7. But it was finally found, upon more careful scrutiny, that there was no objection, in principle, to allowing the parties to contract, if done freely and upon reasonable conditions of equality, for any degree of relaxation of the extraordinary degree of vigilance and responsibility imposed upon carriers by the common law, provided the relaxation were not carried into the domain of negligence and inattention to duty. See Farmers' and Mechanics' Bank v. Champlain Transportation Co., 23 Vt. R. 186, 205, 206, where we have discussed the point more in detail.

8. After this point was universally yielded, if we except the state of New York, and some few others following their lead, it was next attempted to carry the right of exemption from responsibility, on the part of common carriers, by means of special contracts, still further, and virtually to allow them to make their own terms, both as to price and the degree of responsibility assumed in regard to the risk of transportation. The English statute, entitled The Railway and Canal Traffic Act, 1854, 17 & 18 Vict. c. 31, s. 7, was passed in consequence, and has placed the subject upon more reasonable and practicable grounds in that country. This act allows the carrier to make any condition in regard to the terms of transportation, such as giving notice of the contents of packages, and paying insurance in advance; in short, upon any point, and to any extent, which the court before whom any action may be brought shall adjudge to be just and reasonable, provided that such conditions shall not be binding unless incorporated into a special contract signed by the person owning or delivering the goods. The English statute also provides, that no stipulation exonerating the carrier from responsibility for losses or injuries, caused by the neglect or want of ordinary care of the carrier or his servants, shall be binding upon the owner of the goods. As to the reasonableness of the conditions to be imposed by carriers, the American courts had anticipated the English statute. Farmers' and Mechanics' Bank v. Champlain Transportation Co., 23 Vt. R. 186. 9. The rule established by the case of N. J. Steam Navigation Co. v. Merchants' Bank, supra, in regard to the responsibility of the company to the owner for the safe transportation and delivery of parcels intrusted to expressmen employing such company, is not very different from that which had before existed in regard to parcels carried upon stages and steamboats by the drivers and captains, in some instances without the actual knowledge and consent, perhaps, of the owners of such agencies of transportation; and in other cases, when such agents or servants were allowed to carry such parcels, without accounting for the compensation, that being treated as a mere perquisite of office. In all such cases the owners of the conveyances always have been held responsible, as common carriers, for the transportation of such parcels. Farmers' and Mechanics' Bank v. Champlain Transportation Co., 23 Vt. R. 186, 203, 204, and cases cited. Before the establishment of express companies this was the usual and only public mode of transporting small parcels. Mayall v. Boston & Maine Railroad Company, 19 N. H. R. 122.

10. In turning our attention more specifically to the responsibility of express carriers, the first consideration distinctive of this mode of transportation is, that they are bound to deliver parcels to the persons to whom they are addressed.

This was the general rule as to carriers by land, until since the introduction of railways. Hyde v. Trent & Mersey Nav. Company, 5 T. R. 389; Stephenson v. Hart, 4 Bing. 476; Farmers' and Mechanics' Bank v. Champlain Transp. Co., 23 Vt. R. 186. Since the introduction of railways, carriers in that mode have been exempted from personal delivery of their parcels, and allowed to deposit them in warehouse, and thus exonerate themselves from the longer continuance of the responsibility of carriers. Thomas v. The Boston & Prov. Railroad Company, 10 Met. 472. But the great necessity for having express carriers arose from this defect in delivery of goods by the ordinary railway transportation ; and the same defect also existed in regard to the delivery of goods transported by steamboats. They could only deliver at the wharves, and were not expected to employ special messengers and porters to deliver their goods. Chickering v. Fowler, 4 Pick. 371. And it is to remedy this inconvenience, and restore the carrying business by land to its former state, in some degree, that express companies have come in use, with the distinctive character of making personal delivery of their parcels to the consignees. Redfield on Railways, § 154. This has been so often decided that it is scarcely required that any considerable number of cases should be cited. This question is considerably examined, and the views just stated fully confirmed, in the case of Baldwin v. The American Express Co., 23 Ill. R. 197; s. c. affirmed, 26 Id. 504.

11. Perhaps the most important practical question, in regard to the responsibility of express carriers, arises upon stipulations made with them, or claimed to be made with them, in regard to the extent of their responsibility for the transportation. It has become very common with such companies to insert in the bills of lading or receipts which they deliver to those who leave parcels with them for transportation, such conditions as exonerate them from all extraordinary responsibility. We have no occasion to discuss the propriety or good policy of such practices. It seems to be regarded as competent, and binding upon the owners of the goods, if understandingly assented to by them. And this will generally be presumed where it is not, in some way, written or printed in such manner, purposely, as not to attract observation. If that appear to have been the design of the carrier, it is surely proper that he should derive no benefit from the condition. Any such evasion or subterfuge, which is obviously intended to mislead the owner of the goods, by leaving the impression that he has secured the unqualified responsibility of the carrier, while, at the same time, the carrier has secured a formal, but covert stipulation on his part, for exemption from that responsibility, should certainly be discountenanced.

12. And it has always seemed to us the courts will find it convenient, if not indispensable, to restrain these express companies, to some extent, in regard to limitations which they impose upon their customers. It should certainly appear that no deception is practised, but that the owner of the goods fully understood the conditions upon which the carrier claimed to deliver the goods, or else that he might have done so but for his want of ordinary care; and especially will this be requisite to be watchfully enforced, whenever the conditions found in the receipt are of an unusual and extraordinary character, and such as it is presumable that the owner of the goods would not readily have submitted to, without

the stress of some extraordinary pressure. In short, unless it appear that the conditions exonerating the responsibility of the carrier are reasonable, and such as it may fairly be supposed the owner of the goods would readily have assented to, nothing but the clearest, most satisfactory evidence that he did assent to them, should be received. And in all cases, any condition exonerating the carrier from his ordinary common-law responsibility should be clearly and plainly expressed in the contract, and in a form readily to attract the attention of the consignor of the goods.

13. And it may well be made a question, how far the consignor of goods by express, and especially the porter, or hackman, or city express, delivering parcels to the express carrier, have authority to bind the owner of the goods. The English statute makes the special contract of the owner or person delivering the goods sufficient in all cases. And any other rule would be liable to great inconvenience in practice, since the express carrier may make his own conditions for accepting goods, at the peril of an action, if the condition is not acceded to, and proves to be unreasonable, upon the trial of the action for not carrying. In other words, express carriers, in common with all other carriers, are bound to accept and carry all goods offered, within the range of the business they hold themselves out to do, if the charges are also tendered; and they cannot exonerate themselves from this obligation at common law by insisting upon annexing any condition relieving their ordinary responsibility. Garton v. Bristol and Exeter Railw. Company, 1 El. B. & S. 112; s. c. 7 Jur. N. S. 1234. But if they do annex any such condition, at common law, or what is called under the English statute an unreasonable condition, and the same is not acceded to, they remain liable to such damages as the party has sustained, by reason of their refusal to carry the goods, or what is the same thing, to carry them except upon conditions which they had no right to claim. But if, instead of refusing to accede to the conditions claimed by the carrier, and pursuing his remedy by action, the owner of the goods finds it more convenient to yield to the demands of the carrier, which he might have resisted, and stipulates with the carrier, fully and understandingly, for a reduced degree of responsibility, as a choice of evils, we see no good reason why he should not be bound by his contract, although to some extent compelled to adopt it, as the lesser of two evils, both of which he could not escape. And in general it is fair to conclude that the consignor of the goods, or any agent to whom he sees fit to intrust the delivery of the goods, will and must have authority to bind the owner, in his absence, since some one must act on his behalf in giving instructions, and making conditions affecting the transportation; and in the absence of the owner, and of any known general agent of such owner, it seems almost a necessity to give the person delivering the goods, or having charge of the delivery, not the mere porter or servant, but the agent under which such servant acts, power to bind the owner. The recent English case of Bartlett v. London and Northwestern Railw. Co., 7 H. & N. 400, s. c. 8 Jur. N. S. 58, seems to assume the same general view. It was there held that the consignors had the right, in the first instance, to make a binding contract with the carrier, as to the mode of delivery; but that the carrier would be excused if he modified the performance of the same, according

to the directions of the consignee, thus giving the consignor, whether owner or not, the right to make a binding contract on the part of every one interested in the transportation in the first instance, as to every matter pertaining to it, but at the same time, from like considerations of convenience and necessity, allowing the consignee to modify such contract as to those matters apparently affecting his agency, whether he were in fact the owner or not.

14. It was decided in the case of Garton v. Bristol and Exeter Railw. Company, supra, that a railway company had no right to close their office and refuse to receive parcels packed in the same way express agents were accsutomed to pack them, while they were still receiving such parcels from such agents.

15. In a late English case, Lewis v. Great Western Railw. Company, 5 H. & N. 867, upon the point of the agent making the delivery of goods, being bound by the conditions inserted in the memorandum made and signed at the time, when under the head "Conditions" was written: "No claim for deficiency, damage, or detention will be allowed, unless made within three days after the delivery of the goods; nor for loss, unless made within seven days of the time they should have been delivered"; and the plaintiff testified "he was told to sign the paper and did so; he might have seen the word 'Conditions,' but did not read them, and was not told what they were "; and one of the packages was not delivered, and was not called for within seven days of the time it should have been delivered: it was held, there was nothing to rebut the presumption, arising from the signature of the paper by the plaintiff, that he understood that the contract was subject to the conditions; and they were considered just and reasonable within the English statute.

16. It becomes a very important practical question, To what extent the first express carrier, upon a long line of transportation, is responsible. We see no reason why the responsibility of this class of carriers should not be the same, as to long lines of transportation, as that of other carriers. The profession all agree that there is a distinction in this respect between the rule of responsibility imposed upon carriers in America, on long lines of transportation, and that imposed in England. In the latter country, by a long and uniform course of decision, based upon the leading case of Muschamp v. Lancaster and Preston Railw. Company, 8 M. & W. 421, it is clearly established that the carrier, by accepting a package of goods, marked for any distant point, assumes the responsibility of its safe arrival and timely delivery at its ultimate destination. The rule has been carried so far in England that it has been recently held in the House of Lords, Bristol and Exeter Railw. Company v. Collins, 7 House of Lords Cas. 194, s. c. 5 Jur. N. S. 1367, that the contract in such cases is so exclusively with the first company, that the owner of the goods can maintain no action against any of the subsequent companies upon the line, even by showing that the loss or injury occurred through their default. And the same rule is there applied to the baggage of passengers ticketed over an extended line of travel, consisting of different companies; the first company is alone responsible to the owner, there being no priority between him and the others. Mytton v. Midland Railw. Co., 4 H. & N. 615.

17. But the rule of responsibility in all these cases is very different in the

American courts. We do not consider that there is any such want of privity as to the subsequent companies, that the owner of the goods or baggage may not maintain an action against any of the subsequent carriers upon the line, by showing that the loss occurred there. It has been decided that the first company, where there is a business connection through the route, is liable for the whole route. Cary v. Cleveland and Toledo Railw. Company, 29 Barb. 35. And it has also been held, where the different companies constitute a continuous line, and run their cars over the whole route without change, selling through tickets and checking baggage through, that an action for loss of baggage, anywhere upon the route, will lie against either company. Hart v. Rensselaer and Sar. Railw. Company, 4 Selden, 37.

18. We have already intimated that, in this country, the first company upon a continuous line of transportation, where there is no business connection between the different companies constituting the route, assumes no responsibility beyond its own line, except for safe delivery to the next carrier upon the route. Redfield on Railways, § 162, pl. 2, and numerous cases cited in note 6. The first carrier may, by special contract with the owner, assume the entire responsibility of the safe delivery at the ultimate destination. Id. n. 7, and cases cited. And where there is a business connection between the different companies, extending through the entire route, the first company will be regarded as having assumed the responsibility of the entire route, unless there is something in the contract or the circumstances indicating a different purpose. Redfield on Railways, § 162, and cases cited, pl. 4, n. 8, 9.

19. The same rules of construction and of responsibility, so far as we know, have in this country been applied to express companies. They have generally been held responsible for safe transportation to the end of their lines, and careful delivery to the next company on the route, with proper directions to each successive carrier; and it was also considered that the successive carriers were only responsible for transportation across their own line, and for safe delivery to the next carrier, according to the usual and most direct line of communication with the ultimate point of destination. Thus where an express company at Detroit received a package addressed to New York city, which came into the hands of the defendants at Suspension Bridge, who carried it to Albany, and there delivered it to the Hudson River Railway, common carriers between that city and New York, giving proper instructions to that company, it was held that the defendants were thereby exonerated from further responsibility. Hempstead v. New York Central Railw. Company, 28 Barb. 485. Where special instructions, in regard to the mode of delivery, are given by the consignor, they must be followed, unless, as we have seen, they are modified by the consignee, and in either case the carrier must follow the latest instructions. Michigan S. & N. Indiana Railw. Company v. Day, 20 Illinois R. 375. In the English courts it makes no difference as to inferring a contract with the first carrier for the entire route, that it consist partly of steamboat transportation and partly by land where there is no railway; in all cases a presumptive responsibility for the entire route attaches to the first carrier. Wilby v. The West Cornwall Railw. Company, 2 H. & N. 702.