Coggs v Bernard

JurisdictionEngland & Wales
Judgment Date01 January 1790
Date01 January 1790
CourtHigh Court

English Reports Citation: 92 E.R. 107

COURTS OF KING'S BENCH AND COMMON PLEAS

Coggs
and
ers. Bernard

S. C. 1 Sm. L. C. (11th ed.) 173. Applied, Boarman v. Brown, 1842, 3 Q. B. 526; 11 Cl. & Fin. 1. Explained, Ross v. Hill, 1846, 2 C. B. 890. Applied, Donald v. Suckling, 1866, L. R. 1 Q. B. 594; Skelton v. London and North-Western Railway Company, 1867, L. R. 2 C. P. 636; Readhead v. Midland Railway Company, 1869, L. R. 4 Q. B. 382; Giblin v. M'Mullen, 1869, L. R. 2 P. C. 336. Recognized Searle v. Laverick, 1874, L. R. 9 Q. B. 122; Liver Alkali Company v. Johnson, 1874, L. R. 9 Ex. 340; Nugent v. Smith, 1875-76, 1 C. P. D. 24, 423; Harris v. Great-Western Railway Company, 1876, 1 Q. B. D. 529. Considered, Bergheim v. Great-Eastern Railway Company, 1878, 3 C. P. D. 223. Dictum applied, The Moorcock, 1889, 14 P. D. 70; Shaw v. Great-Western Railway Company [1894], 1 Q. B. 380. Referred to, The Winkfield [1902], P. 59; Harris v. Perry 91903], 2 K. B. 226; Cheshire v. Bailey [1905], 1 K. B. 242.

[909] coggs vers. bernard. S. C. Com. 133. Salk. 26. 3 Salk. 11. Holt, 13. Entry, Salk. 735, post, vol. 3, p. 163. [S, C. 1 Sm. L, C. (llth ed.) 173. Applied, Bom-man v. Brown, 1842, 3 Q. B. 526; 11 01. & Fin. 1. Explained, Boss v. Hill, 1846, 2 C. B. 890. Applied, Donald v. Suckling, 1866, L. R. 1 Q. B. 594; Skelton v. London and North-Western Railway Company, 1867, L. R. 2 C. P. 636; Beadhead v. Midland Railway Company, 1869, L. R. 4 Q. B. 382; Giblin v. M'Mullen, 1869, L. R. 2 P. C. 336. Recognized, Searle v. Laverick, 1874, L. R. 9 Q. B. 122 ; Liver Alkali Company v. Johnson, 1874, L. R. 9 Ex. 340; Nugent v. Smith, 1875-76, 1 C. P. D. 24, 423; Harris v. Great-Western Railway Company, 1876, 1 Q. B. D. 529. Considered, Bergheim v. Great-Eastern Railway Company, 1878, 3 C. P. D. 223. Dictum applied, The Moorcock, 1889, 14 P. D. 70; Shaw v. Great-Western Railway Company [1894], 1 Q. B. 380. Referred to, The WwkfeU [1902], P. 59; Harris v. Perry [1903], 2 K. B. 226; Cheshire v. Bailey [1905], 1 K. B. 242.] If a man undertakes to carry goods (a)1 safely and securely, he is responsible for any damage they may sustain in the carriage thro' his neglect tho' he was not a common carrier and was to have nothing for the carriage. In an action upon the case the plaintiff declared, quod cum Bernard the defendant, the tenth of November 13 Will. 3, at, &c. assumpsisset, salvo et secure elevare, Anglice to take up, several hogsheads of brandy then in a certain cellar in D. et salvo et secure deponere, Anglice to lay them down again, in a certain other cellar in Water-Lane, the said defendant and his servants and agents, tarn negligenter et improvide pub them down again into the said other cellar, quod per defeetum Curae ipsius the defendant, his servants and agents, one of the casks was staved, and a great quantity of brandy, viz. so many gillons of brandy was spilt. After not guilty pleaded, and a verdict for the plaintiff, there was a motion in arrest of judgment, for that it was not aliedged in the declaration that the defendant was a common porter, nor averred that he had any thing for bis pains. And the case being thought to be a case of great consequence, it waa this day argued seriatim by the whole Court. Gould Justice. I think this is a good declaration. The objection that has been made is, because there is not any consideration laid. But I think it is good either way, and that any man, that undertakes to carry goods, is liable to an action, be he a common carrier, or whatever he is, if through his neglect they are lost, or come to any damage : and if a praemium be laid to be given, then it is without question so. The reason of the action is, the particular trust reposed in the defendant, to which he has concurred by his assumption, and in the executing which he has miscarried by his neglect. But if a man undertakes to build a house, without any thing to be had for his pains, an (fr)1 action will not lie for non-performance, because it is nudum pactutn. So is the 3 H. 6, 36. So if goods are deposited with a friend, and are stolen from him, no action will lie. 29 Ass. 28. But there will be a difference in that case upon the evidence, how the matter appears ; if they were stolen by reason of a gross neglect in the bailee, the trust will not save him from an action, otherwise if there be no gross neglect. So ia Doct. & Stud. 129, upon that difference. The same difference is where he comes to goods by finding. Doct. & Stud, ubi supra. Ow. 141. But if a man takes upon him expressly to do such a fact safely and securely, if the thing comes to any damage by his miscarriage, an action will lie against him. If it be only a general bailment, the bailee will not be chargeable, without a gross neglect. So is Keilw. 160. 2 H. 7, 11. 22 Ass. 41. 1 R. 10. Bro. Action sur le Case, 78, Southcote's case is a hard case indeed, to oblige all men, that take goods to keep, to a special acceptance, that they will keep them as safe as they would do their own, which [910] is a thing 108 TRINITY TERM, 2 ANN^E BEGIN ^E JLD.RAYM.nl. no man living that is not a lawyer could think of: and indeed it appears by the report of that case in Cro. El. 815, that it was adjudged by two Judges only, viz. Gawdy and Clench. But in 1 Ventr. 121, there is a breach assigned upon a bond conditioned to give a true account, that the defendant had not accounted for 301. the defendant shewed that he locked the money up in his master's warehouse, and it was stole from thence, and that was held to be a good account. But when a man undertakes specially to do such a thing, it is not hard to charge him for his neglect, because he had the goods committed to his custody upon those terms. Powya agreed upon the neglect. Powell. The doubt is, because it is not mentioned in the declaration, that the defendant had any thing for his pains, nor that he was a common porter, which of itself imports a hire, and that he is to be paid for his pains. So that the question is, whether an action will lie against a man for doing the office of a friend ; when there is not any particular neglect shewn 1 And I hold, an action will lie, as this case is. And in order to make it out I shall first shew, that there are great authorities for me, and none against me; and then secondly, I shall shew the reason and gist of this action: and then thirdly, I shall consider Southcote's case. 1. Those authorities in the Register 110 a. b. of the pipe of wine, and the cure of the horse, are in point, and there can be no answer given them, but that they are writs, which are framed short. But a writ upon the case must mention every thing that is material in the case, and nothing is to be added to it in the count, but the time, and such other circumstances. But even that objection is answered by East. Entr. 13 c. where there is a declaration so general. The Year Books are full in this point. 43 Ed. 3, 33 a. there is no particular act shewed. There indeed the weight is laid more upon the neglect, than the contract. But in 48 Ed. 3, 6, and 19 H. 6, 49, there the action is held to lie upon the undertaking, and that without that it would not lie; and therefore the undertaking is held to be the matter traversable, and a writia quashed for want of laying a place of the undertaking. 2 H. 7, 11. 7 H, 4, 14, these cases are all in point, and the action adjudged to lie upon the undertaking. 2. Now to give the reason of these cases, the gist of these actions is the under taking. The party's special assumpsit and undertaking obliges him so to do the thing, that the bailor come to no damage by his neglect. And the bailee in this case shall answer...

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66 cases
  • R. v. Raponi (W.), 2006 ABQB 593
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 23 Junio 2006
    ...2]. Coggs v. Bernard, [1558-1774] All E.R. Rep. 1; 2 Ld. Raym. 909; 1 Com. 133; Holt K.B. 13; 1 Salk. 26; 2 Salk. 522; 3 Salk. 11; 92 E.R. 107 (Q.B.), refd to. [para. 4, footnote 3]. Chartwell Shipping Ltd. v. Q.N.S. Paper Co., [1989] 2 S.C.R. 683; 101 N.R. 1; 26 Q.A.C. 81; 62 D.L.R.(4th) 3......
  • Phillip v. Whitecourt General Hospital et al., (2004) 359 A.R. 259 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 21 Octubre 2004
    ...3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 387, footnote 203]. Coggs v. Bernard (1703), 2 Ld. Raym. 909; 92 E.R. 107 (Eng.), refd to. [para. 387, footnote Webb et al. v. Motta et al. (1998), 233 A.R. 9 (Q.B.), refd to. [para. 388, footnote 205]. Anderson-Red......
  • R. v. Ticknovich (N.M.), 2003 ABQB 597
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 3 Julio 2003
    ...251; 14 D.L.R.(4th) 92; 43 C.R.(3d) 1; 35 Alta. L.R.(2d) 1, refd to. [para. 8, footnote 6]. Coggs v. Bernard (1703), 2 Ld. Raym. 909; 92 E.R. 107, refd to. [para. 8, footnote Chartwell Shipping Ltd. v. Q.N.S. Paper Co., [1989] 2 S.C.R. 683; 101 N.R. 1; 26 Q.A.C. 81, refd to. [para. 8, footn......
  • United Kingdom (Her Majesty's Commissioners of Customs and Excise) v. Barclays Bank plc, (2006) 360 N.R. 218 (HL)
    • Canada
    • 21 Junio 2006
    ...60]. Elguzouli-Daf v. Commissioner of Police, [1995] Q.B. 335 (C.A.), refd to. [para. 60]. Coggs v. Bernard (1703), 2 Ld. Raym. 909; 92 E.R. 107 (K.B.), refd to. [para. Ultramares Corp. v. Touche (1931), 174 N.E. 441 (N.Y.C.A.), refd to. [para. 74]. Murphy v. Brentwood District Council, [19......
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3 books & journal articles
  • Concurrent Duties
    • United Kingdom
    • The Modern Law Review No. 82-1, January 2019
    • 1 Enero 2019
    ...Byrne n34above, 161-166, compares the action in that case to the historical concept of warranty.48 Coggs vBernard (1703) 2 Ld Raym 909, 92 ER 107 (KB).49 Mitchell, n 33 above, 192.50 ibid, 195; P. Winfield, TheProvinceoftheLawofTort(Cambridge: CUP, 1931) ch V.51 Mitchell, n 33 above, 194-197......
  • KHATOUN V. HOLLAND WEST AFRICA LINES & ANOR
    • Nigeria
    • DSC Publications Online Nigerian Supreme Court Cases. 1961 Cases reported in 1961
    • 11 Noviembre 2022
    ...Jo. 65. 42 W.R. 58; 10 T.L.R. 25; 38 Sol. Jo. 26. 3. Coggs v. Bernard (1703) 2 Ld. Raym. 909; 1 Corn. 133; Holt, K.B. 131; 3 Salk. 11; 92 E.R. 107. 4. Woods v. Martin's Bank Ltd., and Another (1958) 1 W.L.R. 1018; (1958) 3 All. E.R. 166; (1959) 1 Q.B. 55; 22 So!. Jo. 655. 20 Oakey for the A......
  • INSURANCE IN A BAILMENT
    • Singapore
    • Singapore Academy of Law Journal No. 1995, December 1995
    • 1 Diciembre 1995
    ...but all other types of insurance are indemnity insurance. 5 (1806) 2 B&PNR 269. 6 (1852) 7 Exch 323. 7 Holt CJ in Coggs v Barnard(1703) 2 Ld Raym 909, identified six different categories of bailments and said that the bailee in all cases of bailment is liable for negligence. 8 (1856) 5 E&B ......

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