London to Tonningen. The goods, (as appeared by an admission on the part of the plaintiff,) were expressed in the bills of lading, to be shipped by order and on account of Hesse and Co. of Hamburgh. The ship arrived in the river Eyder, but was prevented from proceeding to Tonningen by the commander of one of his Majesty's frigates, and ordered to return home. After her return, the captain made an affidavit, that he believed the cargo to be Danish property; whereupon, the goods were unloaded and delivered over to the admiralty marshal, and libelled in the admiralty court: the plaintiff afterwards recovered them by a proceeding in that court. The action was brought to recover the expenses incurred by the suit in the admiralty. On the part of the defendant it was insisted, that the goods being shipped by order, and on account, of Hesse and Co. the property vested in them immediately on their being shipped on board the Mercurius. Dawes v. Peck, and Dutton v. Solomonson, were cited. It was also urged, that a recovery by the present plaintiff could not protect the defendant from an action at the suit of Hesse and Co. On the part of the plaintiff it was contended, that there was a distinction between the carrying goods from one part of England to another, and the transporting them beyond sea. That after a delivery of goods to a carrier, to carry them from one part of England to another, the vendor had no property in the goods, but only a right of stopping in transitu: and it was admitted, that if the goods were directed to be sent by a carrier, without specifying the carrier, the delivery to the carrier was a delivery to the vendee; but urged that, in the case of goods sent abroad, if the goods arrived safe, they were to be paid for; aliter, if they do not arrive. Lord Lilenborough C. J. "They are shipped by order, and on account, of Hesse and Co. I can recognize no property but that recognized by the bill of lading." Plaintiff nonsuited. It is observable, that in the case of Davis v. James, 5 Burr. 2680, it was holden, that the consignor might maintain the action; but the ground of that decision was, that the consignor had made himself responsible to the carrier for the price of the carriage. In Moore v. Wilson, 1 T. R. 659, where the action was bought by the consignor, and the plaintiff having averred in his declaration, that the hire was to be paid by him, proof that the hire was to be paid by the consignee was holden not to be a variance, on the ground that whatever might be the contract, between the vendor and the vendee, the agreement for the carriage was between the carrier and the vendor, the latter of whom was by law liable, V. Of the Declaration. FORMERLY the declaration in actions against common carriers stated their employment as common carriers, their liability by the custom of the realm, a delivery to, and acceptance by the defendants of the goods to be carried, for a reasonable hire or reward, concluding with the loss or damage to the goods; but the modern practice is not to declare in this form, but in assumpsit (15), and not to state either the employment of the defendants as common carriers, or the custom of the realm (16) as to their liability. This g Herne's Plead. 76. Vid. Ent. 37, 38. (15) It may be observed, however, that where the circumstances of the case require a count in trover to be added, the ancient form of a declaration is adhered to, or (what is more usual) a concise form, analogous to the ancient form, and founded on a breach of duty, is adopted. It is worthy of remark, that Denison J. said, in Dale v. Hall, B. R. H. 24 G. 2. MSS. that where the action was founded on the custom, it was ex contractu, and that trover and an action on the custom could not be joined; and in Boson v. Sandford and another, Salk. 440. the court held, that an action, charging the defendants with a breach of their duty as carriers, was not an action ex delicto, but ex quasi contractu, and on this ground they decided, that the action being brought against two of four partowners of a ship could not be sustained, although the defendants had not pleaded this matter in abatement, but had relied on the general issue, not guilty. This case, however, as to the taking advantage of the omission of some of the partners on the general issue, has been overruled in Rice v. Shute, 5 Burr. 2611, and in subsequent cases (see ante, p. 110, n. 64); and as to the form of the action, Boson v. Sandford was overruled in Dickon v. Clifton, 2 Wils. 319, which was recognized by Lord Ellenborough C. J. delivering the judgment of the court in Govett v. Raduidge, 3 East's R. 62. (16) "The custom of the realm is the law of the realm†, and consequently it need not be set forth in the declaration." Per Denison J. in Dale v. Hall, MSS. and per Lord Hardwicke C. J. in Boucher v. Lawson, Ca. temp. Hard. 199. See also Hargrave's Co. Litt. p. 89 a. n. 7. "It seems not only unnecessary, but even improper, to recite the custom in the declaration, because it tend to confound the distinction between special customs, which ought to be pleaded, and the general custom of the realm, of which the courts are bound to take notice without pleading." See the declaration, 2 Show. 478. & Carth. 158. form of declaration has prevailed since the decision of Dale v. Hall, M. T. 1750, in which it was settled, that it did not make any difference, whether the plaintiff declared on the custom, or, more generally, in assumpsit; for, by stating that the defendant carried for hire, it would appear that the defendant was a common carrier, and then the law would raise the promise from the nature of the contract. But although the plaintiff is not bound to allege the custom, yet he must produce sufficient evidence to bring his case within the custom". The advantage resulting to the plaintiff from declaring in assumpsit is, that he may join the common counts with the special counts in assumpsit, if he has other causes of action to which they are applicable. The inconvenience which arises from declaring in assumpsit is, that it lets in a plea of abatement for want of joining all the parties, and it excludes the right to join a count in trover. If the plaintiff is desirous of avoiding this inconvenience, he may either pursue the ancient method of declaring with a recital of the custom, or he may adopt a more general form (omitting the recital of the custom) and allege his gravamen as consisting in a breach of duty arising out of an employment for hire, and may consider that breach of duty as a tortious negligence. Thus declaring in tort, the plaintiff will be permitted to add a count in trover, the defendant will be ousted of his plea in abatement, on the ground of not joining all the parties; and further, if the action is brought against several defendants, and some are found guilty, and others acquitted, the plaintiff will, notwithstanding, be entitled to judgment against those who have been found guilty. The reader, however, should be apprised, that the doctrine laid down in Govett v. Radnidge is opposed by two decisions in the court of Common Pleas, viz. first, by the case of Powell v. Layton, 2 Bos. & Pul. N. R. 365, in which it was determined, that a declaration against a carrier by water, stating "that he had received goods to carry for freight, but that he had not delivered them according to his duty," was founded in contract; and that to a declaration so framed the defendant might plead that he was only liable jointly with his partners, and that his partners were not sued; and, secondly, by the case of Max v. Roberts and eight others': there the gravamen was alleged as consisting h Per Lord Hardwicke C. J. in Boucher v. Lawson, H. 9 G. 2. B. R. Ca. temp. Hard. 199. i Mitchell v. Tarbutt,5 T. R. 649. k Govett v. Radnidge, B. R. 3 East's R. 62. 1 2 N.R. 454. in a breach of duty as ship-owners arising out of an employment for freight. The plaintiff could not prove all the defendants to be owners; the court were of opinion, that, as the action was founded in contract, it was incumbent on the plaintiff to prove all the defendants to be owners, and having failed in that, he could not recover against those who were proved to be owners. A writ of error was brought, which, having been twice argued in the court of King's Bench, was adjourned to the Exchequer Chamber, as it was supposed that a decision in this case might settle and put at rest the question upon which the contrary judgments had been given; but after argument, the twelve judges were unanimously of opinion, that both the counts of the declaration were so defective in several material respects, (perfectly collateral to the question upon which the determination of the judges was sought) that no judgment could be given for the plaintiff upon either of them". It will be proper to remark here, that trover will not lie against a common carrier for merely losing goods entrusted to his care, without any actual wrong (17). The proper form of action is the action on the case before mentioned. Although goods are spoiled by the default of the master of the ship, yet the owners are liable in respect of the freight, if charged on the custom of the realm, or as usually carrying for hire, or upon an express undertaking; but not otherwise.. In this case the declaration (if in assumpsit) ought to be against all the owners; but if one or more are But m Max v. Roberts, 12 East, 89. o Boson v. Sandford, Salk. 440. 3 Lev. (17) But if the carrier has the goods in his custody at the time when he refuses to deliver them, this will be evidence of a conversion. Salk. 655. So trover will lie against a carrier who delivers goods to a wrong person through mistake. Per Kenyon C. J. Youl v. Harbottle, Peake's N. P. C. 49. The owner of goods on board a vessel directed the captain not to land them on the wharf, against which the vessel was moored, which the captain promised not to do, but afterwards delivered them to the wharfinger, conceiving that the wharfinger had a lien on the goods for wharfage fees; it was holden, that the owner might maintain trover against the captain, who could not prove that any wharfage duty was due. Syeds v. Hay, 4 T. R. 260. not named as defendants, advantage can be taken of the omission by plea in abatement only. The same rule holds with respect to all common carriers who are partners, or who make a joint contract. A ship was chartered to the commissioners of the navy as an armed vessel', who put on board a commander in the navy and a king's pilot, the master and crew being appointed and paid by the owners. In consequence of the improper execution of an order given by the commander, the chartered ship ran foul of another ship. It was holden, that the owners of the chartered ship were liable for the injury which the other ship sustained; for the chartered ship, notwithstanding it had an officer on board, was, with regard to third persons, to be considered as the ship of the owners. A notice by a carrier limiting his responsibility to a certain sum', unless goods above that value are entered and paid for accordingly, amounts only to a limitation of damages, after a right to them has accrued by a breach of the contract, and is matter proper to be given in evidence to the jury in reduction of damages, but forms no part or qualification of the original contract for carriage, and, consequently, is not necessary to be shewn to the court in the first instance on the face of the record. Hence, in a case of this kind, a declaration in the usual form is sufficient, VI. Of Payment of Money into Court. In an action of assumpsit against a carrier", to recover the loss sustained upon goods which had been put on board the defendant's barge, and which had been spoiled in consequence of the cargo being sunk, the defendant was not allowed to pay the invoice price into court, the rule being, that money cannot be paid into court in cases of uncertain damages. In assumpsit against a common carrier for losing a trunk belonging to the plaintiff, of the value of 50%, the defendant moved for leave to pay 207. into court, upon an affida |