in them on behalf of the parish, by their assent and entry, Exch. of Pleas,

1841. without any acceptance by them by an instrument under the common seal of the supposed corporation, as might SMITH have been necessary in the case of a proper corporation, ADKINS. according to the rules of the common law: Predyman v. Wodry (a). Under this head, another objection is stated in the special demurrer, which was not insisted upon on the argument, namely, that the names of the then churchwardens and overseers are not mentioned; but the grant would be good, by the name of office, to those individual officers, which would be a sufficient designation ; Com. Dig., Capacity, (B. 4), Grant, (A. 2); though, when they sue or are sued, their individual names must be used, by the 59 Geo. 3.

The only remaining objection necessary to be noticed is, that the express colour is bad; colour is given in the usual mode by the averment of a charter of demise, by which nothing passed. It is contended, that as this is averred to have been after the refusal and neglect of Mary Smith, the person in possession, to deliver up the house, the supposed charter of demise is altogether void, and gives no colour of title. But that objection is unfounded; it does give a colour of title, though it is in reality a bad one, as colour by charter of demise for life without livery always is. The judgment is therefore for the defendants.

Judgment for the defendants.

(a) Cro. Jac. 110.

Erch. of Pleas,




CASE.—The declaration stated, that whereas the deA declaration in case against a com

fendants, before and at the time hereinafter mentioned, mon carrier for to wit, on the 24th November, 1840, were common carriers refusing to carry goods, averred of goods and chattels for hire, from Birmingham, in the that the plaintiff" was ready county of Warwick, to Manchester, in the county of Lanand then offer. caster, and from Manchester aforesaid to Birmingham ed to pay to aforesaid, and thereupon heretofore, to wit, on the said the defendant such sum of 24th November, 1840, the plaintiffs caused to be tendered money as the defendant was

to the defendants, they being such common carriers as legally entitled aforesaid, to wit, at a certain place in Birmingham aforethe receipt, car- said, being the place by them then used in the way of their riage, and conveyance of the said business as common carriers, for the receipt of parcels said parcel:"Held, on special and goods to be by them carried and conveyed as such demurrer, that

common carriers as aforesaid, a certain parcel of goods of the averment was sufficient, the plaintiffs, to wit, a hamper containing divers goods and that it was then of great value, to wit, of the value of £100; and aver an actual

then requested the defendants to receive, and to carry and
tender of mo-
ney for the car- convey the same from Birmingham aforesaid to Manches-

ter aforesaid ; and the defendants then had ample conve-
nience for receiving and carrying and conveying the same
according to the said requirement of the plaintiffs in that

and the plaintiffs were then ready and willing,
and then offered to pay to the defendants, such sum of
money as the defendants were legally entitled to receive for
the receipt and carriage and conveyance of the said parcel,
and all other charges whatsoever which the defendants
were then authorized or in anywise entitled to make or
receive for the receipt, carriage, and conveyance of the said
parcel from Birmingham aforesaid to Manchester afore-
said, to wit, the sum of £2; and the defendants then had
notice of the premises : yet the defendants, not regarding
their duty as such common carriers as aforesaid, but con-

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triving and wrongfully and unjustly intending to injure the Exch. of Pleas,

1841. plaintiffs, though they did receive as aforesaid, and carry and convey, the goods of divers other persons on that occa PICKFORD sion from Birmingham aforesaid to Manchester aforesaid, did not nor would, at the said time when they were so requested as aforesaid, or at any time afterwards, receive the said parcel, or carry or convey the same from Birmingham aforesaid to Manchester aforesaid, but wholly neglected and refused so to do, though they might and could, and ought as such carriers to have received and carried and conveyed the same as aforesaid ; whereby the plaintiffs were then forced and obliged to carry and convey the said parcel from Birmingham aforesaid to Manchester aforesaid, with great labour, cost, and inconvenience, and were put to great expense, &c., in and about the carriage and conveyance of the said parcel, &c., and were and are otherwise greatly annoyed, injured, inconvenienced, and damaged.

Special demurrer, assigning for cause, that the declaration did not aver a tender to the defendants of the money which they were entitled to receive for the carriage of the goods.—Joinder in demurrer.

The case was argued on the 11th of May, by

Cowling, in support of the demurrer.—The question in this case is, whether, in a declaration in case against common carriers for refusing to convey the plaintiffs' goods, it is necessary to aver a tender of the sum of money which the defendants are legally entitled to charge for the carriage ? It is submitted that it is; and that the averment in this declaration, that “the plaintiffs were ready and willing, and offered to pay,” is insufficient. The case would be different, if the declaration disclosed any special circumstances which amounted to a dispensation with the tender, or shewed that it was impossible to make one. The general rule is, that no

Erch. of Pleas, man is bound to deal or traffic with another; but in the 1841.

case of carriers and innkeepers the law is different. It PICKFORD

compels them, from motives of policy, to deal with all per. GRAND sons who may come to them; but they are not bound to JUNCTION RAILWAY Co.

deal on credit, but are allowed by law to exact the price of their labour, or of the provisions they supply, as a condition precedent. [Parke, B.-Can it be necessary to tender the amount of the carriage, as a condition precedent to the performance of the carrier's contract ? By his contract, he is to convey the goods safely to their journey's end; and if they are lost on the road, he would not be entitled to any thing for the carriage.] The authorities are in favour of the principle contended for. In Pinchon's case (a), it is said, that “a victualler or hostler is not compellable to deliver victuals till he be paid for them in hand," citing 10 H. 7, 8. a., and 39 H. 6, 19. a. So, in Hawkins's Pleas of the Crown, Book I., c. 32, s. 2, it is said, “if one who keeps a common inn refuse either to receive a traveller as a guest in his house, or to find him victuals or lodgings, upon his tendering him a reasonable price for the same, he is not only liable to render damages for the injury in an action on the case at the suit of the party grieved, but may also be indicted and fined at the suit of the King.” In Jackson v. Rogers (6), which was an action on the case against a common carrier for refusing to carry goods, Jefferies, C. J., held, “that the action is maintainable, as well as it is against an innkeeper for refusing a guest, or a smith on the road, who refuses to shoe my horse, being tendered satisfaction for the same.” In Story on Bailments, c. 8, s. 508, it is stated to be one of the duties of a common carrier to receive and carry all goods offered for transportation, upon receiving a suitable hire. This is the result of his public employment as a carrier; and, by the custom of the realm, if he will not carry goods for a reasonable compensation,

(a) 9 Rep. 87 (0)
(6) 2 Show. 327. See also 1 Wms. Saund. 312, n. 2.




upon a tender of it, and a refusal of the goods, he will be Exch. of Pleas,

1841. liable to an action, unless there is reasonable ground for the refusal.” With respect to the lien which a carrier has on the goods intrusted to him, he is in no better situation GRAND than an ordinary tradesman; he has only a particular, and RAILWAY Co. not a general lien. The value of the goods may not be an adequate compensation, and he may know the bailor to be in insolvent circumstances. In Rushforth v. Hadfield (a), it was held that a carrier has no general lien, but only for the carriage of the particular goods. [Parke, B.-How is a party to tender the sum for the carriage, when he does not know the amount?] He must tender a reasonable sum.

Martin, in support of the declaration.—The averment, that the plaintiffs were ready and willing and offered to pay such sum as the defendants were legally entitled to receive, is sufficient, without averring an actual tender. A person who delivers goods to a carrier cannot be expected to know the precise amount of the carriage; and if he offers to pay what the carrier is entitled to charge, he does all that the law requires of him. The authority quoted for the position in Story on Bailments is Bacon's Abr., Carriers (B.); but there the word "offered” is made use of, and it is evident that the word “tender" is not used in its strict sense, either in the notes to Wil. liams's Saunders, or in Hawkins, but as synonymous with "offer.” It is clear from the context, in all these authorities, that a strict legal tender was not contemplated. The words tender and offer are used in several instances as meaning the same thing. A strictly legal tender is only necessary, and indeed can only be made, where there is a pre-existing debt, the amount of which may be ascertained with precision by the party tendering it. No precedent of a declaration against a carrier for refusing to carry goods is to be found in the books; but in Chitty on Pleading (6),

(a) 7 East, 224 ; 3 Smith, 221. (6) 6th Edit. vol. 2, p. 468.

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