a stock of jewelry, necessarily implies that such recognition and understanding must have arisen from the outward appearance of the trunk. The testimony on that subject is as follows: Arthur J. Perry testified: "Question. What kind of a trunk was that? Answer. It was a heavy iron trunk-iron bound, dark trunk, small size. Q. Had it any particular designation that you know of? A. It is a trunk that we used in our business, is about all; very small and heavy. Q. The kind of a trunk known as a jeweller's trunk,' is it? A. Commonly used and known as a jeweller's trunk." He also said on cross-examination: "Q. You say that was a small trunk? A. Yes, sir. Q. What was its color? A. A dark trunka black or gray. Q. Was it a small trunk or an ordinarysized trunk? A. It was a small trunk for the weight of it, and what sample men would call a small trunk." That is all the testimony that was given as to the size, shape, or appearance of the trunk.

Kearney, a witness for the interveners, testified as follows as to the kind of trunk generally carried by travelling men in the jewelry trade: "Question. Are you familiar with the custom or usage throughout the United States of selling goods at wholesale? Answer. Yes, sir. Q. By travelling men? A. Yes, sir. Q. State what that usage has been for that time. A. The usual custom is to carry the stock of goods of various values, according to the class of the house, and sell from that stock to the customers. It is the universal custom. Q. What proportion of the dealing in jewelry is done in that manner? A. I think nine tenths in the jobbing trade. Q. And how is this jewelry carried from place to place? A. Carried as baggage-trunks checked as baggage; carried in compartments made in the trunk for that particular purpose. Q. What kind of trunks are they carried in? A. What is known as the 'Crouch' and Fitzgerald' trunks-wooden trunks. I think they are made for that express purposealmost universally made and used for that purpose. Q. Iron bound? A. Iron strapped, not bound. Properly, iron corners and strips; covered by three or four strips in various ways."

Patterson, the baggage agent at Springfield, testified that he checked a piece of baggage on the day in question from Springfield to Petersburg, and he said on cross-examination that he had no particular recollection about the trunk of Perry, and that he did not recollect Perry.

The evidence, therefore, is that the trunk which Perry delivered to be checked as his personal baggage was a wooden trunk, of dark color, iron bound, heavy for its size, and in size what a sample man would call small; and the question

arises on these facts whether the agent was bound to know, or to be presumed to know, that such a trunk contained a stock of jewelry. If he was, it must be presumed, contrary to the positive evidence, that he could tell what was in the trunk by looking at it or handling it, and this notwithstanding the agent testified as follows on cross-examination: "Question. Don't you know, from your experience of 11 years, if a trunk containing jewelry, came into your possession and you handled it, you would be able to tell what was in it? Answer. No, sir; and nobody else."

The hypothetical trunk put to Patterson on cross-examination was described as a trunk with heavy iron corners and iron clasps, iron along the corners, and iron bandages all around and two or three strong locks in front. That hypothetical trunk does not appear to be such a trunk as Perry delivered to the agent.

Perry, as a passenger on a passenger train, was bound to act in good faith in dealing with the carrier. He presented the trunk to the baggage agent as containing his personal baggage, and got a check for it as such; and, that being so, he cannot recover for the loss of a stock of jewelry contained in it. No circumstances occurred, according to the evidence, which required the baggage agent to make inquiries as to the contents of the trunk so presented as personal baggage. The presentation of the trunk, under the circumstances, amounted to a representation that its contents were personal baggage. The fact that Perry and other persons, on other occasions, had obtained on passenger tickets checks from other railroad companies for trunks containing merchandise by representing them as containing personal baggage, furnishes no good reason for permitting a recovery in the present case. There is no evidence to show that on the occasions when Perry and other travellers received checks on passenger tickets for trunks containing jewelry the carrier knew what were the contents of the trunks. The testimony is that John H. Perry did not know of a railroad company which would receive and check a trunk as a passenger's baggage which was filled with valuable jewelry.

In the present case the trunk was offered as containing the personal baggage of a passenger. The passenger did not inform the baggage agent as to the actual contents of the trunk. The agent did not know what the trunk contained. There is no evidence that any agent of the receivers had theretofore received and checked a trunk as the personal baggage of a passenger, knowing that it contained a stock of jewelry; and it does not appear that any railroad company would issue a check to a passenger for a trunk, if previously

informed that the trunk contained a valuable stock of jewelry. The 25 cents extra paid by Mr. Perry on account of the weight of the trunk was paid merely for the overweight, and not at all in respect of the contents of the trunk. It was paid for so much overweight of personal baggage.

Carrier not liable for merchandise shipped as baggage.

It has long been the law that the principle which governs the compensation of carriers is that they are to be paid in proportion to the risk they assume. So long ago as the case of Gibbon v. Paynton, 4 Burrows, 2298, in 1769, it was held, in the king's bench, Lord MANSFIELD delivering the opinion, that a bailee was only obliged to keep goods with as much diligence and caution as he would keep his own, but that a carrier, in respect of the premium he was to receive, ran the risk of them and must make good the loss, though it happen without any fault in him, the reward making him answerable for their safe delivery; that his warranty and insurance was in respect of the reward he was to receive; and that the reward ought to be proportionable to the risk. In that case the sum of £100 was hidden in some hay in an old mail bag, and sent by a coach and lost. The carrier had not been apprised that there was money in the bag. The same principle was applied in Batson v. Donovan, 4 Barn. & Ald. 21, in 1820, where it was held that a carrier was not liable for bank notes contained in a parcel, when he had not been informed of the contents of the parcel.

This principle is commented on in Story on Bailments (9th ed. § 565), where it is said: "It is the duty of every person sending goods by a carrier to make use of no fraud or artifice to deceive him, whereby his risk is increased, or his care and diligence may be lessened; and if there is any such fraud or unfair concealment it will exempt the carrier from responsibility under the contract; or, more properly speaking, it will make the contract a nullity."

There is a uniform series of cases on this principle in the Supreme Judicial Court of Massachusetts. In Jordan v. Railroad Co., 5 Cush. 69, it was laid down that a common carrier of passengers was not responsible for money included in the baggage of a passenger beyond the amount which a prudent person would deem proper and necessary for travelling expenses and personal use, or intended for other persons, unless the loss was occasioned by the gross negligence of the carrier or his servants.

In Collins v. Railroad, 10 Cush. 506, it was held that the term "baggage," for which passenger carriers were responsible, did not include articles of merchandise not intended for personal use; and that a carrier was not liable for the loss of

merchandise sent by a passenger train by a person who expected to go himself in the same train, but did not, the goods having been lost without any gross negligence in the carrier or any conversion by him.

In Stimson v. Railroad Co., 98 Mass. 83, it was held that a railroad company was not liable to either owner or agent, on its ordinary contract of transportation of a passenger, for losing a valise delivered into its charge as his personal luggage, but which contained only samples of merchandise, and, with its contents, was owned by a trader whose travelling agent the passenger was, to sell such goods by sample, nor in tort for the loss, without proof of gross negligence.

In Alling v. Railroad Co., 126 Mass. 121, the above cases in 5 Cush., 10 Cush., and 98 Mass. were cited and applied, and it was held that if a passenger delivered to a railroad company a trunk containing samples of merchandise belonging to a third person, whose agent he was, to be transported to a place for which the agent had a ticket, the only contract entered into was for the transportation of the personal baggage of the agent, and the company was not liable in contract to the owner of the trunk for its loss, nor in tort, except for gross negligence; and that evidence that a large part of the company's business consisted in transporting passengers known as commercial travellers," with trunks like the one lost, containing merchandise; that such trunks were known as "sample trunks," and were of special construction; and that such travellers purchased tickets for the ordinary passenger trains, and received checks for their trunks, and were transported for the price of the tickets,-was immaterial.

In Blumantle v. Railroad, 127 Mass. 322, it was held that evidence that a passenger delivered to the baggage master of a railroad corporation a parcel of merchandise, and received a check for it on showing his passenger ticket, that the baggage master knew it was merchandise, and that other passengers had similar packages, would not warrant a jury in finding that the corporation agreed to transport the merchandise, or became liable for it as a common carrier, in the absence of evidence of an agreement that the merchandise should be carried as freight, or that the baggage master had authority to receive freight to be carried on a passenger train, or to bind the corporation to carry merchandise as personal baggage. In the opinion of the court, delivered by Chief Justice GRAY, the earlier Massachusetts cases, and other cases, English and American, were cited, and it was said: "In the case at bar the plaintiff offered and delivered the bundles as his personal baggage, and requested that they might be checked as such; and the baggage master gave him checks for them accordingly,

as he was bound to do for personal baggage of passengers by St. 1874, c. 372, § 136. There was no evidence that either the plaintiff or the baggage master agreed or intended that they should be carried as freight, or that the baggage master had any authority to receive freight on a passenger train, or to bind the corporation to carry merchandise as personal baggage. The case cannot be distinguished in principle from the previous decisions of this court, already cited. Evidence tending to show that the baggage master knew or supposed the bundles to contain merchandise, or that other passengers had similar bundles, wound not warrant the jury in finding that the defendant agreed to transport the plaintiff's merchandise, or become liable therefor as a common carrier."

In Hawkins v. Hoffman, 6 Hill, 586, it was held that the usual contract of a carrier of passengers included an undertaking to receive and transport their baggage, though nothing was said about it; that, if it was lost, even without the fault of the carrier, he was responsible; but that the term "baggage" in such case did not embrace samples of merchandise carried by the passengers in a trunk, with a view of enabling him to make bargains for the sale of goods.

In Railway Co. v. Keys, 9 H. L. Cas. 556, a railway passenger, with knowledge that the company, although allowing each passenger to carry free of charge a certain amount of uggage, required all merchandise to be paid for, took with him, as if it was personal luggage, a case of merchandise, and did not pay for it as such; and it was held that no contract whatever touching the same arose between him and the company, and that therefore, on the merchandise being lost, he was not entitled to recover the value of it from the company. In Cahill v. Railway Co., 10 C. B. (N. S.) 154, in the court of common pleas, where a railway company was accustomed to allow each passenger to take with him his ordinary luggage, not exceeding a given weight, without any charge for the carriage of it, a passenger took with him as luggage a box containing only merchandise, but not exceeding in weight the limit prescribed for personal luggage. He gave no information to the company's servants as to the contents of the box, nor did they inquire, although the word "glass" was written on the box in large letters. In an action to recover against the company for the loss of the box it was held that, inasmuch as it contained only merchandise and not personal luggage, there was no contract on the part of the company to carry it, and the company was not liable for the loss. That decision was affirmed in the exchequer chamber (13 C. B. (N. S.) 818).

In Railroad Co. v. Carrow, 73 Ill. 348, a passenger on a