1889

to be what they appeared to be without objection, as I think they did, they are, I think, responsible for their loss. The Carriers Act, R.S.C. ch. 82 (formerly 37 Vict., ch. 2, sec. d.), has now to be conRICHELIEU Sidered.

DIXON

บ.

& ONTARIO

NAV. Co.

By sec. 2, sub-sec. 3, the defendants as carriers by water are liable for the loss of or damage to goods entrusted to them for conveyance.

Sub-section 4 provided they shall not be liable to any extent whatever to make good any loss or damage happening without their actual fault or privity, or the fault or neglect of their agents, servants or employees:

(a) To any goods on board such vessel or delivered for conveyance therein by reason of fire or the dangers of navigation;

(b) Arising (that must mean or arising) from any defect in or from the nature of the goods themselves or from armed robbery or other irresistible force;

(c) To any gold, silver, diamonds, watches, jewels, or precious stones, money or valuable securities, or article of great value not being ordinary merchandise by reason of any robbery, theft, embezzlement, removal, or secreting thereof unless the true nature and value thereof has at the time of delivery for conveyance been declared by the owner or shippers thereof to the carrier or his agent or servant and entered in the bill of lading or otherwise in writing.

By these enactments the carriers are answerable for their negligence.

Section 3 then provides that carriers by water shall be liable for the loss of or damage to the personal baggage of passengers by their vessels, and the oath or affirmation of any such passenger shall be primâ facie evidence of the loss of or damage to such articles and their value.

Provided that such liability shall not extend to any greater amount than $500, or to the loss of or damage to any such valuable articles as are mentioned in the next preceding section unless the true nature and value of such articles so lost or damaged have been declared and entered as provided by the said section. The words "provided that such liability" apply to the loss of or damage to the personal baggage of the passenger and so not to these trunks or their contents and the limit of that liability is $500. As to the latter part of the proviso "or to the loss of" these words must be used as if premised with the words "Provided also such liability shall not amount to the loss of or damage to any such valuable articles as are mentioned in the next preceding section," and so the proviso will be limited to the case of the passenger taking with him as personal baggage any of these valuable articles.

That was not done here, and so I must not consider what might have been the consequence if that had been done. There is, perhaps, an inconsistency between the proviso and the preceding section, for the proviso refers to personal baggage and the preceding section re

1889

DIXON

v.

NAV. Co.

fers to merchandise, the expression is "not being ordinary merchandise," but still merchandise. What may or may not be ordinary merchandise it is not necessary to say now, whether extraordinary or unusual as distinguished from the ordinary and common merchandise RICHELIEU such as hardware, dry goods, etc., or of great value, which is a term & ONTARIO used in that preceding section as distinguished from articles of common and ordinary value or what else it may be is no part of the case. It is a hard case that the defendants should be liable for so large a claim as is made upon them when they did not know the nature or the value of the goods they were carrying, and for which carriage by their own act they made no charge.

The goods were clearly at the risk of the plaintiffs by sec. 2, sub-sec. 4 (c), of that Act as against robbery, theft, embezzlement, removal, or secreting of them, for no declaration was made by Dixon of their nature and value at the time they were put aboard, but not at their risk as against the negligence of the defendants in running their boat against the canal pier and thereby damaging the goods.

The company might have protected themselves by printing on these travellers' or privileged tickets the conditions upon which alone they would carry such kind of baggage or luggage. All, however, that was done, according to the evidence was, the secretary of the association and the manager of the defendants' boat had a conversation and they agreed upon terms which the secretary of the association reported to the board of management, that the members should be allowed a deduction on their fares of 20 per cent., and have 300 lbs. of their baggage carried free, but reported nothing about the baggage or any part of it, carried free or otherwise, being at the risk of the owner against all casualties, and so the association had no actual bargain by adopting the secretary's report with the defendants' that such risk was to be borne by the members of the association. The railway conditions endorsed on the members' certificates are not the same as the defendants say they made with the association.

If there had been a binding agreement between the association and the defendants that the baggage of the members of the association, or any part of it, was to be at the risk of the owner of it against all casualties, the defendants to the extent of that condition would not have been liable and the members would be bound by it whether they knew of it or not. But there no condition of that kind was known to the company, nor known in fact by Dixon: McCawley v. The Furness Ry. Co. (f); Gallin v. London & North Western Ry. Co. (g); Hall v. North Eastern Ry. Co. (h).

For the plaintiffs had certainly a full equivalent for the exemption claimed by the company.

I am obliged to say that the motion and the order nisi must, I think, be dismissed, with costs.

(f) L.R. 8 Q.B. 57.

(g) L.R. 10 Q.B. 212.

(h) L.R. 10 Q.B. 437.

1890

DIXON v. RICHELIEU & ONTARIO

NAV. Co.

On appeal to the Court of Appeal the judgments of the Queen's Bench Division and of the trial judge were reversed, Osler J., dissenting (i).

Christopher Robinson, Q.C., and Percy Galt, for the appellants.

Dr. McMichael, Q.C., and D'Alton McCarthy, Q.C., for the respondents.

All the members of the court were agreed that the appeal should be dismissed with costs, the only reasons for judgment being those of

SIR W. J. RITCHIE C.J.-I agree with the Chief Justice of the Court of Appeal that the agreement of 1885 was in existence and binding upon the parties to it in 1886. The terms of the agreement were "that the fare for members of the association (Commercial Travellers of Canada) would be 20% under the regular fare, with an allowance of 300 pounds of baggage free, this baggage must be at owner's risk against all casualties, members will be required to produce their tickets of membership." I also think that the provision as to baggage referred to a well known course of dealing with commercial travellers, and that the trunks damaged were, in accordance with that dealing, commercial baggage and so understood by both parties. Dixon claimed the benefit to which he was entitled as a commercial traveller, and it was accorded to him. He paid the reduced fare, produced his ticket, and had his trunks checked by the baggage master, and thus, as the learned Chief Justice says, they were treated by the owner in the ordinary way as personal baggage, checked, and given in charge of the baggage master.

I do not think the words "against all casualties" were intended to, or did in any way, limit, control or destroy, the protection which the words "at owner's risk" conferred

(i) 15 Ont. App. R. 647.

1890

DIXON

v. RICHELIEU

on the defendants. They strike me, as they appear to have done the Chief Justice, to have been intended to strengthen instead of destroying the exemption from liability. If that be so, and the addition of the three last words do not, as & ONTARIO was contended, destroy the protection given by the two first, the carrier is protected in a case like this.

Inasmuch as the defendant, though guilty of negligence, cannot be said to have been guilty of wilful misconduct, and, except which, the words "owner's risk" would clearly protect the defendants, I think the appeal should be dismissed, and the judgment in favour of the defendants affirmed.

Appeal dismissed with costs.

Solicitors for the appellants: Beatty, Chadwick, Black

stock & Galt.

Solicitors for the respondents: McMichael, Hoskin &

Ogden.

Ritchie C.J.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

Sheriff-Cause of action-Execution of writ of attachment—Abandonment of seizure-Estoppel.

A writ of attachment against the goods of M. in the possession of S. was placed in the sheriff's hands and goods seized under it. After the seizure the goods, with the consent of the plaintiff's solicitor, were left by the sheriff in charge of S., who undertook that the same should be held intact. The sheriff made a return to the writ, that he had seized the goods. The sheriff subsequently seized and sold the goods under executions of other creditors. In an action against the sheriff:

Held, reversing the judgment of the Supreme Court of Nova Scotia, that the act of leaving the goods in the possession of S. was not an abandonment by the plaintiff's solicitor of the seizure, and if it was the sheriff was estopped by his return to the writ from raising the question.

Held, also, that the act of plaintiff's solicitor acting as attorney for S. in a suit connected with the same goods was not evidence of an intention to discontinue proceedings under the attachment.

APPEAL from a decision of the Supreme Court of Nova Scotia affirming the judgment of Mr. Justice Weatherbe in favour of the defendant.

The plaintiffs issued a writ of attachment against one McKean, as an absent debtor, and goods were levied on under the attachment which were in possession of one Spinney, who held them under a bill of sale not filed. The

*XIV. Can. S.C.R. 740.

**PRESENT:-Sir W. J. Ritchie C.J., and Strong, Fournier, Henry, Taschereau and Gwynne JJ.