(meaning the defendants) will not be responsible for the loss of any *article of luggage that is not marked with their label, and pro

perly addressed:" Averment, that, in making the said contract [*681 with the defendants on each of the said occasions, the plaintiff was a first-class passenger, and received from the defendants, and paid for, a first-class ticket accordingly; that, on each of the said occasions, the plaintiff had certain luggage with him, being luggage of the description mentioned in the company's act of parliament, which he contracted and required to be carried in the same train with him, subject to the said terms and regulations, and which, being under 100 lbs. in weight, the defendants were bound to convey for the plaintiff, as such first-class passenger as aforesaid, free of charge, and which luggage was also properly addressed, in accordance with the said regulations; and that, on each of the said occasions, after taking his said ticket, the plaintiff claimed his said luggage on the defendants' platform, and requested the defendants that it might be marked with their label or labels, in accordance with the said regulations; yet that the defendants, disregarding their said contract, and their duty, refused to carry and convey the said luggage for and with the plaintiff, subject to and in accordance with the said regulations, and also refused to mark the same with their label or labels, or to place the same in the said train, in accordance with the said regulations, whereby the plaintiff was put to great expense and inconvenience, and was forced and obliged to go and be carried as such passenger as aforesaid from Southwark aforesaid to Tunbridge Wells aforesaid without his said luggage, and was afterwards obliged to pay divers sums of money to the defendants, in order to recover and obtain possession of his said luggage; and the plaintiff had in other respects, by reason of the said default of the defendants, been greatly damaged, &c.

*The defendants pleaded,-first, to the first four counts, not guilty.

[*682 Secondly, to the first four counts, that the defendants were not common carriers as in those counts respectively alleged.

Thirdly, to the first four counts, that the plaintiff did not make the payments in those counts respectively alleged.

Fourthly, to the fifth, sixth, seventh, and eighth counts, that the defendants did not agree as in those counts alleged.

Fifthly, to the fifth, sixth, seventh, and eighth counts, the defendants denied the said alleged breaches of the said agreements, and said they were not guilty of the same.

Sixthly, to the ninth count, not guilty.

Seventhly, to the tenth count, that the defendants did not nor do detain the said goods as alleged.

Eighthly, to the ninth and tenth counts, that the said goods and chattels were not the goods or chattels of the plaintiff.

Ninthly, to the tenth count, that, before and at the times of the said detention of the said goods and chattels, the defendants were possessed of a certain railway and lands, and because on the occasion in that count mentioned the said goods were wrongfully in and upon the said railway and lands, encumbering the same and doing damage there to the defendants, the defendants on the said occasion seized and took in and upon the said railway and lands the said goods and chattels as a

distress for the damage so by them done and doing, and impounded the same, and kept and detained and still kept and detained the same so impounded as such distress, in a proper and convenient place; which were the grievances in the said count complained of.

*683] Tenthly, to the tenth count, the defendants further *said that the said goods and chattels were four bundles of goods, and each of the said bundles was, at different times before the alleged grievance, deposited and left by the plaintiff with the defendants, to be kept, taken care of, and warehoused by the defendants for the plaintiff for reward to the defendants, and upon the terms that the defendants should have a lien thereon for such reward; and that the defendants received each of the said bundles upon those terms, and did accordingly keep, take care of, and warehouse the same; and that, before the alleged grievances, such reward became and was, and still remained, due to the defendants from the plaintiff in respect of each of the said bundles, which reward remained due; and, the defendants being entitled to a lien upon each of the said bundles respectively for the reward due in respect thereof, they the defendants thereupon refused to deliver up and had not delivered them up to the plaintiff,-which were the alleged grievances in the said tenth count complained of.

Eleventhly, to the tenth count, that the defendants did what was complained of by the leave of the plaintiff.

Twelfthly, to the last count, that the defendants did not contract as alleged.

Thirteenthly, to the last count, that the said luggage was not luggage of the description mentioned in the company's acts of parliament.

Fourteenthly, to the last count, that the contracts in that count mentioned were also made subject to the following terms, that is to say, that such of the plaintiff's luggage as consisted of small articles, such as rugs, coats, umbrellas, sticks, caps, or small paper parcels, or bundles of rugs, coats, or wrappers, strapped together, should not be labelled or placed in the luggage-van of the train by which the plaintiff was *684] *conveyed, and that the plaintiff should take charge of such articles, or send the same as booked parcels; and that the said luggage which the defendants refused to carry and convey and to mark with their label or labels as aforesaid, on each of the said occasions, was and consisted of small articles of the description aforesaid, wherefore the defendants refused to mark the same with their label or labels or place the same in the luggage-van of the said train, which the plaintiff requested the defendants to do; and the defendants were willing that the plaintiff should take charge of the said luggage in the said train, and that the defendants should so carry and convey the same with him on and to the end of the said journey, or that the same should be sent as booked parcels, in accordance with the said terms and regulations; but the plaintiff refused to take charge thereof, or to so send them, and insisted on the same being labelled and placed in the luggagevan of the said train, and would not otherwise suffer or permit the defendants to carry or convey the same for or with the plaintiff; wherefore the defendants did on the said occasions refuse to carry and convey the same.

Fifteenthly, as to the last count, the defendants further said that the said contracts in that count mentioned were also made subject to the

following terms, that is to say, that such of the plaintiff's luggage as consisted of small articles, such as rugs, coats, umbrellas, sticks, caps, or small paper parcels, or bundles of rugs, coats, or wrappers strapped together, should not be labelled or placed in the luggage-van of the train by which the plaintiff was conveyed; and that the said luggage which the defendants refused to carry and convey and to mark with their label or labels as aforesaid, on each of the said occasions, was and consisted of small articles of the description mentioned; wherefore the defendants refused to mark the same with *their label or labels, or place

the same in the luggage-van of the said train, which the plaintiff [*685

requested the defendants to do; and that the defendants were ready and willing to carry and convey the same with the plaintiff on and to the end of the said journeys in one of the carriages by the train respectively by which the plaintiff with his luggage was to be so carried and conveyed as aforesaid, otherwise than the luggage-van, but the plaintiff refused to suffer or permit the defendants so to carry and convey the same, and insisted on the same being labelled and placed in the luggage-van of the said train; wherefore the defendants did on the said occasions refuse to carry and convey the same.

The plaintiff joined issue on the first, second, third, fourth, fifth, sixth, seventh, eighth, twelfth, and thirteenth pleas, and took issue on the ninth, tenth, eleventh, fourteenth, and fifteenth pleas. And, as to the ninth plea, he said, that, on each of the said occasions when the defendants seized and took the said goods and chattels as in that plea mentioned, the same were then respectively in and upon the said railway and lands, encumbering the same, and doing damage there as in that plea alleged, by the leave and license of the defendants, and in pursuance of contracts before then respectively entered into between the plaintiff and the defendants. Issue thereon.

The cause was tried before Erle, J., at the last Spring Assizes for Surrey. The facts as they appeared at the trial (the plaintiff himself being the only witness examined) were as follows:-The plaintiff is a barrister, having a residence at Tunbridge Wells, to which place the South Eastern Railway Company have a branch line from their main line at Tunbridge. On the respective days mentioned in the declaration, viz. the 10th, 12th, and 17th of December, 1856, and 7th of February, 1857, the plaintiff was a first-class passenger *by the rail[*686 way from London to Tunbridge Wells. At the several times in question, the following, amongst others, were the regulations of the company for the carriage of passengers and their luggage upon the railway,-which regulations were duly published in their time-tables, and of which the plaintiff had notice:

"9. Passengers' luggage. First-class passengers are allowed 100 lbs. of luggage, second-class 60 lbs., and third-class 56 lbs., free of charge; such luggage being of the description mentioned in the company's act of parliament. Children who pay half-price are allowed half the foregoing quantity. Overweight will be charged one farthing per lb. for any distance under forty miles, and one halfpenny per lb. for any distance exceeding forty miles. Commercial travellers passing to various parts of the line during the same day will be charged overweight at the above rates for the farthest point of destination only, if declared at the

commencement of the day's journey, and the luggage-ticket given up at the termination.

"10. Luggage to be claimed and labelled. Passengers are required, after taking their tickets, to claim their luggage on the platform, and to see it marked with the company's labels; and no luggage will be placed in the train until it is so marked. The company will not be responsible for the loss or detention of any article of luggage that is not marked with their label and properly addressed; nor for luggage of any other description than that mentioned in their acts of parliament, except a declaration of its nature and value be made at the time, and it be booked and paid for accordingly. All passengers' luggage is conveyed subject to the conditions upon which goods are carried by the company.

"11. All unclaimed property found on the company's premises, or in their carriages, is deposited in the Lost Property Office at the London Bridge terminus. If *there be an address on the articles found, *687] notice will be sent to that address, that the property is in the company's possession; and, if there be no address thereon, the packages will be opened at the expiration of one week, with a view to ascertain the address of the owner, when notice will be forwarded to him: and the property will in either case be restored to the owner, on payment of 6d. for each article, or forwarded, if desired, at the usual parcels rate. An additional charge of 6d. per week is made, after the expiration of the first week, on each article left for a longer period."

The facts detailed by the plaintiff, as to the first of the parcels, were as follows:-The plaintiff, who resided at Tunbridge Wells, was in the habit of going backwards and forwards between that place and London by the South Eastern Railway. On the 10th of December, 1856, he took a first-class ticket at London Bridge station by the 8.30 train for Tunbridge Wells. He had with him a small portmanteau, a cloak, a small morocco bag, a stick, an umbrella, and a bundle containing a book. slide of ornamental Tunbridge-ware and a silk coat, wrapped up in a plaid shawl fastened with a strap, but open at each end, and having two pots of cocoa placed under the strap. This bundle was not addressed. The whole would weigh about 50 lbs. The plaintiff asked a porter to label the portmanteau and the bundle. The porter labelled the former, but declined to label the latter, saying (after consulting the stationmaster) that it was contrary to his instructions to put a label upon such a package, alluding to an unpublished regulation issued by the company on the 1st of August, 1853, for the guidance of their servants, and which was as follows: "In future, no small articles, such as rugs, coats, umbrellas, sticks, caps, or small paper parcels, nor bundles of rugs, coats, and wrappers strapped together, are to be labelled or placed *688] *in the luggage-van. The passengers must take charge of such articles themselves, or send them as booked parcels." The porter then proposed to put the bundle into the carriage with the plaintiff, saying that the company could not be responsible for such a package, and that, if the plaintiff would not take it, he (the porter) must carry it to the lost luggage office. The plaintiff said he knew nothing about their regulations, that he would not have the bundle in the carriage with him, and that the company must take charge of it. The bundle was accordingly left upon the platform, and subsequently taken to the lost luggage office, where the defendant saw and demanded it on the follow

ing day, but the company's servants refused to restore it to him except upon payment of 6d.; and, as the plaintiff declined to pay the sum demanded, the bundle was retained.

On the 12th of December, the plaintiff went again by the same train with a bundle consisting of a shawl, wrapped round some articles of clothing, a number of the Law Journal, a volume of sermons, and some papers, fastened with two straps placed transversely, and sealed, and addressed to himself.

On the 17th of December, the plaintiff went again by the same train, with a bundle consisting of articles of wearing apparel packed in a wrapper, sealed, and addressed to himself.

On the 7th of February, 1857, the plaintiff went again by the same train, with a bundle consisting of wearing apparel with a shawl wrapped round, and cross-strapped.

Each of the parcels was worth 57.; and on each of the last three occasions the same altercation took place, and with the like result.

[*689

The plaintiff avowed that his intention in making up these parcels was to try his right to have them carried by the company; and that, in consequence of the *change of carriages at Tunbridge, he had on former occasions been put to considerable inconvenience in having to take charge of his own luggage on the platform there. On the part of the plaintiff it was insisted, that the company were bound, as well by their common-law duty as carriers as by the 131st section of their act of incorporation, 6 & 7 W. 4, c. lxxv., (a) to carry passengers' luggage at their own risk, and could not relieve themselves from that responsibility by insisting upon the passenger taking any portion of his luggage in the carriage with him; that they could not make a regulation requiring packages to be labelled, and then by refusing to label exempt themselves from liability; and that they *had no right to insist upon the payment of a fee for the restoration of the articles.

[*690

For the defendants, it was submitted, that though a duty might be imposed upon the company, by the 131st section of their act, to carry articles of the description, weight, and dimensions therein mentioned, they had a right to place them in any part of the train they pleased; that the 151st section gave them power to make regulations as to the conveyance of luggage; that no duty was imposed upon them either by the statute or by the common law to label any parcels, however packed, which might be brought to them; that they had a right to reject

(a) Which enacts, "that, without extra charge, it shall be lawful for every passenger travelling upon or along the said railway to take with him his articles of clothing, not exceeding 40 lbs. in weight, and four cubic feet in dimensions; and the said company shall in no case be in any way liable or responsible for the safe carriage or custody of, or for any loss of or injury to, any articles, matters, or things whatsoever carried upon or along the said railway with or accompanying the person of or belonging to any passenger, or delivered for the purpose of being carried other than and except such passenger's articles of clothing not exceeding the weight and dimensions aforesaid: Provided always that nothing herein contained shall in any case extend or be deemed or construed to extend to charge or make liable the said company further or in any other case than where according to the laws of this realm for the time being stage-coach proprietors and common carriers would be liable; nor shall anything herein contained extend or be deemed or construed to extend in any degree to deprive the said company of any protection or privilege which either now or at any time hereafter common carriers or stage-coach proprietors have or may have, but the said company shall from time to time and at all times have and be entitled to the benefit of every such protection and privilege."