A selection of cases on carriers and other bailment and quasi-bailment services

Front matter

ii mi hi

Cornell University Library KF1091.A7B361920

A selection of cases on carriers and otii

Section 1. Freight and other Charges . 593

Sections. Tickets 640

TABLE OF CASES.

kina^ . 473 C

Adams Exp. Co. v. Harris Allenwilde T. Corp. v. Vacuum

Oil Co.

American Exp. Co. v. Perki:

' V. Smith J.*,

Anchor Line v. Dater "^ Anon., 8 E. 2, 275

22 Lib. Ass. 41

1 Harv.' Ms. 3

-— Bro. Abr. Det. 27

Fitz. Nat. Brev. 94

RoL Abr. Act. hut Case 24

R. R.

Bartlett ». Western U. T. Co.

Belger r>. Dinsmore

Bigelow !). Heaton

Bird V. Bird

Birney v. Wheaton

Blossfam V. Dodd

Boyce V. Anderson

Bremner v. Williams

Brian v. Bennett

Brinlcbiu'n, Prior of, v. Whelpington

Brooke v. Grand Trunk Ry.

Buokland v. Adams Exp. Co.

Bulkley v. Naumkeag S. C. Co.

Bullard v. American Exp. Co.

Chicago Lumber Co.

Bussey v. Miss. V. T. Co.

Page 579

Page

Campion v. Canadian Pac. Ry. 192

265* 'Cau V. Texas & P. Ry. 391 A

361 Chapman v. Great Western Ry. 607

2 consin 487

9 Raine 250

10 Citizens' Bank u. Nantucket S.

608 Clark v. Burns 78

Ooggs V. Bernard 17

566 Colorado S.&C.C.D.Ry.w. Petit 537

42 Colt V. M'Mechen 405

Conroy v. Chicago, S. P. M. & O.

Cork Distilleries Co. a. Great S.

380 Craker v. Chicago & N. W. Ry. 210

623 Creamer w. West End St. Ry. 534

358 Dale v. Hall 27

414 Davis v. Garrett 181

392 Davison u. City Banlc 605

114 Dickinson y. West End St. Rjc. 132

Dodge V. Boston & B. S. S. Co. 529

1 Duchemin v. Boston El. Ry. 124

668 Dudley w. Chicago, M.&S. P. Ry. 270

535 East S. L. C. Ry. o. Wabash, S.

Edmunds v. Merchants' D. T. Co. 294

602 Edwards v. Sherratt 469

73 w. White Line Transit Co. 453

TABLE

591 115

'VI

Farnsworth v. Groot 175

Frank v. Ingalls 651

Galveston, H. & S. A. Ry. v.

Wallace Gastenhofer v. Clair (Geismer v. Lake Shore & M. S.

Ry.

George N. Pierce Co. v. Wells

Fargo & Co.

Georgia So. Ry. v. Marchman Gibbon v. Paynton Gilbert v. Hoffman Gill V. Middleton

Goold V. Chapin Grace v. Adams Grady v. Schweinlpr Graff V. Bloomer Grand Trunk Ry. v. Stevens Graves v. L. S. & M. S. R. R.

Green- Wheeler Shoe Co. v. Chic.

Hart V. Chicago & N. W. Ry.

Hayes v. Turner

Hill V. Humphreys

Hogner v. Boston El. Ry.

Horslow's Case

Hudson V. Kansas Pac. Ry.

Hulett V. Hulett

Hunt V. Haskell

Idaho, The

V. Treat

Ingalls V. Bills Iniilceeper's Case

Jackson v. Anderson Jacobs V. West End S. Ry.

398 102 467 232

39 419 272 207 564 355

60 278 609 388

428 103

300 624

445 121 124 153 3

256 241

OASES.

Kilduff V. Boston El. Ry. 133

King V. Lenox 113

Klauber ;;. Amer. Exp. Co. 471

Koons V. W. U. T. Co. 471

Kronprinzessin Cecelie, The 189

Krunisky v. Loeser 47

Li

Il(

Ladue v. GrifBths 566

Leavy v. Kinsella 45

Lemery v. Great N. Ry. 145

Leonard v. New York, A. & B. E.

M. T. Co.

R. R.

Lewis ;;. New York S. C. Co.

LiLley v. Doubleday

Lincoln v. Gay

,Lister v. Lancashire & Y. Ry.

547 ijoveland ». Burke

McCulloch V. McDonald

McKeon v. Chicago, M. & S. P Ry.

McKibbin v. Wisconsin C. Ry.

Co.

Malone v. S. L. S. F. Ry.

Manhattan Oil Co. v. Camden & A. R. R. & T. Co.

Marshall v. York, N. & B. Ry.

Marshall's Case

Mayhew v. Eames

Merchant's D. T. Co. v. Kahn

Merritt v. Earle

V. Old Colony & N. Ry.

Metcalf V. Hess

M. M. Chase, The

R. R. 580

Mosley v. Fossett 10

Moulton V. St. Paul, M. & M. Ry. 382

233 203 160

581 489

TABLE OF CASES.

Yll

Page

Muschamp v. Lancashire & S. J.

Ry. 642 Mynard v. Syracuse, B. & N. Y.

Northern Belle The 168

Northern Pacific Ry. v. Solum 185 Norway Plains Co. w. Boston &

Notara v. Henderson 259

Nugent V. Smith 415

Ohio & M. Ry. v. Yohe 455

Ormond v. Hayes 526

Ouimit V. Henshaw 511

Patterson v. Old Dominion S. S.

Bridge Co. 478

a. Parry 652

Peterson o. Chicago, R. I. & P.

Phillips V. flarle 470

■ • V. Southern Ry. 139

Pierce v. Milwaukee & S. P. Ry. 331

V. Schenck 40

Hazen 440

■Pounder v. North Eastern Ry. 215

Powell V. Myers 280

Pratt V. Railway 575

Jreston v. Prather 55

_ rimrose v. Western U. T. Co. 373

Railroad v. Lockwood 339

Rawson ;;. Holland 572

Richardson v. Goddard 274

Roberts v. Koehler 625

Robins v. Gray Robinson v. Baker

Sandys v. Florence

Schumacher d. Chicago & N. W.

Ry.

""Shawnee M. Co. v. P. T. C. Co.

Shepherd's Case Shiells V. Blackbrnn Shingleiw v. Canton Singer v. Merchants' D. T. Co.

Skinner v. Atchison, T. & S. F.

R. R.

Southcote's Case

Standish v. Narragansett S. S. Co.

Steamboat Lynx v. King

Stiles V. Davis

Swift V. Pacific M. S. S. Co.

Thomas v. Northern Pac. Exp. Co.

R. R.

Titania, The Titchburne v. White Toledo, W. & W. Ry. v. Brooks Tulane Hotel Co. v. Holohan

Walker v. York & N. M. Ry.

R. R.

Wehmann ti. Minneapohs, S. P. &

S. S. M. Ry.

Wilson V. Brett

V. Grand Trimk Ry.

Woodhfe's Case Woods V. Devin Wooster v. Tarr

290 324

177 513 466 134 44

449 545 617

336 105 119

362 202 594 662

37 197 128

10 199 604

CASES ON THE LAW OF CARRIERS.

HISTOEICAL INTRODUCTION.

PRIOR OF BRINKBURN v. WILLIAM DE WHELPINGTON.

[Brinkburn Chartulary, 105.]

WiLLELMUS [de Whelpington] suramonitus fuit ad respondendum Priori de Brinkebiirne de placito quod reddat ei tres cartas, quas ei injuste detinet. Et unde queritur quod cum praedictus Prior tradidisset eidem Willelmo tres cartas . . . apud Brinkeburne custodiendas et eidem Priori liberandas cum ab ipso fuerit requisitus, praedictus Willelmus praedictas tres cartas dicto Priori reddere contradixit, Jicet saepius super hoc fuerit per ipsum Priorem requisitus, et adliuc reddere contradicit, unde dicit quod deterioratus est et ad dampnum habet ad valentiam viginti marcarum. Et inde prodncit sectam.

Et praedictus Prior per Willelmum de Denum, attornatum suum, hoc idem cognoscit, et praedictas duas cartas sic confractas hie in Curia admisit, et bene concedit illas eodem modo quo praedictus W. asserit fuisse per latrones ablatas.

Ideo praedictus Willelmus quietus, etc.

Y. B. 8 Ed. II., 275 [1315]. William le Bonion, Clerk, brings his writ of Detinue of Chattels, against one Maude, and counted that he detained from him wrongfully, etc., the said, etc., that is to say, rings, a silver vessel, and other jewels.

MigTiam. Sir, we tell you that this same W. bailed us to guard a locked chest without the key, and he carried off the key himself, and

2. PlilOR OF BKINKBUEN V. WILLIAM DE WHELPINGTON.

whether other things were stolen, as he saj's, we do not know ; and we tell you that thieves came at night and broke into the chamber of this same Maude, and carried off the chest with the chattels and broke it open, and carried off our goods and chattels with it, read}*, etc.

Russell. That he bailed to you the jewels aforesaid outside the chest, and desired you to return them at his will, ready, etc. Et. alii quod non}

Y. B. 12 & 13 Ed. III. 244 [1339]. Detinue of chattels to the value of lOOZ. against an Abbot by a man and his wife, on a bailment, made by the father of the wife when she was under age, of chattels to be delivered to his daughter, when she was of full age, at her will ; and they counted that he delivered pots, linen, cloths, and 20i. in a bag sealed up, etc.

Pole. He demands money, which naturally sounds in an action of debt or account ; judgment of the count.

Stouford. We did not count of a loan which sounds in debt, nor of' a receipt of money for profit, which would give an action of account, butof money delivered in keeping under seal, etc., which could not be changed ; and if j'our house were burnt, that would be an answer.

ScHARDELOWE, J. Answer over.

Pole. We do not detain in manner as he has counted ; ready to defend by our law.

Stouford. We have counted of the bailment made by another; wherefore, do you intend this to be your answer?

Y. B. 22 Lib. Assis. pi. 41 [1348]. I. de B. complains by his writ that G-. de F. on a certain day and year at B. upon Humber had undertaken to carrj- his mare taken on his boat over Humber water safe and sound ; whereas the said G. overloaded his boat with other horses, by reason of which overloading the mare perished, to his wrong and damage, etc.

Hichmond. Judgment of the writ ; for he does not allege any tort in us ; he only proves that he would have an action by a writ by way of covenant, or [not?] by way of trespass: wherefore, etc.

Bankwell, J. It seems that you committed a trespass when j'ou overloaded the boat, whereby his mare perished, etc. ; therefore answer.

Richmond. , Not guilty."

Y. B. 29 Lib. Ass. 163, pi. 28 [1355]. Suit was brought in the Exchequer by the King's debtor, etc., for a cup which was bailed bj' him to the defendant, etc. And the defendant said, that the plaintiff bailed

1 Certain obvious errors in this cnse have been corrected from the version given in Fitzherberf's Abrirlgment, Detinue, pi. 59. That version ends as follows : "Russell. Not carried n way by thieves, ready, etc. Et alii e contra. And to this issue the party was driven, etc." — Ed.

2 See 41 Ed. III. 3, pi. 8. — Ed.

THE INNKEEPERS CASE. 3

the cup to- him in pledge for certain money, etc., and he put it with his own goods, etc., which were stolen from him. To which the plaintiff was driven to answer : who said, that he tendered the money before the theft, and the defendant refused it, judgment, etc. And he tendered averment that he did not tender before taking ; and the other was driven by award to aver the tender before the theft, etc. For W. Thoepe, B., said, that if one bails me his goods to lieep, and I put them with mine and they are stolen, I shall not be charged, etc. Quod nota.

Catesby in Y. B. 2 K. HI. 14, pi. 39 [1478]. By this action he asks nothing but an account, which clearly disaffirms property-, etc. ; for may be that in a writ of account the plaintiff shall recover nothing ; for if the thing delivered, was of the value of 2QI., if the defendant alleges upon his account that he adventured by land and was percase robbed, or on sea and lost, if it be found so, the plaintiff shall recover nothing ; for he demands nothing but an account, and more he shall not have, be it more or less.

THE INNKEEPER'S CASE.

Common Pleas, 1410.

[Y.B. n Hen. IV. ib, pi 18.]

A MAN brought a writ of Trespass against an innkeeper, and declared that by the Common Law each innkeeper is obliged safely to keep the things which are within his inn ; and declared that he was lodged with him at a certain time, and that his horse was stolen while within the inn.

Skrene. Protesting that we are not a common innkeeper, we say that the plaintiff came to us towards night and prayed to be received into our house ; and we told him that we could not be bound to him, because early the next morning we had to be before the sheriff, to extend certain lands by the King's writ. And thereupon he prayed us to give him a kc}- of his chamber, and another of the stable where he should put his horse ; and we gave him those same keys, and went our way that same night. And we pray judgment if he may maintain this action against us, etc.

Tildesley. Protesting that we do not admit that he gave us sUch notice of his going away as he has spoken of until after we were lodged with him, and that meanwhile our horse had been stolen from within his inn, we pray judgment, and ask for our damages. M sic ad judicium.

Hankford, J. , to Skrene. You have not alleged that you were summoned or distrained to come before the sheriff, nor in fact have you alleged that you went to the sheriff and gave attendance upon him by authority of the law ; but you have said only that you gave notice to the plaintiff that you were going : and if you were not there, he may

* HOESLOW S CASE.

have & traverse of it. And though a common innkeeper make promise by his own head to speak with a sheriff or other man, if he suffers one to lodge with' him he answers for his goods ; and he is bound to have deputies and servants under him, for well keeping the inn during his absence.

Skrdne. When 1 alleged such notice given to him as to what I had to do before the sheriff, it is to be taken as true in fact, since it is not traversed by the other party.

Hill, J. The bailment of the kej's in this case is nothing to the purpose in discharging the innkeeper, as was adjudged long before his day {quodfuit concessum per Justiciarios) ; but when the defendant gave notice to him that he could not attend to him causa ut supra, and thereupon the plaintiff took lodging at his peril, he discharged the innkeeper, and took the charge upon himself; wherefore, etc.

Thiening, C. J. The plaintiff in this case in his declaration has not declared that it was a common inn. Nothing is alleged of record in proof of it, but in the declaration he has declared the common custom as to common inns, and then in the conclusion he has alleged nothing, but that he was lodged with him, so the matter in itself is not sufficient to maintain the action ; for though a man who is not a common innkeeper lodge me in his inn, he shall not answer for my goods.

Tremayne. When I declared that I was lodged in his inn, it is intended that he is a common innkeeper.

Thirning, C. J. An action cannot be maintained by argument nor by intendment, but by sufBeient matter included and declared. Wherefore it is better for you that j-our writ be abated for defect of your declaration, and that you pursue a better action.

Tremayne. He has accepted our declaration as good, wherefore, etc.

Hankford, J. No matter if he has accepted anything, the court does not allow it.

Then the record was read, and found as Thirning had said, etc.

Hankford, J. {ex assensu omnium sociorum). You take nothing by your writ, etc., but you are in mercy, etc.

horslows case.

Common Pleas, 1444.

Writ of trespass on the case was brought against W. Horslow, laborer, because the Common Law of the land is that the innkeepers veho keep common inns ought to safeguard the goods of those who are lodged in their inns, so that no damage should happen to them bj' persons unknown ; and the plaintiff alleged how certain of his goods (and alleged

HORSLOW S CASE. O

■what) were taken out of his possession in the defendant's house by persons unknown.

Prisot. Judgment of the writ ; for the writ is, Gum secundum legem & cons, jfiegm, etc., in which case it appears that the matter aforesaid lies in custom, which shall not be intended the Common Law, etd; t

Newton, C. J. What is custom of the land but the law of the land? Therefore answer this.

Markam. In Kent perhaps the writ does not rehearse their customs, sc. cum secundum. Legem, & consuetudinem, etc., because they have divers customs which do not extend except within said county, but this is a custom and a law throughout all the realm.

Prisot. Yet judgment on the writ ; for the custom is rehearsed as of common inns, and by the writ and count it is not alleged that the defendant's house in which the goods were taken is a common inn ; wherefore may be it is not a common inn ; and if one be lodged with me, or in the house of a husbandman who is not a common innkeeper, though his goods are taken out of his possession, still he lacks an action.

Newton, C. J. The exception is good, and will be corrected at another day.

Markam.. We will waive this writ, and take another.

Prown. This writ is good, and the practice no other : and cited two or three precedents.

Prisot. All those writs are Pone, etc., such a one, innkeeper, and can be understood no otherwise except that his house is a common inn ; but in the case at bar the defendant is not named innkeeper, but W. Horslow, laborer.

Prown. The addition should not be given in this action, because process of outlawry does not lie in said action.

Newton, C. J. A laborer may hold a common inn, and e contra an innkeeper may have other houses to lodge with his license and good will.

Prisot. If action be brought against the Warden of the Fleet or the Marshal in the King's Bench because of their office, they should be named in their writ bythe name of their office ; so it seems in the case at bar, the defendant should be named innkeeper.

Newton, C. J. In the case you have put the law is as you say ; but I may have a common inn and yet such a writ brought against me by my own name is good. And in the case at bar if the house was not a common inn you may suggest it and take advantage of it by way of plea.

AscuE, J. It seems for another reason that the writ is abatable ; for the writ does not mention that the goods were carried into the inn and lodged in it, and carried out of said inn ; but the writ is, C. shillings, etc., of the plaintiff in hospicio of the defendant hospitati ceperunt cfe asportaoerunt, and this word hospitati refers to the person of the plaintiff and not to the hundred shillings ; for then it would be hospitantes vel hospitatos ; and it may be by the writ that the plaintiff might lodge in the house of the defendant and that the goods were in the house of another person and carried away ; wherefore it seems that the

6 THE marshal's CASE.

writ should be, ibidem inventos cepit Sasportavit. And for this reason they were adjourned. And at another daj' the writ was held good, etc.

Prisot. You ought not to have an action, for we ourselves delivered to the plaintiff a chamber and a key to It to have and hold irj his care to safeguard his goods ; and we say that the plaintiff brought with him certain persons unknown into his chamber, who took the said goods. Judgment if action.

Markam. That plea amounts to no more than that the goods were not taken in your default.

Newton, C. J. The plea is good, if he give names in certain to those who took the goods ; for the .persons are unknown to him, and for such a taking the law excuses him.

Wherefore Prisot alleged their names, sc. Tho. T. and W.

Markam. Said T. & W., whom we carried with us into the chamber did not carrj' awa}' the goods.

Newton, C. J. That is a negative pregnant ; one, that they did not carry away the goods ; the other, that thej- did not come into his chamber at his request; but the plea is good, that the said W. and T. did not carr}' away said goods ; or else you may denj- that the said W. and T. came into the said chamber at your request.

Prisot. To oust ambiguities we say that the goods were not carried away in our default.

FcLTHORPE, J. That is no issue.

Brown. Such an issue has been taken and entered before this time.

And afterwards Prisot pleaded the first bar, as above.

Markam. We did not carry said W. and T. with us into the chamber, read}-. Et alii e contra.

Markam. Still this is perhaps a jeofail. Suppose I with my good will suffer a stranger to lodge with me in the inn, and in my chamber, which stranger robs me, and I do not know him, shall not the innkeeper be charged with it?

Newton, C. J., and All the Court. No, sir, when he was not lodged in your chamber by the innkeeper, but by your own sufferance ; but if he was lodged with you by the innkeeper, then the innkeeper shall be charged. And suppose that your own servant who is with you in the inn robs jou, shall the innkeeper be charged ? Certainly not. Therefore the issue is good.

THE MARSHAL'S CASE.

Common Pleas, 1455. [Y.B. ZSHen. VL \,pl.Z.]

Debt was brought against the marshal of the King's Bench. And the i)laintifr counts on the Statute, and that one T. who was condemned to the plaintiff in a certain sum in an Assize of Novel Disseizin sued a

THE marshal's CASK 7

writ of Error before the King ; and then the judgment was affirmed, and the said T. was put in guard to tlie Marshal for the sum ; and that he let him go at large, to his wrong and damage.

Choke. No action lies ; for he says that a great multitude of the King's enemies on such a day and 3-ear came to Southwark and they then brolce open the prison of our Lord the King, and took the prisoners then tlierein out of the prison, to wit the said T. and others, and carried them away against the will of the Marshal ; without this, that he let him go at large aliter vel aliquo alio modo.

Billing and Laicon. To this plea pleaded in manner, etc.

Choice, If enemies from France or other enemies of the King were here, the Marshal would be discharged; as* if the)' had burned a house of a tenant for life, he should be discharged of waste ; or otherwise if the house were burned by a sudden tempest, then he would be discharged ; so here.

Danbt, J. In your case of the King's enemies' and of the sudden tempest it is right ; for then there was no remedy against any one ; but it is otherwise where subjects of the King do it ; for there you may have action against them.

Choke. Sir, the Captain is dead, and all the others are unknown.

Prisot, C. J. If they were subjects of the King, they could not be called enemies of the King, but traitors ; for enemies are those who are out of his allegiance ; but if they were alien enemies it would be a good plea without any doubt. But if there were twelve or twenty subjects of the King, and unknown, and one night they broke open the prison and took them out, etc., in that ease the Marshal shall be charged for his negligent guard ; so here. But if it were by a sudden accident with fire, and the prison were burned, and they escaped, perhaps it is otherwise.

Choke. If a stranger comes to my nouse, and by his folly burns it, so that other houses of my neighbor are burned, I shall not be charged with burning my neighbor's house. And, sir, if a subject of the King joins with enemies of the King like that, and then they come here and do such a thing, it shall be taken as a thing done by the King's enemy.

Prisot, C. J. In your case he shall not be taken prisoner here, and [allowed] to make ransom as an enemy may ; but he shall be taken as traitor to the King.

Choke. Then we say that there were 4,000 Scots and other enemies of the King with the other traitors, etc.

Danbt, J. Tlien you ought to allege the matter more specially, and some of their names. Et adjournatur.

Broke's Abridgment, Detinue, 27 [1469]. Account. Jenney. If I bail goods to you and you are robbed of them, that shall excuse you. Danby, C. J. If he receives them to keep as his own goods, then it is a good excuse ; and otherwise not.

0 THE SHEPHERD S CASE.

THE SHEPHERD'S CASE.

King's Bench, 1487. [Y.B.2Hen. VII. 11, pi. 9i

The case was such. A man had a hundred lambs to keep, and negligently through his default they were destroyed by his sufferance.

Head. It seems that the action does not lie ; for action on the Case does not lie for a nonfeasance, for the party shall have a writ of Covenant for it. For if one has cloths to keep and the3' are motheaten or rotted, no action on the Case lies, but action of Detinue.

Wood. It seems to me. that the action well lies ; for suppose one takes upon himself to carrj- glass or pots, and negligently breaks them,

1 shall have action on my Case, etc.

Keble said that nonfeasance shall not give rise to action on the Case ; for before the Statute of Laborers if a servant who was hired would not do service to his master no action lay for his nonfeasance, etc.

And it was argued, that if an\' act be done by the party, then action will lie well enough. As if I bail a chest with obligations, and he breaks into it, or bail a horse to ride ten leagues and he rides twent3', action on the case lies ; or in this case if the partj' had driven the lambs into the water action on the case would lie.

TowNSEND, J. When the party undertook to keep the lambs, and afterwards allowed them to be destroj-ed by his default, since he had taken them and executed his bargain, and had them in his custodj', and then did not attend to them, action lies. For here is his act, sc. his agreement with the undertaking, and this afterwards is broken on his part, and this shall give rise to the action. And suppose a horse be bailed, to a man to keep, and afterwards he does not give him sustenance, whereby he dies, action on the case lies. Or if a carrier takes my goods to carr3', and afterwards he loses or breaks them, action lies to make him answer for it, because he has not executed his bargain, and has taken upon him to do the thing. But if a covenant were made with me to keep my horse or to carry my goods, and it was not done, now action of Covenant lies, and no other action ; for in those cases he never executed his promise.

Y. B. 10 Hen. VII. 26, pi. 3 [1495]. Keble {arguendo). I bail deeds and evidences to a man to guard generall3\ Now if his own goods and the evidences are stolen, he shall be excused towards the part}', as I understand, for this keeping is chargeable to .him to all intents as reason may expound, as I shall keep my own goods, etc. . . .

FiNEDX, J. To the contrary, and denied the case of bailment of goods, and said that the bailee should be charged as he understood, though his own goods were stolen.

Fisher. To the same intent ; and said as an innkeeper has the keeping of the goods ; he shall be charged notwithstanding they are stolen, and he has no remedy over ; so here.

ANONYMOUS. 9-

Doctor and Student, c. 38 [1518]. It is commonly holden in the laws of England, if a common carrier go by the ways that be dangerous for robbing, or drive by night, or in other inconvenient time, and! be robbed ; or if he overcharge a horse whereby he falleth into the water, or otherwise, so that the stuff is hurt or impaired ; that he shall stand charged for his misdemeanor : and if he would percase refuse to carry it, unless promise were made unto him that he shall not be charged for no misdemeanor that should be in him, the promise were void, for it were against reason and against good manners, and so it isin all other cases like.-^

FiTZHERBERT, Natura Brevium, 94 d [1534]. If a smith prick my horse with a nail, etc., I shall have my Action on the Case against him, without any warranty by the smith to do it well. . . . For it is the duty of every artificer to exercise his art rightly and trul^' as he ought.

Dall. 8 [1653], Note bj' Browne, J., and Portman, J. As clear law ; if a common carrier takes a pack of stuff from a man to carry it to D. and while in a common inn the pack is taken and stolen, the owner for this shall have an action against the innkeeper for the stuff and' the carrier shall not ; for they are not the goods of the carrier, nor shall he be charged with them inasmuch as he was by law compellable tO' carry them ; and it is not like where one takes goods to carry generally', for if he be robbed, it shall be charged to the carrier for his general taking, to which he was not compellable, and so he shall have action over in respect of his liability. And 2 H. IV. the master shall have action for his goods robbed from his servant in an inn, and although there was not a direct writ for the master in the register in this case, still by the statute the clerks agree to make a writ for him ; and if it pass the: Chancery it is well enough. Hales, J., ace.