such as were improperly or insufficiently packed; that, the bundles in question having been left upon the platform in consequence of the refusal of the plaintiff to allow them to be placed in the carriage with him, the company's servants were justified in taking them to the lost luggage office; and that the charge of 6d. per package demanded for their restoration was not unreasonable.

The learned judge was of opinion that a duty was imposed upon the company by s. 131 to carry luggage, and that there had been no absolute refusal on the part of the company's servants to carry the packages in question; but only a refusal to accede to the plaintiff's demand that they should be labelled and placed in the luggage-van and carried at the company's responsibility; and that the parcels in question were not packed so as to be reasonably fit to be carried in the luggage-van. He thereupon directed a nonsuit,-reserving leave to the plaintiff to move to enter a verdict for the value of the parcels, if the court could infer from the facts that the plaintiff was entitled to recover,-the defendants to have leave, if necessary, to add a plea that they were ready and willing to perform the contract, but that the plaintiff altogether refused to permit them to do so.

*691]

*The learned judge appended to his report the following state

ment:

"Four packages were offered,-on the 10th, 12th, and 17th of December, 1856, and 7th of February, 1857. The first was a shawl, open at each end, with two pots of cocoa under the strap, and a book-slide of ornamental inlaid Tunbridge-ware inside. On this parcel the contest was begun; and that which passed as to this parcel the jury must be taken to have found as to the three others. The plaintiff required it to be labelled and taken charge of as luggage, with the responsibility attaching in respect to luggage so received. The defendants refused to label it, and so to take charge of it; but offered to place it in any carriage in which the plaintiff might be or wish it to be without a label, and without the responsibility attaching in respect of luggage so received. The plaintiff was going to Tunbridge Wells. At Tunbridge the carriage is changed: the labelled luggage is transferred by the porters of the company, who are responsible, not only for safe carriage but for correct delivery at the labelled destination: the packages not labelled, carried with the passenger, are to be transferred, either by himself or by porters acting under his direction, and on his responsibility as to the destination. The plaintiff refused to point out any carriage in which the package should be placed under his charge,-insisting that it should be labelled and taken by the company. This they refused to do. The parcel was therefore left on the platform, and was taken to the unclaimed parcel office, where it was offered to the plaintiff on payment of 6d. This being refused, the action was brought.

"The second parcel was a shawl wrapped round some articles of clothing and books, made into a square package, with two straps placed transversely, and addressed to the plaintiff.

*The third was a parcel of clothing packed in a wrapper of *692] blue calico, merely a wrapper: this was carried and delivered

as luggage.(a)

(a) There is some inaccuracy in this statement. This parcel was not one of those in question.

"The fourth was the same calico parcel completely covered with a shawl, and strapped crossways, as before described. This was refused in the same manner and on the same grounds, and with the same offer, as the first.

"The first objection by the company to the counts on the duty to label and carry, was, that there was no duty to label created by statute or common law. This I held to be clear. The question turns on the statute 6 & 7 W. 4, c. lxxv., which enacts that it shall be lawful for the passenger to carry so much in size and weight of wearing apparel. This the defendants had been willing and offered to permit the plaintiff to do.

"The second objection was on the count (the 11th) on a contract to label luggage, founded on regulations No. 9 and 10. I said I thought they created no contract to label, but created a responsibility for delivery at destination if a label were put on; that the regulation declaring that the company would not be responsible for luggage not labelled, did not exempt them from responsibility in respect of luggage not labelled, if it was damaged by any breach of duty on their part; and that the responsibility intended by regulation No. 10 was, the responsibility of delivering at the labelled destination alone. I further thought that luggage must be reasonably secured and fitted for transit without damage in the carriage appropriated to luggage: that the company were not bound to receive as luggage every article of wearing apparel which a passenger might offer, unless it was reasonably secured and fitted for transit without damage; that the regulation for rejecting shawls as luggage was lawful, and on this principle I thought that, when [*693

the plaintiff tendered a shawl uncovered and unprotected, he did not tender luggage which the company were bound to receive and label and carry to its destination at their risk for safe and correct delivery: and that the fact that the shawl contained some articles of clothing made no difference, if the shawl was the outside of the package. I further thought that the package was left by the plaintiff on the platform, and so became an unclaimed parcel, and so was lawfully warehoused by the company, and so was lawfully detained till a reasonable compensation for warehousing was paid: and I held 6d. to be a reasonable charge therefor."

Bovill, Q. C., in pursuance of the leave reserved, in Easter Term last,. obtained a rule nisi to enter a verdict for the plaintiff for 20., if upon the facts the court should think it ought to be so entered.

Edwin James, Q. C., and Woollett, now showed cause.-It was perfectly competent to the company to make reasonable regulations as to the terms and mode of conveying packages like those in question, and to reject and refuse to carry or to label things insecurely packed or not properly addressed. [WILLIAMS, J.-Do you contend that the company can cast upon the passenger the burthen of taking personal charge. of his luggage? They were not bound to put it in any particular part of the train; and they were always willing to carry these packages provided the plaintiff would suffer them to be placed in the carriage in which he himself was,-which was a safe and a reasonable place. [COCKBURN, C. J.-I do not collect from the evidence that the plaintiff refused to allow the packages to be placed in the carriage with him. All he objected to was,-and I think the objection a VOL. IV.-27

[*694

reasonable one, that they should be placed under his personal charge, and be carried at his risk.] The circumstance of their not being labelled, and of their being placed in the carriage with the passenger, will not relieve the company from any responsibility which the law casts upon them: Richards v. The London, Brighton, and South Coast Railway Company, 7 C. B. 839 (E. C. L. R. vol. 62); Butcher v. The London and South Western Railway Company, 16 C. B. 13 (E. C. L. R. vol. 81). These packages appeared upon the face of them to be anything but "luggage.' There is a material distinction between "luggage," properly so called, and the lighter articles which a traveller usually carries in his hand. The definition of luggage in Richardson's Dictionary, is, "heavy, cumbrous baggage or package." [COCKBURN, C. J.-Surely you cannot insist that the company mean to confine themselves to Richardson's definition. Suppose a gentleman is going to spend a night at the house of a friend in the country,-would not the contents of a carpet-bag such as are ordinarily taken on such occasions be luggage?] They might come within the definition of "articles of clothing" in s. 131 of the 6 & 7 W. 4, c. lxxv. [COCKBURN, C. J.-The whole contention here seems to have been, not as to where the articles should be placed, but at whose risk they were to be carried. The plaintiff seems to have been under an impression that if he took them in the carriage with him the company would evade all responsibility in respect of them. And the porter and station-master evidently thought so too.] In Robinson v. Dunmore, 2 Bos. & P. 416, Chambre, J., says: "It has been determined, that, if a man travel in a stage-coach and take his portmanteau with him, though he has his eye upon the portmanteau, yet the carrier is not absolved *695] from his responsibility, but will be liable *if the portmanteau be lost. In this case, the plaintiff, for greater caution, sends his servant with the goods, who pays for the watching them because he apprehends danger of their being stolen. So, the man who travels in a stage-coach has some care of his own property, since it is more for his interest that the property should not be lost, than that he should have an action against the carrier." It is clear, therefore, that the company would avoid no responsibility by the packages going in the carriage with the passenger. [COCKBURN, C. J.-They say they will not be responsible for luggage unless marked with their label, and they capriciously refuse to label things of this sort. Is the passenger, with notice that such a regulation exists, bound to submit to have his luggage placed in the carriage with him, with notice from the company that they will not be responsible for its safe conveyance?] The company had a right to carry the articles as and where they pleased: it was not a question of responsibility. [BYLES, J.-The report of the learned judge is conclusive on that point. He says, speaking of one package; and the same applies to all," The plaintiff required it to be labelled and taken charge of as luggage, with the responsibility attaching in respect to luggage so received. The defendants refused to label it, and so to take charge of it; but offered to place it in any carriage in which the plaintiff might be or wish it to be, without a label, and without the responsibility attaching in respect of luggage so received."] That is a fallacious view of the learned judge. [COCKBURN, C. J.-It is the view of the facts upon which the nonsuit proceeds.] The court are to draw inferences for themselves from the facts. [COCKBURN, C. J.-The company's servants

want to place a package under the seat of the carriage with the passenger. The latter says "I will not have it placed here, because that will cast upon *me the responsibility which ought by law to rest [*696 upon the company." It was evidently a mere struggle, not as to the place of carriage, but as to the liability of the carrier for its safety. What right had the company, under the circumstances, to treat this as lost luggage?] If they were justified in refusing to carry it, and it was in consequence of the plaintiff's declining to receive it in the carriage with him that it was taken to the lost luggage office, they clearly were entitled to treat it as lost or abandoned. The regulations in this respect were perfectly fair and reasonable. They could not leave the goods on the platform, and the porter could not rudely thrust them upon the passenger against his will. [COCKBURN, C. J.-The company knew very well to whom the articles belonged: and it appears from the report that all the packages were directed but one.]

Bovill, Q. C., Garth, and H. Matthews, in support of the rule.-By the 131st section of the 6 & 7 W. 4, c. lxxv., the company are bound to carry a certain amount of articles of clothing for every passenger free of charge. They make regulations, which perhaps they are warranted in doing, by one of which they require that all luggage shall be labelled, or they will not be responsible for any loss or detention; and then they make a private regulation by which they prohibit their servants from putting their labels upon certain articles, such as rugs, coats, umbrellas, sticks, caps, or small paper parcels, bundles of rugs, coats, and wrappers strapped together,-which are not to be placed in the luggage-van, but must be taken charge of by the passengers themselves or sent as booked parcels. They clearly are not justified in so limiting the responsibility which the law casts upon them. There is no plea here that the articles were not properly packed. [COCKBURN, C. J.-If the defendants were justified in refusing to carry these packages, they would be [*697 justified in taking them to the lost luggage office: and, if they were justified in taking them there, there was no conversion; and the point arises upon not guilty.] The company clearly were bound to receive and to carry these packages. To make out a plea such as that which it was proposed at the trial to add, the company must show that they were ready and willing and offered to carry the articles upon the terms mentioned in the act of parliament. This they clearly never did; for, the only offer to carry, was, upon the terms that the passenger should take the risk upon himself. This clearly was the only conten

tion between them.

The court intimating that they thought the company were liable in respect of the two last parcels, which exclusively consisted of articles of clothing, but that they entertained some doubt as to the others, which besides clothing contained articles not coming within the description of personal luggage, Bovill consented to confine the verdict to 10l., the value of the last two.

COCKBURN, C. J.-I am of opinion that the rule must be made absolute to set aside the nonsuit and to enter a verdict for the plaintiff in respect of the last two parcels which were the subject of the action, and which contained articles of clothing only. The facts, as applicable to these, were as follows:-The plaintiff, having sufficiently packed or tied together the articles (consisting of wearing apparel), and being himself

a passenger by the train, desired that the packages might be labelled and placed with the rest of the passengers' luggage. The railway porter to whom this request was addressed, after consultation with the station-master, declined to comply with it. It appears that the 131st *698] section of the company's act of incorporation (6 & 7 *W. 4, c. lxxv.) compels the company to carry a certain quantity of articles of clothing for each passenger free of charge. The act also enables the company to make rules and regulations in respect of the conveyance of passengers and their luggage, one of which (the 10th) was as follows,-"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." The plaintiff, being aware of this regulation, and intending to compel the company to assume the responsibility of the safe carriage of the packages in question, calls upon the company's servant to label them. This he refuses to do. It is impossible to avoid seeing that the contention between the parties here was, whether the company, by refusing to label the packages, could divest themselves of their commonlaw liability as carriers for the safe conveyance of the articles. They appear to have sought to relieve themselves of such liability by requiring all luggage to be labelled, and then giving a direction for the guidance of their servants, that, "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 in the luggage-van: the passengers must take charge of such articles themselves, or send them as booked parcels." Acting upon that direction, the porter and station-master decline to label the packages in question and to place them in the luggage-van; telling the plaintiff, that, *699] if they go at all, they must go in the same carriage with the plaintiff himself. To this the plaintiff objects, on the ground that the company were thereby endeavouring to relieve themselves from their ordinary liability as common carriers. This being the struggle between the parties, the porter threatens to take the package to the lost luggage office, unless the plaintiff will consent to have it placed in the carriage with him. The plaintiff says: "Put the package where you please: but you shall not impose upon me the responsibility of taking charge of it myself." The things are thereupon left upon the platform, and afterwards taken by the porter to the lost luggage office,-treating them as property of which the owner was unknown. I am of opinion that the porter was not justified in so doing, and that the company are responsible for his acts. The plaintiff did nothing to prevent the company's servants from putting the packages into the carriage in which he was, or in any other part of the train. All he said, was, that, if the packages were placed in the carriage with him, the company were not to consider that as a recognition on his part that he had taken upon himself any obligation with respect to them which would not attach to him if they were placed elsewhere. I think there was nothing done to relieve the