tract he enters into

without in fact becoming an insurer unless he limits his liability expressly. In cases of express warranties the compact of the parties is to be gathered from the words they use in making them. When warranties are expressly made, the parties themselves may guard against excessive liability by any exceptions they please, and in those implied by law the law itself must take care to keep them within the boundaries of reason and justice so as not to impose impracticable obligations. It is now proposed to consider the authorities relied on as having a direct bearing on the question before us. The case which the plaintiff's counsel relied on as the strongest in his favor is, Sharp v. Grey, 9 Bing. 457. But that case when examined furnishes no sufficient authority for the extensive liability which the plaintiff seeks to impose on the defendants. There the plaintiff was injured by an accident caused by the breaking of the axle-tree of a stage coach. The defect might have been discovered if a certain examination had taken place, and it was made a question of fact at the trial whether it would have been prudent or not to make that examination. TINDAL, C. J., who tried the cause, is reported to have directed the jury to consider" Whether there had been on the part of the defendant that degree of vigilance which was required by his engagement to carry the plaintiff safely." Now, if the learned Chief Justice had supposed there was an absolute warranty of roadworthiness this direction could not have been given, as it would then have been immaterial whether the defendant had used vigilance or not, and the degree of vigilance would have been an utterly immaterial consideration. The jury having found, on his direction, for the plaintiff, a motion was made, in the absence of TINDAL, C. J., for a new trial. Two of the learned judges, in refusing the rule (GASELEE and BOSANQUET, JJ.) are certainly reported to have used expressions which seem to indicate that they thought the defendant bound to supply a roadworthy vehicle. PARK, J., uses language which, as reported, is ambiguous. But the judgment of ALDERSON, J., is distinctly opposed to the notion of a warranty against latent and undiscoverable defects. He says, "a coach proprietor is liable for all defects in his vehicle which can be seen at the time of construction as well as for such as may exist afterwards and be discovered by investigation." We have referred somewhat fully to this case, because it was put forward as the strongest authority in support of the plaintiff's claim which can be found in the English courts, and because it was relied on by the judges of the Court of Appeal in New York, in a decision which will be afterwards referred to. But the case, when examined, furnishes no sufficient authority for the unlimited warranty now contended for. The facts do not raise the point for decision, and the authority of TINDAL, C. J., and ALDERSON, J., is against the plaintiff. The dictum of BEST, C. J., in Bremner v. Williams, 1 Car. & P. 414, was not necessary to the decision of the case. The ruling of Lord ELLENBOROUGH in Israel

v. Clark, 4 Esp. 259, was also relied on. Of these two last authorities BLACKBURN, J., says, in his judgment below, "These are, it is true, only Nisi Prius decisions, and neither reporter has such a character for intelligence and accuracy as to make it at all certain that the facts are correctly stated, or that the opinion of the judge was rightly understood." We find also that BEST, C. J., certainly makes observations in the opposite sense in the case of Crofts v. Waterhouse, 3 Bing. 319, 321. These cases are really the only English authorities which afford any support at all to the plaintiff's view; for the interpretation reported to have been given by CRESSWELL, J., in Benett v. The Peninsular and Oriental Steam Packet Co., 6 C. B. 782, of the case of Sharp v. Grey, was only an observation made during an argument, when it was cited as incidentally bearing on the question then before the court, and cannot be relied on as an authority. On the other hand, there is not only the plain distinction between the liabilities of the carriers of goods and of passengers constantly referred to by text writers and judges, as well known and settled law, but numerous cases have been decided on grounds at variance with the supposition that there existed contemporarily with them the liability by way of warranty. In Aston v. Heaven, 2 Esp. 533, which was the case of injury to a passenger, EYRE, C. J., after carefully pointing out the law as to the liability of carriers of goods to make good all losses (except those happening from the act of God or the king's enemies), and the reasons for it, says, "I am of opinion the cases of losses of goods by carriers, and the present are totally unlike." Again, "There is no such rule in the case of the carriage of persons; this action stands on the ground of negligence." In Christie v. Griggs, 2 Camp. 79, Sir James MANSFIELD says, "there is a difference between a contract to carry goods and a contract to carry passengers. For the goods the carrier was liable at all events, but he did not warrant the safety of the passengers; his undertaking as to them went no further than this, that as far as human care and foresight could go he would provide for their safe conveyance." In Crofts v. Waterhouse, 3 Bing. 319, the observations attributed to BEST, C. J., clearly show that he did not think there was any warranty on the part of carriers of passengers, and PARK, J., in the same case says, "a carrier of goods is liable at all events, a carrier of passengers is only liable for negligence." But besides the observations of individual judges to show what has hitherto been understood to be the law, there is the long series of important cases involving costly and protracted trials, in which, by common consent, the liability of carriers of passengers has been based upon the duty to take due care, and not upon a warranty. In Grote v. The Chester and Holyhead Railway Co., 2 Exch. 251, where the accident arose from the breaking down of one of the bridges of the railway, the case turned on what would or would not be negligence for which the company were answerable.

PARKE, B., says, "It seems to me the company would still be liable for the accident unless he (the engineer) also used due and reasonable care, and employed proper materials in the work." There is no trace in the report that it ever occurred to the court to suppose there was any warranty of the safety of the bridge. In a case tried before ERLE, C. J., Ford v. The London and South-Western Railway Co., 2 F. & F. 730, the plaintiff was injured by the tender of the train being thrown off the line, and one of the causes was alleged to be the defective tire of one of the wheels of the tender. ERLE, C. J., in his direction, told the jury, "The action is grounded on ́negligence; negligence is not to be defined, because it involves some inquiry as to the degree of care required, and that is the degree which the jury think is reasonably to be required from the parties, considering all the circumstances. The railway company is bound to take reasonable care to use the best precautions in known practical use for securing the safety of their passengers." There the defect was in the tire of a wheel of the tender of the train by which the plaintiff travelled, and no suggestion that a warranty of its soundness existed was made throughout the case. But a case still more directly bearing upon the present point was tried before COCKBURN, C. J., Stokes v. The Eastern Counties Railway Co., 2 F. & F. 691. There the accident happened in consequence of the breaking of the tire of the near wheel of the engine. The tire broke from a latent flaw in the welding. The trial lasted six days, and the questions mainly were whether the flaw was not visible, and whether by the exercise of care it might not have been detected. The Lord Chief Justice commences a full direction to the jury by saying, "the question is, whether the breaking of the tire resulted from any negligence in the defendants or their servants for which they are responsible." The latent defect in the tire was admitted to be the cause of the accident, but the jury having found in answer to specific questions that there was no evidence that the tire was negligently welded, and that the defect had not become visible, and having in other respects negatived negligence, the verdict was entered for the defendants. The facts of the case appear to be exactly like the present, except that in this the defective tire was in the wheel of the carriage, and there in the engine; but for the reasons already given it can never be that a warranty can exist as to the carriage, but not as to the engine drawing it. Thus then it is plain a trial of six days took place on issues which were utterly immaterial if a warranty ought to have been implied; and there the learned Chief Justice and the parties themselves seem to have been utterly unconscious of the contract which was really existing, if the plaintiff in this case is right; for the warranty as an obligation implied by law must have existed at the time of these trials if it exists now; and surely it is strong to show that no such rule does form part of the common law, that it was not then recognized or declared. The learned counsel for the plaintiff

insisted that a carrier by sea is bound to have his ship seaworthy. Undoubtedly the carrier of goods by sea, like the carrier of goods by land, is bound to carry safely, and is responsible for all losses however caused, whether by the unseaworthiness of the ship or otherwise; and it does not appear to be material to inquire, when he is subject to this large obligation, whether he is also subject to a less one. In the case of Lyon v. Mells, 5 East, 428, it was no doubt stated by the court that the carrier of goods is bound to have a seaworthy ship, but this only as part of his general liability. It is well to observe that Holroyd, who argued for the plaintiff, and Gaselee, for the defendant, both state the liability of the carrier in all its breadth; viz., a liability for all losses however happening, except by the act of God or the king's enemies. This case, therefore, falls within the class of decisions relating to the liability of the carriers of goods. No case has been found where an absolute warranty of the seaworthiness of the ship in the case of passengers has arisen, and it affords a strong ground for presuming that no such liability exists, that no passenger in this maritime nation has ever founded an action upon it. The case of Burns v. Cork and Bandon Railway Co. in the Irish Court of Exchequer, 13 Ir. Com. Law, 543, certainly does not support the plaintiff's view of the law. The court say there that the averments in the defendant's plea are all consistent with gross and culpable negligence, and on that ground give judgment for the plaintiff. The judgment plainly shows that the court do not mean to declare there is an absolute undertaking that the vehicle shall be free from all defects. The language is "free from defects as far as human care and foresight can provide, and perfectly roadworthy." The court refers with approbation to the language of Sir William MANSFIELD, and ALDERSON, J., which helps to explain that they were disposed to adopt the views of those learned judges, and to place the, liability not on a warranty, but on the obligation to exercise care and foresight.

It now remains to consider the American decisions on the subject. They have not been uniform. The judgment of Mr. Justice HUBBARD, in Ingalls v. Bills, 9 Met. 1, 15, cited at length by my brother MELLOR in his judgment below, is opposed to the notion of a warranty. Decisions, however, were cited before us by Mr. Manisty, from the courts of the State of New York, having a contrary tendency, and to show us that in that State the law had been declared in favor of annexing a warranty to the contract. The most important of these cases is Alden v. The New York Central R. R. Co., in the Court of Appeals in the State of New York, 26 N. Y. 102. That was the case of an accident caused by a defect in an axle-tree. The reasons given by GOULD, J., are not satisfactory to our minds; the learned judge seems to assume there was no negligence shown on the part of the company. He cites the case of Sharp v. Grey, in the Court of Common Pleas here, and he interprets that case to determine that the carrier warrants the road

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worthiness of his coach. But if the view of the case of Sharp v. Grey, taken in the early part of this judgment is correct, the learned judge gave too great weight to it. GOULD, J., then, after having given the rule as he supposed it to be laid down in Sharp v. Grey, observes, " And though this may seem a hard rule, it is probably the best that can be laid down, since it is plain and easy of application, and when once established is distinct notice to all parties of their duties and liabilities." With deference to the learned judge, these reasons, founded on the convenience of the arrangement, are scarcely sufficient to warrant the introduction of onerous obligations into the contracts of parties; and the terms in which the judgment is given rather lead to the conclusion that the learned judge was conscious that he was annexing to the contract of the carrier of passengers what had not hitherto been understood to form part of it. The English courts are desirous to treat the American decisions with great respect, but as their authority here must mainly depend on the reasons on which they are founded, we have felt bound to examine them, with the result which has been stated. Warranties implied by law are for the most part founded on the presumed intention of the parties, and ought certainly to be founded on reason, and with a just regard to the interests of the party who is supposed to give the warranty, as well as of the party to whom it is supposed to be given. We have already gone fully into the reasons for holding that in our opinion this alleged warranty is not so founded. On the other hand, it seems to be perfectly reasonable and just to hold that the obligation well known to the law, and which, because of its reasonableness and accordance with what men perceive to be fair and right, has been found applicable to an infinite variety of cases in the business of life, viz., the obligation to take due care, should be attached to this contract. We do not attempt to define, nor is it necessary to do so, all the liabilities which the obligation to take due care imposes on the carrier of passengers, nor is it necessary, inasmuch as the case negatives any fault on the part of the manufacturer, to determine to what extent and under what circumstances they are liable for the want of care on the part of those they employ to construct works, or to make or furnish the carriages and other things they use. [See on the point Grote v. The Chester and Holyhead Railway Co., 2 Exch. 251.] "Due care," however, undoubtedly means, having reference to the nature of the contract to carry, a high degree of care, and casts on carriers the duty of exercising all diligence to see that whatever is required for the safe conveyance of their passengers is in fit and proper order. But the duty to take due care, however widely construed, or however vigorously enforced, will not, as the present action seeks to do, subject the defendants to the plain injustice, to our minds, of being compelled by the law to make reparation for a disaster arising from a latent defect in the machinery they are obliged to use, which no human skill or care could either have pre