ADJOURNED SITTINGS IN LONDON. 1819. TH KNIGHT V. MARTIN. Saturday, to produce a lease and a nonsuit on the trial of the cause, the designs the lease fendant as without the attorney on second action brought, and another notice HE plaintiff in this action had been nonsuited After a notice on the former trial on account of the absence of a material witness, see ante, p. 26. It now appeared that since the last trial the defendant had assigned to a third person all his interest in the premises, and had delivered the original lease to privity of his the assignee. The person who appeared as at- record. A torney on record for the defendant was not privy is afterwards to the assignment. Previously to the present trial the attorney for the plaintiff served upon the fendant's attorney a second notice to produce the upon the atoriginal lease; but at the time of the service defendant's attorney informed the person who served the notice that the lease had been assigned without his privity under the direction of the defendant himself; and that he did not know to whom it was assigned. The plaintiff's attorney was acquainted with the place of the defendant's residence. de to produce the lease is served the torney, who informs the notice tha the lease had been assigned, the notice that and that the assignment was made without his privity. The plaintiff being acquainted with the place of the defendant's residence: Held, The original lease not being produced, Lawes, that it was in cumbent upon him to have enquired of the defendant, in whose possession the lease was, in order to render secondary evidence of its contents admissible. 1819. KNIGHT v. MARTIN. Serjt., for the plaintiff, proposed to offer secondary evidence of it: but Copley, Serjt., contrà, contended, that the plaintiff was not in a condition to prove the lease in that manner. He should have made further enquiries respecting it, and have ascertained to whom it had been assigned, which he might easily have done by calling upon the defendant himself. DALLAS, C. J.-The general principle is, that where a party has been served with notice to produce an instrument then in his possession, he cannot part with the instrument before trial, so as to get rid of the effect of the notice. Here the first cause was at an end by the nonsuit; and if, on the trial of the present action, it was necessary that the original lease should be produced, it was incumbent on the plaintiff to have served the defendant in a regular and proper manner with a notice, calling upon him to produce the lease, proof of which alone would have rendered secondary evidence of its contents admissible. But in a case circumstanced as this is, notice to the attorney cannot be sufficient, since the lease was not only not in his possession, but had been assigned after the last trial; and the person who served the notice was informed, that the attorney for the defendant was not privy to the assignment, but that it was prepared by some other person under the direction of the defendant himself. The plaintiff, therefore, ought not to have rested contented with what he had done; but he should have prosecuted his enquiries farther, and have endeavoured to ascertain from the defendant in whose possession the lease Not having done so, I think that secondary evidence is not admissible. was. 1819. KNIGHT v. MARTIN. Plaintiff nonsuited. At the sittings after Easter term the cause was again tried, and the plaintiff obtained a verdict. Lawes, Serjt., and Curwood, for the plaintiff. Copley, Serjt., and Mackenzie, for the defendant. THOROGOOD v. MARSH and SWANN. Saturday, HIS was an action against the defendants, as A notice by TH delivered to them for the purpose of being carried On Saturday the 8th of March, 1818, the package in question, which consisted of stationery of the weight of 480lbs., was delivered to the receiving porter at the Bull Inn, Bishopsgate-street, from whence the defendants' waggon started. The waggon left London on Thursdays only. In the interval between the Saturday on which the package was left, and the following Thursday, the premises belonging to the Bull Inn were burnt down, and the package was destroyed. The package they will not be answerable for any goods above the va lue of 51. unless entered as such and paid for according which from their ly, applies to bulk may be supposed to specified exceed the value. 1819. THOROGOOD v. MARSH. was directed to the plaintiff at Downham, and was wrapped up in brown paper, but there was nothing on the outside which indicated the value or quality of its contents. The defence was rested upon the effect of a notice upon fac similes, of which it appeared the charges for the carriage of parcels directed to the plaintiff had for several years been made out, and which had regularly been delivered to him. This notice intimated that "the proprietors would not be accountable for any plate, watches, jewels, writings, lace, or any article of more than five pounds' value, unless entered as such, and paid for accordingly." Here the package had not been entered as being above the value of five pounds, nor had any thing been paid for it; and the defendants, therefore, were not accountable for the loss of it. Vaughan, Serjt., for the plaintiff, contended, that the notice was unavailing. It could only apply to packages, the appearance of which rendered it equivocal whether they were of the value of five pounds. The general liability of the carrier is restrained, by this notice, merely to the loss of goods of the same denomination with those expressly mentioned therein, and which are contained in a small compass. In the case of Beck v. Evans, 16 East. 244., an intimation was thrown out by the Court of King's Bench, that the magnitude of the package would countervail the effect of the notice, although the decision in that case proceeded upon the ground of gross negligence in the carrier. DALLAS, C. J.-This is the case of property, entrusted to the defendants to be carried to a certain place, being lost by fire, which loss having arisen from accident, neither party is to blame. The package was left at an inn for the defendants, and it was safely and properly left there. The general law is clear. A common carrier is in every case an insurer against fire. What he receives is not only a compensation for the carriage, but it likewise creates an obligation in him to indemnify against fire. It is also equally clear that a carrier may limit his responsibility; and, whether or not the defendants have availed themselves of that right in such a manner as in this instance to protect themselves from liability is the question raised in this cause. Generally speaking, there can be no doubt that a carrier is liable for a loss of this description, unless a restriction be imposed upon his responsibility; and that, the defendants contend, was in this case done. The notice out of which the defendants say the restriction arises intimates, that "the proprietors (of the waggon) will not be accountable for any plate, &c., or any article of more than five pounds' value, unless entered as such, and paid for accordingly." The evidence satisfactorily brings home to the plaintiff a knowledge of the notice, since copies of it have been traced into his hands for several years past; and the notice, by its legal operation, imposes a restriction upon the ordinary liability of the defendants. The first objection urged against the efficacy of this notice is, that the latter words, " or any article," must be confined to articles of the same description, with reference to bulk, as those which precede. 1819. THOROGOOD v. MARSH. |