of this State now do, to make an express contract exempting itself from liability for losses occurring through the fault, negligence, or willful act of its servants, agents or officers, other than directors, they do not admit the carrier's right to impose its own terms, nor will they construe any general words of exemption as covering such losses. But where the contract is fairly made, the carrier is allowed to stipulate for exemption from loss by negligence, and to limit his liability in case of loss to a given sum, fifty dollars.2

§ 567. The carrier's liability is partly based upon the reward or compensation paid to him for the risk which he assumes; and in respect to parcels, of generally small value, and yet occasionally covering great values, it is but reasonable that he should be permitted to adopt such a mode of receiving them as will limit his liability to a uniform and reasonable sum, or disclose to him the true value of the parcel he receives, and give him a reasonable price for the combined service and risk assumed by him. On this ground the early decisions gave effect to public notices, published in such manner as to bring them to the knowledge of the shipper; such as notices that the carrier will not hold himself responsible for goods above a given sum, unless the same are entered and paid for in proportion to the risk, or unless the contents of packages are made known and a price paid for their insurance.3 If a party under such a notice, deliver and pay the freight on a package as containing two hundred pounds, and it contains four hundred and is lost, the carrier is not held liable beyond the amount for which he received compensation; and he should not be, where the transaction is the same in substance, excluding the public notice.1

Being obliged to receive and carry all packages and parcels that are tendered to him, it is but just that the law should accord to the carrier the right and the means of ascertaining the value of the package delivered to him for transportation. It is as necessary to his safety now as it ever was; and there is perhaps no better mode of securing this infor

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Ú. S., 344, 383; 46 N. Y., 271; Knell v. U. S. & Brazil Steamship Co., 33 Ñ. Y. S. R. (1 Jones and Spencer), 423; Vroman v. Am. M. Union Ex. Co., 5 N. Y. S. C. (T. and C.), 22; ante § 561.

Knell v. U. S. & Brazil S. Co., supra.

2 Belger v. Dinsmore, 51 N. Y., 163; Collender v. Dinsmore, 55 N. Y., 200; Long v. N. Y. C. R. R. Co., 50 N. Y., 76; 57 N. Y., 1-6; 49 N. Y., 249.

3 Clay v. Willan, 1 II. Bl., 293; Yates v. Willan, 2 East, 123 ; Izett v. Mountain, 4 East, 371; Nicholson v. Willan, 5 East, 507; 63 N. Y., 35.

4 Tyly v. Morrice, Carth., 485.

Riley v. Horne, 2 Mooro and Payne, 341; and 5 Bing., 217, decided in November, 1828, about eighteen months before the passage of the act of 1830; 1 William IV., ch. 68; ante § 555.

mation than that now generally used by our express companies; namely, receiving and carrying parcels on a uniform scale of prices, with a stipulation in the receipt given for each, limiting the company's liability to a fixed sum, unless the contents or value of the parcel is disclosed and the freight on it paid according to the distance and risk;1 each package being treated as one article or parcel, without opening it or making any examination of its contents. In this way the shipper puts his own valuation upon the parcel when he delivers it, and is limited to that amount, when after its loss he brings an action to recover its value." § 568. It has been repeatedly asserted by eminent jurists, and assumed by others, that the carrier has a right to demand from his employer such information as will enable him to decide on the proper amount of compensation for his services and risk, and the degree of care which he ought to use in discharging his trust. The English statute relating to parcels, assumes this right; and the principle embodied in that act is carried forward into the statute relating to railway and canal carriers, and into the shipping acts. But it is to be observed that this right to demand information respecting parcels tendered for conveyance, is limited to the reasonable purpose of the inquiry; and that the carrier cannot insist upon the disclosure of the contents of a parcel, as a condition of his receiving it for conveyance. And as a rule, general information is all that the carrier can ask for with propriety.

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1 Kirkland v. Dinsmore, 62 N. Y., 171; Hoadley v. N. Tr. Co., 115 Mass., 304; Boorman v. American Ex. Co., 21 Wis., 152; Southern Ex. Co. v. Purcell, 37 Ga., 103; 34 Ga., 315; Meyer v. Harnden's Ex. Co., 24 How. Pr., 290.

2 Wetzell v. Dinsmore, 54 N. Y., 493.

3 Wyld v. Pickford, 8 Mees. and Welsb., 443; Bernstein v. Boxendale, 6 Com. B. (N. S.), 251; Henderson v. The London & N. W. R. R. Co. (Law Rep.), 5 Exch., 90; Boxendale v. Great Eastern R. R. Co. (Law Rep.), 4 Q. B., 244.

4 Riley v. Horne, 2 Moore and Payne, 341; 5 Bing., 217, Per BEST, J.; BRONSON, J., in Hollister v. Nowlen, 19 Wend., 244.

Anto §§ 555, 556, 558, 559, 531-565.

6 Couch v. London & N. W. R. Co., 14 C. B., 255, 291. The court holds that the railway company was, 1, a common carrier from London to Glasgow, i. e., to a point beyond the realm, to which it carried goods; 2, that the company was a common carrier of packed parcels; 3, that a common carrier has no gen. eral right to refuse to receive a parcel tendered to him for conveyance, unless informed of the nature of its contents. Jervis, C. J.: "With regard to goods of a peculiar value, or of a particular description, if their value be not disclosed at the time they are delivered to the company, the law provides a remedy; the liability of the company is qualified, and the party sending them, is, by reason of the concealment, prevented from recovering the full value of the goods.” The carrier, a railway company, has no right to open a parcel to ascertain whether it contains other parcels addressed to different persons. Couch v.

It is not the shipper's legal duty to volunteer a disclosure of the nature or value of the goods or parcels tendered for carriage. The inquiry comes properly from the carrier, under ordinary circumstances. If he wishes to ascertain the extent of the risk assumed by him, he should Inquire at the time the goods are delivered; and then if he is not answered truly, he will have a defence.1

§ 569. Actual notice given by a common carrier to his customer, specifying the terms on which he receives and carries goods, becomes parcel of the contract when it is proved that the property or parcel was delivered upon the terms thus offered. And though it be not made the basis of a contract, it often becomes effective to shield the carrier from liability for things of special and peculiar value, not disclosed at the time of the delivery; for it appears to be agreed that the carrier may in in this manner require the shipper to state the nature or value of the property, at the risk of having it received and carried as an article of ordinary value. The carrier does not impose an illegal condition; he asks for reasonable information bearing on the transaction; and the

London & N. W. R. Co., 2 C. and K., 789; Simons v. Great Western R. Co., 18 C. B., 805, a carrier is not allowed to impose an unreasonable condition; and a condition that he will not be accountable for the loss of any package insufficiently or improperly packed, is unjust and unreasonable. The carrier is liable for a refusal to receive goods, where he insists upon the delivery of them and his receipt of them, under such a condition. Garton v. Bristol & Ex. R. Co., 1 Best and Smith, 112.

'Brooke v. Pickwick, 4 Bing. R., 218; Phillips v. Earle, 8 Pick., 182. In Walker v. Jackson, 10 M. and W., 161, Baron PARKE says: "I tako it now to be perfectly well understood, according to the majority of opinions upon the subject, that if anything is delivered to a person to be carried, it is the duty of the person receiving it to ask such questions about it as may be necessary; if he ask no questions, and there be no fraud to give the case a false complexion, on the delivery of the parcel, he is bound to cary the parcel as it is. It is the duty of the person who receives it to ask questions; if they are answered improperly, so as to deceive him, then there is no contract between the parties; it is a frand which vitiates the contract altogether. But in this case, if there was a delivery at all of the carriage, with the jewelry in it, it was a delivery to be carried for a reward, namely, five shillings." The jewelry was in the carriage, and the owner did not inform the carrier of the fact; and the carriage was run into the water in landing from a ferryboat.

2 N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S., 344; Hollister v. Nowlen, 19 Wend., 234; Kimball v. Rut. & Bur. R. Co., 26 Vt., 247; Farmers & M. Bank v. The Champlain Transp. Co., 23 Vt., 186, 205; Camden & A. R. v. Baldauf, 16 Penn. St., 67; Reno v. Hogan, 12 B. Mon. R., 63; Buckland v. Express Co., 97 Mass., 127; Fillebroun v. G. T. R. R., 55 Maine, 463; Adams Ex. Co. v. Stettaners, 61 Illinois, 184; B. & O. R. R. v. Brady, 32 Md., 333; Raw. son v. Penn. R. Co., 43 N. Y., 212.

shipper is left free to act on his own discretion, accepting the legitimate consequences of his conduct. By delivering the package or parcel, without giving the information asked for, the shipper leaves it to be carried, if he does not impliedly consent that it shall be carried, in the usual manner; and it may be doubted whether he can refuse all information in regard to it, and compel the carrier to receive a package for conveyance. Under the statute law of England he may do so, and the carrier may limit his liability to a given sum.2

§ 570. Baggage. We have seen that carriers of passengers are considered common carriers of their baggage; 3 and that a passenger cannot charge a carrier with liability for merchandise, money or other valuable things packed with and not being a legitimate part of a traveller's luggage.4

The passenger's baggage must be delivered into the custody of the carrier, in order to charge him with its safe conveyance. Nothing can be more reasonable. If a passenger choose to keep a parcel, an overcoat or a travelling bag or watch in his own custody, there is no reason or justice in holding the carrier responsible for its safety.5 Under many circumstances his custody of the parcel exposes it to dangers from which it would be free in the hands of the carrier. If a passenger on a ferryboat retains a parcel in his hand, he does not expect the carrier to guard it from the chance of loss by theft; and he does not when he takes passage on a steamboat or in an ordinary railway car; and since he does not entrust it with the carrier, he cannot hold him chargeable with its safety, from losses arising from the presence of strangers whom

1 In Cole v. Goodwin, 19 Wend., 251, 268, Mr. Justice COWEN reviews the authorities and says: "So long as the printed notice of a common carrier is confined to the purposes which I have enumerated, and others calculated to save himself, without mischief to his customer, or for the benefit of the latter, I see no objection in principle to giving it full effect. So far it is not a refusal to carry for a reasonable reward. So far it is not a limitation of the carrier's liability. He merely declares to the customer what is true and just: 'yon know the value of your goods; I will not rummage your parcel; I will take your own account; but I will not incur the responsibility of a common carrier unless your account shall prove true. If you commit a fraud or deal captiously or capriciously on your own part, you cannot complain if my duty is reduced to that of a mandatary.' See cases there cited, and Wyld v. Pickford, 8 M. and W., 443.

2 Ante § 530.

3 Ante § § 502, 503, 504, 498.

4 Anto § § 523, 530; C. & C. Air Line R. R. Co. v. Marcus, 38 Ill., 220. Tower v. Utica & S. R. R. Co., 7 Hill, 47; Blanchard v. Isaacs, 3 Barb., 338; Steamboat v. Vanderpool, 16 B. Monroe, 302; Clark v. Burns, 118 Mass,

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he cannot exclude from the conveyance. And yet the carrier may liable for the loss of such a parcel arising from the negligence of his servant, when it is placed in the car or handled by him at the end of the journey.1

§ 571. Baggage, like other goods, is to be duly delivered to the carrier; it is to be placed within his custody in the usual and ordinary manner. Under a statute of this State, prescribing the mode in which railroad corporations shall transact their business, a check must be affixed to each parcel of baggage delivered for transportation, and a duplicate thereof given to the owner or person delivering it; and a penalty is imposed upon the corporation for every refusal. If upon producing the check, the baggage be not redelivered at the proper place, the passenger may be himself a witness in a suit brought in his own name, to prove the contents and value of the baggage.2

Having the right to prescribe reasonable regulations, it is quite evident that railroad carriers may in this State insist that all baggage shall be delivered at the proper place of receiving it, a reasonable time before the train is to leave; and that each parcel of baggage shall be properly checked that they may adopt a rule to check his baggage, on the passenger's showing his ticket; and to exchange tickets with connecting roads. Courts will enforce and give effect to these, and like rules, for the protection of both parties.3

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In the first place, a passenger's baggage must be checked by the person having authority to receive and check it; and his authority may be proved by showing that he was accustomed to receive and check

' Le Conteur v. 'London & S. W. R. Co., 12 Jur. N. S., 266; L. R., 1 Q. B., 54; S. C., 6 B. and S., 961. The court in this case, involving a chronometer, hold that the circumstances must be very strong to show an intention on the part of a passenger, to relieve the company from their ordinary liability to carry safely. In Butcher v. London & South Western R. Co. (16 Com. Bench, 13), a porter of the company took from a passenger, as usual, a carpet bag (which contained a large sum of money) for the purpose of securing a cab; and having secured the cab within the station, placed the bag in it, and returned for other baggage belonging to the passenger; the cab disappeared; and the company was held liable for the loss.

2 2 R. S., sixth ed., 540, 563. Under the Illinois statute the passenger was allowed to testify to the contents of the lost trunk or parcel. Parmeleo v. McNulty, 19 Ill., 558.

3 Iil. Central R. Co. v. Copeland, 24 Ill., 332; a railroad cannot refuse to label or check baggage, and so compel a passenger to keep it in his personal care. Munster v. South E. R. Co., 4 C. B. (N. S.), 676 ; Davis v. M. S. & N. J. R. Co., 22 Ill., 278.

4 Mich. So. & Northern Ind. R. Co. v. Myers, 21 Ill., 627; Butler v. Hudson River R. Co., 3 E. D. Smith, 571.