 7 of the Railway and Canal Traffic Act 1854, even when carried on board a steamboat: (Moore v. The Midland Railway Company, Ir. Rep. 8 C. L. 232.) Again, the condition limiting the liability to the value of 61. is unreasonable. He cited also

Aldridge v. The Great Western Railway Company, 15 C. B., N. S., 582; 33 L. J. 161, C. P.; Willis, for the defendants, contra.-The common law liability of the company as common carriers of the luggage is not disputed, but sect. 7 of the Railway and Canals Traffic Act is restricted in its application to ordinary merchandise conveyed as goods apart from passengers. If that is not so, the liability of a railway company can only be limited by obtaining the signature of every individual passenger to a special contract with regard to his luggage, which would be practically impossible. [BRAMWELL, B.-I think this Act has been misconstrued occasionally; the intention of its framers was, I believe, that the company under the first proviso might give a general notice limiting their liability, if only such limitation were just and reasonable, independently of any contract being signed. I think it a mistake to hold (although it has been so held) that such a condition would be void if it were rot signed. The Act plainly means that notice should not limit the company's liability unless the conditions were reasonable; but the framers of it should have added a clause that the companies might make any condition they pleased, reasonable or otherwise, so long as it was signed by the other party. That is my construction of the Act, and it is, I know, that which was intended.] The 7th section, and the words therein, "receiving, forwarding, and delivering," are inapplicable to a passenger's luggage, but strictly applicable, and intended to be so, to "articles, goods, and things sent as ordinary merchandise.

Stewart v. The London and North-Western Railway Company (ubi sup.), cited contra, is a decision directly in favour of the defendants, for there is no distinction, as regards liability for luggage, between an excursion train and an ordinary train Pollock, C.B., in his judgment there, said the court were all of opinion that the case was not within the Act; but it cannot be said that the luggage there was not quite as much "received, forwarded, and delivered," as it was here. [BRAMWELL, B.— I am not over well satisfied with my judgment in that case. Not one of the judges there says directly that passengers' luggage is not within the Act. In The Great Western Railway Company v. Tally (23 L. T. Rep. N. S. 413; L. Rep.

[Ex. Div.

6 C. P. 44; 40 L. J. 9, C. P.) the passenger took charge of his luggage in the carriage with himself, and the court held that the company were not liable. Further, the 31 & 32 Vict. c. 119, and 34 & 35 Vict. 78, do not incorporato sect. 7, but only the first six sections of the Railway and Canal Traffic Act; and the word "traffic" does not occur in sect. 7. It was not intended that railway companies carrying by sea should be put on a different footing from other steamboat companies. Lastly, the contract was made in France, as stated in the declaration. [BRAMWELL, B.The point does not arise, and it must be assumed, there being no allegation to the contrary, that the contract was made in England.]

Bray, in reply.-In Stewart v. The London and North-Western Railway Company (ubi sup.) nothing is said as to passengers' luggage not being within sect. 7. The ground of the decision there was that it was not an ordinary journey at ordinary fares, and that there was a special contract between the company and the travellers.

BRAMWELL, B.-The second questiou raised by Mr. Willis in his argument on behalf of the defendants is whether the Regulation of Railways Act 1868 (31 & 32 Vict. c. 119) does or does not extend to and include the 7th section of the Railway and Canal Traffic Act of 1854 (17 & 18 Vict. c. 31). Mr. Willis contended that the first-mentioned Act of 1868 includes the first six sections, but does not include the 7th section of the lastmentioned Act of 1854. I think, however, that the best and short answer to that is that the 31 & 32 Vict. c. 119, by sect. 16 expressly says that “the provisions of the Railway and Canal Traffic Act 1854, so far as the same are applicable, shall extend to steam vessels and to the traffic carried on thereby." Mr. Willis wants us to read that section as if it had said "some of the provisions" of that Act"minus sect. 7 shall extend, &c.," but that we cannot do. Indeed, it is very obvious that if the Legislature had intended what Mr. Willis suggests, they would have said so; and therefore, unless by necessity, arising from some absurdity and incongruity on the face of it, we are obliged to say otherwise, we must read the section as it stands, as extending to the railway company's steam vessels, and the traffic carried on thereby; and I can see no incongruity or absurdity in the matter at all, nor any reason why sect. 7 should not so extend. There is too, I think, good reason for saying that that view of the case is corroborated by sect. 14 of the Act of 1868 referred to; and therefore, on the short ground that, in the absence of any absolute necessity for so doing, we ought not to limit the operation of the express language of sect. 16, which incorporates sect. 7, we are bound to hold that that section is included in the provisions of the Regulation of Railways Act 1868, and so therefore extends to the present case. That being so, the next question is, whether sect. 7 of this Act of 1854 applies to passengers' luggage. Now the words of it are, Every such company, as aforesaid, shall be liable for the loss of, or for any injury to, any horses, cattle or other animals, or to any articles, goods, or things in the receiving, forwarding, or delivering thereof, occasioned by the neglect or default of such company or its servants," and so forth. These things are goods-passengers' goods, or luggage; they are received by the company, forwarded by the company, and delivered by the company to the pas

66

Ex. Div.]

senger at the termination of his journey. Again Mr. Willis wants us to put in certain words of exception, that is to say," excepting passengers' luggage." The same reasoning, however, applies to this as to the former case. We ought not to put in an exception unless there would be an impossibility or some absurdity or incongruity in construing the section without it, or some inconvenience so great that we might be driven to suppose that the exception was intended by the Legislature. I do not, I confess, see that there is anything of the sort here. Mr. Willis says that it would be a very extraordinary thing if passengers were to be stopped and told by the company that their luggage could not be carried unless they signed a special contract. I do not myself see any insuperable difficulty in that inasmuch as the result would probably be that if it were found to be inconvenient to the travelling public the matter would be very soon looked into and an Act of Parliament probably be passed for the purpose of relieving them from the inconvenience. But if the Act were construed as I think it ought to have been no difficulty at all would arise. I am of opinion, therefore, that we ought not to insert the proposed exception in sect. 7 excluding therefrom passengers' luggage.

I think it is very important that we have ascertained from the arguments and admissions of the learned counsel in this case that the railway company are insurers of the luggage of their passengers. That being so, there is only one matter which I need notice, and that is how to deal with the case of Stewart v. The London and North Western Railway Company (ubi sup.); and here let me observe that in the present case we have to deal with a plea setting up a special contract as to the carriage of these goods, to which there is a replication that such contract was not signed; and therefore that it is not a sufficiently signed contract, under sect. 7. The question in Stewart v. The London and North-Western Railway Company did not arise in that way. It arose upon a plea that the defendants did not contract with the plaintiff as alleged; and it appeared, upon going into the facts, that it was not the ordinary case of a person paying the ordinary fare charged to a passenger for carrying him, which, as it has been properly said, comprehends a remuneration for carrying his luggage as a common carrier; but it was a case of a special excursion train, where the parties made a bargain, of the terms of which the plaintiff might have informed himself if he had thought fit to do so, but which he did not do. That bargain was, that the passenger should be taken upon special terms, one of which was that the company would not be liable for his luggage. I see that it was there said by Pollock, C.B.

66

We are all of opinion that this case is not within the Railway and Canal Traffic Act." And, if I may cite my own judgment, I said: the Railway and Canal Traffic Act does not apply, and no question arises as to the reasonableness of the condition." And further on I said: "There was thus a plain bargain entered into by virtue of which the plaintiff obtained his ticket at about one-fourth of the ordinary fare, and for this accommodation he was content to take the risk of his luggage on himself." And Pigott, B., also said: "This was a special contract, and it was competent for the parties to make it."

I have no wish to cast any doubt upon that case, but there are, it may be, some questionable

[Ex. Div.

expressions in it; for if it was a special contract, it was not a sufficient special contract under the Act because it was not signed. But I find that Mr. (now Mr. Justice) Brett, who argued that case for the plaintiff, never put it upon that ground at all; neither do I see in either of the judgments that any allusion or observation was made with respect to the contract not being within the meaning of the statute by reason of its not being signed. The only way in which, as it seems to me, the judgment in that case can be supported (and, as I said before, I have no wish to cast a doubt upon it) is by saying that the Railway and Canal Traffic Act applies to the ordinary taking of a passenger and his luggage for the ordinary remuneration, and does not apply to the case of a special bargain as to the carriage of the passenger of a different character from that which he would have a right to make by going to the company and tendering his fare and saying, I require you to take me upon such and such terms," in which case if they refused to take him, I rather think that he would have an action against them for such refusal. I think, therefore, that Stewart v. The London and North-Western Railway Company was not within the Railway and Canal Traffic Act; not because it was the case of a passenger and his luggage, but because it was the case of a special bargain between the passenger and the company for a particular journey to and fro in a certain time, and not the ordinary case of a passenger going into a carriage and being conveyed from one station to another as a matter of right.

I think the present case is clear. Stewart's case, for the reasons I have mentioned, does not apply. I do not think, moreover, that any great injustice will be done to railway companies by our present decision. The companies, I have no doubt, will always guard themselves by making a condition that they will not be liable for passengers' luggage beyond the statutory weight unless it is weighed and paid for accordingly. But, as we all know, inauy people carry with them an amount of luggage in excess of the prescribed weight, and few people will ever weigh and pay for it. That would be a reasonable condition, and the consequence of it would be that the companies would be protected. However, be that so or not, I think the present case is clearly within the words of the Act, and that our judgment must be for the plaintiff.

AMPHLETT, B.-I am of the same opinion, and I shall not add anything to what my learned brother Bramwell has said with regard to these statutes of the 31 & 32 Vict. c. 119, or the 34 & 35 Vict. c. 78. I also agree, whatever be the construction of the 7th section of the Railway and Canal Traffic Act, that that section is made applicable by these later Acts to the case of steam packets and their traffic in the same way as to the company's ordinary trains running on their lines.

Then the question comes-and it is a very important one, and I am only surprised that up to this present time there has been no authoritative decision upon it-the question, I say, comes, whether ordinary passengers' luggage is included in the terms "articles, goods, or things," which are mentioned in the 7th section of the Act of 1854. It would be very important, of course, to have the question decided whether or not railway companies are common carriers, and subject to the liabilities of