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EXPRESS BUSINESS.— Engaging as an express recognized as, and called the approaches to it in messenger is not doing an

express business."

several decisions. Commonwealth v. Deerfield, 6 Eastern Express Co. v. Meserve, 60 N. H. 198. Allen, 449, 455; Titcomb v. Fitchburg R., 12 id. 254,

Book.—The face of a barometer is not a "book." 259; Rouse v. Somerville, 130 Mass. 363. This was
In Davis v. Committi, a recent English case, the the meaning in the statute of 1846, chapter 271, sec-
question arose whether the printed face of a 'fore- tion 1, and when taken with the context is the
cast barometer was a "book” within the definition meaning in Public Statutes, chapter 112, section
of the Copyright Act, 1842, section 2, which enacts 128. As the bridge in the present case was not a
that a book shall be construed to mean and include, part of the high way, but was a part of the railroad
amongst other things, "every sheet of letter-press track, and crossed the highway over the level
map, chart or plan separately published.” Chitty, thereof, the approaches to it did not include any
J., said that the face of the barometer was but a part of the highway, and the town was not relieved
necessary part of the instrument, and if separated of its liability to keep in repair that portion of the
therefrom, was not intended to have, and in fact | highway where the accident happened.”
had no use or meaning whatever. Regarded as a WATER-COURSE.--"To constitute a water-course
card apart from the barometer, it not only foretold the size of the stream is immaterial. It must be a
nothing, but told nothing. By reading the printed stream in fact, as distinguished from mere surface
matter on the face alone no intelligible proposition drainage occasioned by freshets or other extraordi-
could be arrived at, and to make it speak it must nary causes, but the flow of water need not be con-
be read in connection with the instrument, and not stant. Shields v. Arndt, 4 N. J. Eq. 234; Gillett v.
so much in connection with the instrument's hands Johnson, 30 Conn. 180; Bassett v. Manufacturing Co.,
or indices as with the mercury column, the manipu- 43 N. H. 569; Dudden v. Guardians, etc., 38 Eng.
lation of the hands depending on the height of the Law & Eq. 526. In Shields v. Arndt it is said:
mercury. As a matter of fact, the face had never There must be water as well as land, and it must
been separately published, or in any manner used be a stream usually flowing in a particular direction.
as a separate publication.' By itself it was not a It need not flow continually, as many streams in
chart in the sense of being a weather chart. He this country are at times dry.' When water has a
also held that it was not a sheet of letter-press sep- definite source as a spring, and takes a definite
arately publislied, and therefore not a book within channel, it is a water-course, and no person through
the meaning of the act. In confirmation of that whose land it flows has a right to divert it from its
view regard might be had to section 6 of the act, natural channel, so as to cause injury to another
requiring a copy of the whole of every book to be land owner by the diversion. Dudden v. Guard-
sent to the British Museum. If the face was a ians, etc., 1 Hurl, & N. 630; Gillett v. Johnson, 30
book, a delivery of the face would be a compliance Conn, 180; Luther v. Winnisimmet, 9 Cush. 171;
with the act, although the face by itself was with- Kauffman v. Griesemer, 26 Penn. St. 407.” Pyle v.
out use or meaning. The necessity of delivering Richards, Nebraska Supreme Court, Feb., 1885.
the barometer as the whole book reduced the posi-
tion to an absurdity. Furthermore, it would be
strange if an inventor of a barometer could obtain


CONSIDERED. a patent and protect his invention for fourteen years, and at the same time, for all practical pur- N the story of Ali Baba and tbe Forty Thieves, it poses, secure a monopoly for at least forty-two will be remembered that one of the robbers underyears by registering the face under the Copyright | took to identify the house to which he wished to lead Act, 1842. The face of the barometer was not his comrades, by setting a chalk-mark upon the door. within the act.

And that the scheme failed because Morgiana placed a APPROACH TO A BRIDGE.— In Whitcher v. City of street. Now suppose the chalk-mark had signified to

like mark upon the doors of all the houses in the same Somerville, Massachusetts Supreme Judicial Court, the thief that the house was (say) the twenty-fourth Jan., 1885, it was held that that portion of a street one on the right from the corner. Iu vain would lowered by a railroad corporation for the purpose Morgiana have multiplied the mark, the meaning of having its railroad pass over it upon a bridge,

would have remained single; and unconfounded by its does not constitute an approach” to said bridge.

recurrence throughout the street the thief would have

pitched at once upon the house which he originally The court said: “The approaches to a bridge are had selected. the ways at the ends of it which are a part of the The story and the supposition will serve to introbridge itself, or are appendages to it. This was duce at once the thought of a classification and a natquite plain under the statute of 1846, chapter 271,

ural history of signs. section 1. By the common law the duty to keep a

The natural progress is from things to thoughts,

from images and representations to mere identifying bridge in repair carries with it the duty to keep in

instrumentalities. That is, significants by evolution repair, as a part of the bridge, the highway at each become (mere) signs. end of it, for a space of three hundred feet. King We will take the word "sign " and consider how it, v. West Riding of York, 7 East, 588; same

and the fact it means, with various accessory words House of Lords, 5 Taunt. 284. This limit of space

and circumstances, more or less closely connected, re

veal this progress. has not been adopted in this Commonwealth, but

In common idea to “sigu” a note is to subscribe it, the highways at the ends of the bridge have been to write one's name underneath. But in law it is not

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case in


80; the name anywhere is a "signing,” that is, a mak- that the progress is from things to thoughts, from picing out who it is that is responsible. And this name tures, images, likenesses of the tangible and visible; marks out who, not because it means the man but from representative meanings; to symbols, uumeanmerely identifies him, as the chalk-mark did the door. ing marks, of some thing. Johu Smith originally meant that John who is the The word sign has now done (as Humpty Dumpty in Smith, now it is no longer a mark of his calling; as the Alice Book would say) a fair day's work; will thereJohnson originally meant the man who is the son of fore be dismissed the court. John, but no longer does. And as one, out of many We started with signing a note. Consider the word doors chalked alike and meaning nothing, can no “note" a little. Commercially this stands for a longer be identified, singled out; so Johnson (and still promise to pay, and also the paper on which the prommore John Smith) cannot, as such be individualized. ise is written. But in law the note is neither the For as the grammars say, he “is a noun of multi- paper nor the promise (in strictness); it is the evidence, tude."

memorandum, mark of the promise. Nota note, mark. Again, a printed name, ove struck by stamp, stencil, Nosco, to know; notum, the known. Nola is thus the or die, is a signature, an identifying mark, for in law known mark of a known thing, its characteristic. This the marking out need not be written. Further, not last word in turn is from the Greek charasso, to cut, even a name, nor initials, need be used; for a man may to cut á mark. Character is the cut which is deeply make his “mark.” That is, may hold the pen while a marked, so as to be remarked. And so the mental and cross is made an evidence of bis act of assent. And moral qualities of a man constitute the mark of that this cross is itself now an arbitrary unmeaning thing, man. Such is the progress from things to thoughts, from though in Darwinian pbraseology an evidence of sur- the physical to the metaphysical. Yet reversion, as it vival of a mark once religiously significant. For of may be termed, often occurs; thus commercially the old this signature of the cross pledged the faith of a note is not the memorandum of an agreement simplyChristian; now an atheist or infidel may so unques. but the writing or even the paper written; the transfer tioned sign. A curious survival this of Christianity of idea here being from thoughts to things. in the law! I quote Blackstone as evidence: "Propria

JOHN B. Wood. manu pro ignorantia literarum signum sanctæ crucis expressi et subscripsi" (with my own hand on account THE HOUSEHOLD AGENCY OF WIFE FOR HUSof my ignorance of writing I have made and drawn

BAND. underneath the sign of the holy cross; the language written for Caedwalla, a Saxou king, at the end of one PHE husband is the head of the family(1), and in reg. of his charters, 2 Bl. 305* [d] ).

ulating his household may or may not put his wife Then the seal attending the signature to a deed. The

in charge of certain departments thereof, and make "seal" is a word survival of sigillum; as a figured

her his agent in matters pertaining to their domestio scroll with the mystic L. S. inside is an ink survival

life(2); whether he has or has not made her bis agent or image of the wax. L. S., the "signs" of locum

is always, except when she relies on her agency in law sigilli, the place where the seal ought to be, but isn't.

for support(3), a mere question of fact, to be deter. The charity of legislative overrulings of the strict mined from all the circumstances of the case(4); common law allows the mystery of the scrolled (and

whether a particular act was within the scope of her scrawled) L. S., instead of the antiquated necessary agency, is a mixed question of law and fact(5). wax “capable of receiving an impression"-that is, of

I. The wife's appointment.--(a) If husband and wife being permanently marked and characterized by the

are permanently separated, and the wife has an estabdie or signet ring of the party to be bouud. Of old

lishment of her own, even if it has been given her by the seal, the impressed wax, was the one only legal him, it is hers, and there is no presumption that she mark, proof of the " execution” (doing, carrying out

may keep it at his expense(6). (b) If they are only to completion) of the “deed." And the “deed” was

temporarily separated through his absence, and she is (to be ungrammatical) the thing “did.”

apparently in charge of his establishment, there is a You see the old cominon law, when kings, noble. very strong presumption that she is his agent in the men and people were more in the way or bandling

management thereof(7), (c) If they are living together, swords than pens, and making marks in blood than in

but are boarding or have no establishment, the fact of

their cohabitation raises no presumption whatever of ink, required the mark in the wax as the sign of the

any agency of her for him(8). (d) If they are living todeed doue; and no signing in the ink way was at all gether and are keeping house, there is a presumption necessary. I give more from Blackstone as evidence; that she has charge of the domestic part thereof(9). “The Normans change the work of the scribes (which

(1) Stewart M. &. D., 88 221, 253. in England was customarily perfected by golden (2) See 1 Bish. M. & D., & 355. [illumivated] crosses and other holy marks) into im- (3) Stewart M. & D., 180. pressed wax, and reject the mode of drawing” (the

(4) Reid v. Teakle, 13 C. B.627; Ryan v. Sams, 12 Q. B. 460;

Debenham v. Mellon, L.R., 6 App. Cas. 24, 32; Clark v. Cox, crosses and marks) “used by the English," 2 Bl. 306*

32 Mich. 204, 213; Keller v. Phillips, 39 N. Y. 351. (), as trauslated.

(5) See Reneaux v. Teakle, 8 Exch. 680; Lane v. Iremonger, Now to return to the word sigillum. Notice that

13 Mees. & W. 368; Parke v. Kleeber, 37 Penn. St. 251; discus

sion in 2 Smith L. C. (404) et seq. this is the diminutive of siguum (see the first quota- (6) See Debenham v. Mellon, L. R., 6 app. Cas. 24; LR; tion from Blackstone), and so within the completed 5Q B. D. 395; Manby v. Scott, 1 Lev, 4; 2 Smith L. C. (402.)

(7) Rotch v, Miles, 2 Conn. 630, 645. circle of its bistory is “ seal” a double, and indeed a

(8) Debenham v. Mellon, L R., 6 App. Cas. 24, 33; L. R., 5 triple "little sigu.” First, it is the mark of the deed,

Q. B. D. 395. the solemn considered act done. Second, the thing

(9) Debenham v. Mellon, L. R., 5 Q. B. D., 394, 402; Clifford being used instead of ink, and the name being Latin

v. Laton, 3 Car. & P. 15, 16; Reneaux v. Teakle,'8 Exch. 680;

Phillipson v. Hayter, L. R., 6 C. P. 38, 41, 42, Ruddock v. not English, it is a mark of the want of education and Marsh, 1 Hurl. & N. 601; Emmett v. Norton, 8 Car. & P. 506, of the great influence of the Romau clergy (or clerks)

510; Freestone v. Butcher, 9 id. 843; Montague v. Benedict. 3

Barn. & C. 631, 635; Hughes v. Chadwick, 6 Ala. 651; Benjawho kuew how to write, or were supposed to know; min, 15 Conn. 347, 357; 39 Am. Dec. 384; Shelton v. Hoadley, and some of whom drew up the “scribal” portion of 15 Conn. 535; Johnston v. Pike, 14 La. Ann. 731; Furlong F. the deed. Third, its verbal parent is the very word in

Hysom, 35 Me. 332; Eames v. Sweetzer, 101 Mass. 78; Harshaw Latin from which we have the English word sign at

v. Merryman, 18 Mo. 106; Pickering, 6 'N. H. 120, 24; Tebbetts

v. Hapgood, 34 id. 420: Sterling v. Potts, 5 N. J.'L., 773; Kelall. Now signum further corresponds to the Greek ler v. Phillips, 39 N. Y. 351; Cromwell v. Benjamin. 41 Barb. ElKwv, eikon, image. So that we see the word "sign

558; Meader v. Page, 39 Vt. 306, 308; Sawyer v. Cutting, 23 id.

486, 490; Bugbee v. Blood, 48 id. 499, 501; Savage v. Davis, 18 in its own development demonstrating the principle Wis. 608, 613.

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The presumptions of her agency in cases (b) and (d) | authority he may ratify her acts(31), and is therefore
are rebuttable (10), and the husband may relieve him- liable for whatever things he permits her to receive in
self of the liability by showing that his domestic ar- his house(32), unless be supposes she has paid for
rangements excluded any such agency on her part(11), them(33). The extent of her authority naturally de-
or that he probibited her from acting on his ac- peuds largely on their station in life(34).
count(12), and it makes no difference whether the third

party was aware of this or pot(13). But if it appears that BALTIMORE, M. D.
he in some way allowed her to seem to have charge of
his house, or recognized her acts as his agent
therein(14), the mere fact that he privately forbade CARRIER-LIMITATION OF LIABILITY-NEGLI.
her to act for him will not relieve him of liability(15).

And when he has once recognized her agency, although
he may revoke it at any time(16), such revocation will

SUPREME COURT OF THE UNITED STATES, have no effect as to persons with whom he has allowed

NOVEMBER 24, 1884.
her to deal as his agent, unless they are specially noti.
fied thereof(17). In fine, her agenoy is in kind-though

not so limited in scope(18)-the same as that of a serv-
aut or steward placed in charge of a household(19), and Where a contract of carriage, signed by the shipper, is fairly
therefore it makes no difference whether the woman made with a railroad company, agreeing on a valuation
is his legal wife or not(20). But if all the credit is of the property carried, with the rate of freight based on
given to berhe is not liable; she must bave been dealt the condition that the carrier assumes liability only to the
with as agent(21).

extent of the agreed valuation, even in case of loss or II. The scope of the wife's authority. When the wife damage by the negligence of the carrier, the contract will is her husband's agent in managing his household, her be upheld as a proper and lawful mode of securing a due authority covers all such matters as wives in such posi- proportion between the amount for which the carrier may tions usually attend to(22), and includes the right to do be responsible and the freight he receives, and of protectwhatever is necessary, proper or usual to effectuate the ing himself against extravagant and fanciful valuapurposes of her agency(23). Thus: she may deal on his tion. credit with butcher, baker, etc.(24); she may give rea- N error to the of the United States

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ties(26); she may employ necessary servauts(27); and states the facts.
may in fact procure on credit all such things as belong
to the class “necessaries "(28), whether they are really

Melville C. Day and G. M. Stewart, for plaintiff in

error. needed or not(29). But she cannot thus procure extraordinary things(30), although if she thus exceeds her E. W. Pattison and Newton Crane, for defendant in

(10) Debenham v. Mellon, L. R., 6 App. Cas. 24, 32, 37; 50 L. J., Q. B. D. 155; L. R., 5 Q. B. D. 394, 402; 49 L. J., Q. B. D.

BLATCHFORD, J. Lawrence Hart brought this suit 497; Clark v. Cox, 32 Mich. 204, 213; supra n. 9.

in a State court in Missouri against the Pennsylvania (11) Bee Barr v. Armstrong, 58 Mo, 577, 581. Giving her an

Railroad Company, to recover damages from it, as a allowance is not alone sufficient. Ruddock v. Marsh, 1 Hurl.

common carrier, for the breach of a contract to trans& N. 601, 604; Holt v. Brien, v. Barn. & A. 352.

port, from Jersey City to St. Louis, five horses and (12) Morgan v. Chetwynd, 4 Fost. & F. 457, 458, 459.

other property. The petition alleges tbat, by the neg(13) Debenham v. Mellon, L. R., 6 App. Cas. 24, 32; L. R., 5 ligence of the defendant, oue of the horses was killed Q. B. D. 394, 402; Jolly v. Rees, 15 C. B. (N. S.) 628.

and the others were injured, and the other property (14) Waithman v. Wakefield, Camp. 120, 121; Rennick v. was destroyed, and claims damages to the amount of Ficklin, 5 B. Mon. 166.

$19,800. After an answer and a reply, the plaintiff re(15) Debenham v. Mellon, L. R., 6 App. Cas. 24, 33.

moved the suit into the Circuit Court of the United (16) Wallace v. Beddick, 22 Week. Rep. i; Debenham v. Mel- States for the Eastern District of Missouri, where it lon, L. R., 5 Q. B. D. 394, 403; Daubney y. Hughes, 60 N. Y. was tried by a jury, who found a verdict of $1,200 187, 191.

for the plaintiff; aud after a judgment accordingly, (17) Cany v. Patton, 2 Ashmead, 140.

the plaintiff has brought this writ of error. (18) Benjamin, 15 Conn. 347, 357; 39 Am. Dec. 384; infra nn. The property was transported under a bill of lading ig22, 23

sued by the defendant to the plaintiff, and signed by
(19) Debenham v. Mellon, L. R., 5 Q. B. D. 394, 399; L. R., him, and reading as follows:
6 App. Cas. 24, 33.

(20) Blades v. Free, 9 Barn. & C. 167, 171; Robinson v. Nabon,
1 Camp. 245; Watson v, Threlkeld, 2 Esp. 637.

Form No. 39, N. J.

“Limited Liability Live-Stock Contract for United (22) Ruddock v. Marsh, 1 Hurl. & N. 601, 604; Emmett v.

Railroads of New Jersey Division. (No. 206.) Norton, 8 Car. & P. 506, 510; Phillipson v. Hayter, L. R., 6 C. “JERSEY CITY STATION, P. R. R.,

187P. 38, 42; Montague v. Benedict, 3 Barn. & C. 631, 635; Picker

“Lawrence Hart delivered into safe and suitable ing, 6 N. H. 120, 124; Bugbee v. Blood, 48 V1. 499, 501; Meader

cars of the Pennsylvania Railroad Company, numbered v. Page, 39 id. 306, 308; Sawyer v. Cutting, 23 id. 486, 490; Sav

M. L. 224, for transportation from Jersey City to St. age v. Davis, 18 Wis. 608, 613.

Louis, Mo., live-stock, of the kind as follows, one (1) (23) Benjamin, 15 Conn. 347, 356, 358; 39 Am. Dec. 384.

car, five horses, shipper's count; which bas been re(24) Debenham v. Mellon, L. R., 6 App. Cas. 24, 36.

ceived by said company, for themselves and on behalt (25) Spencer v. Stores, 38 Vt. 156, 158. (28) Humes v. Taber, 1 R. I. 464, 473.

(31) Mickelberry v. Harvey; 58 Ind. 523, 525. (27) White v. Cuyler, 6 Term, 170; Condon v. Callahan, 9

(32) Gilmer v. Andrus, 28 Vt. 241, 242. See Waithman v. Abb. (N. C.) 407, 411; compare Rotch v. Miles, 2 Conn. 638, Wakefield, 1 Camp. 120, 121; Atkins v. Curwood, 7 Car. & P.

756, 760. (28) Stewart M. & D., $ 180.

(33) Morgan v. Chetwynd, 4 Fost. & F. 451, 459. (29) Ruddock v. Marsh, 1 Hurl. & N. 601, 604.

(34) Keller v. Phillips, 39 N. Y. 351. (30) Freestone v. Butcher, 9 Car. & P. 643.

*Affirming 7 Fed. Rep. 630; S. C., 5 Sup. Ct. Rep. 151.

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of connecting carriers, for transportation, upon the dered comparatively worthless in consequence of their following terms and conditions, which are admitted injuries. The defendant objected to this testimony, and accepted by me as just and reasonable:

on the ground that it was not competent for the plaintFirst. To pay the freight thereon to said company iff to prove any damage or loss in excess of that set out at the rate of ninety-four (94) cents per one bundred in the bill of lading. The court sustained the objec. pounds (company's weight), and all back freight and tion and the plaintiff excepted. It appeared on the charges paid by them, on the condition that the car- trial that the horses were race-horses, and that they rier assumes a liability on the stock to the extent of and the other property were all in one car. It was adthe following agreed valuation: If horses or mules, mitted by the defendant that the damages sustaiued not exceeding two hundred dollars each; if cattle or by the plaintiff were equal to the full amount expressed cows, not exceeding seventy-five dollars each; if fat in the bill of lading. The court charged the jury as hogs or fat calves, not exceeding fifteen dollars each; follows: “It is competent for a shipper, by entering if sheep, lambs, stock hogs, or stock calves, not exceed- into a written contract, to stipulate the value of his ing five dollars each; if a chartered car, on the stock property, and to limit the amount of his roeovery in and contents in same, twelve hundred dollars for the case it is lost. This is the plain agreement that the car-load. But no carrier shall be liable for the acts of recovery shall not exceed the sum of $200 each for the the animals themselves, or to each other, such as bit- horses, or $1,200 for a car-load. It is admitted here by ing, kicking, goring, and smothering, nor for loss or counsel for the defendant, under this charge, that the damage arising from condition of the animals them- plaintiff is entitled to recover a verdict for $1,200, and selves, which risks, being beyond the control of the also under the charge of the court the plaintiff agrees company, are hereby assumed by the owner, and the that that is all. It is simply your duty to find a vercarrier released therefrom.

dict for that amount.” The plaintiff excepted to this “Second. Upon the arrival of the cars or boats con- charge. The errors assigned are thatįthe court erred in taiping paid stock at point of destination, the shipper, refusing to permit the plaintiff to show the actual owner, or consignee shall forth with pay said freights damages he had sustained, and in so charging the jury and cbarges, and receive said stook therein, and un- as to restrict their verdict to $1,200. load the same therefrom; and if from any cause, he or It is contended for the plaintiff that the bill of ladthey shall fail or refuse to pay, receive, or unload, as ing does not purport to limit the liability of the deaforesaid, then said company or other carrier, as the fendant to the amounts stated in it, in the event of agent of such shipper, owner, or consignee, may there- loss through the negligence of the defendant. But we upon have them put and provided for in some suitable are of opinion that the contract is not susceptible of place, at the cost and risk of such shipper, owner, or that construction. The defendant receives the propconsignee, and at any time or times thereafter may erty for transportation on the terms and conditions sell the same, or any number of them, at public or pri- expressed, which the plaintiff accepts

as just and vate sale, with or without notice, as said agent may reasonable.” The first paragraph of the contract is deem necessary or expedient, and apply the proceeds that the plaintiff is to pay the rate of freight expressed arising therefrom, or BO much thereof as may be “on the condition that the carrier assumes a liability needed, to the payment of such freight and charges, on the stock to the extent of the following agreed valand other necessary and proper costs and expen- uation: If horses or mules, not exceeding $200 each;

* * * if a chartered car, on the stock and contents Third. When necessary for said stook to be trans- in same, $1,200 for the car-load.” Then follow, in the ported over the line or lines of any other carrier or first paragraph, these words: “But no carrier shall be carriers to the point of destination, delivery of the liable for the acts of the animals themselves, or to said stock may be made to such other carrier or car- each other, such as biting, kicking, goring, or smotherriers for transportation, upon such terms and condi- ing, nor for loss or damage arising from condition of tions as the carrier may be willing to accept; provided the animals themselves, which risks, being beyond the that the terms and conditions of this bill of lading control of the company, are hereby assumed by the shall inure to such carrier or carriers, unless they owner, and the carrier released therefrom." This shall otherwise stipulate; but in no event shall one statement of the fact that the risks from the acts and carrier be liable for the negligence of another.

condition of the horses are risks beyond the control of Fourth. All live-stock transported under this con- the defendant, and are therefore assumed by the tract shall be subject to a lien, and may be retained plaintiff, shows if more were needed than the other and sold for all freight or charges due for transporta- language of the contract, that the risks and liability tion on other live-stock or property transported for the assumed by the defendant in the remainder of the same owner, shipper, or cousignee.

same paragraph are those not beyond but within the Fifth. This company's liability is limited to the control of the defendant, and therefore apply to logs transportation of said animals, and shall not begin through the negligence of the defendant. It must be until they shall be loaded on board the boats or cars of presumed from the terms of the bill of lading, and the company. The owner of said animals, or some without any evidence on the subject, and especially in person appointed by him, shall go with, and take all the absence of any evidence to the contrary, that as requisite care of, the said animals during their trans- the rate of freight expressed is stated to be on the conportation and delivery, and any omission to comply dition that the defendant assumes a liability to the herewith shall be at the owner's risk. Witness my extent of the agreed valuation named, the rate of hand and seal, this twentieth day of October, 1879. freight is graduated by the valuation. Especially is

LAWRENCE HART, Shipper. (L.S.] this so, as the bill of lading is what its heading states “Attest:

it to be," a limited liability live-stock contract," and "E. BUTTER.

is confined to live-stock. Although the horses, belng * W. J. CHARMERS, Company's Agent."

race-horses, may, aside from the bill of lading, have

been of greater real value than that specified in it, At the trial the plaintiff put in evidence the bill of whatever passed between the parties before the bill lading, and gave testimony to prove the alleged neg- of lading was signed was merged in the valuation it ligence, and how the loss and injury occurred. He fixed; and it is not asserted that the plaintiff named then offered to show that the actual value of the horse any value, greater or less, otherwise than as he as • killed was $15,000; that the other horses were worth sented to the value named in the bill of lading by from $3,000 to $3,500 each; and that they were ren- signing it. The presumption is conclusive that if the


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liability had been assumed on a valuation as great as In Express Co. v. Caldwell, 21 Wall. 264, this court that now alleged, a higher rate of freight would have held that an agreement made by an express company, been charged. The rate of freight is indissolubly a common carrier in the habit of carrying small pack. bound up with the valuation. If the rate of freight ages, that it should not be held liable for any loss or named was the ouly one offered by the defendant, it damage to a package delivered to it, unless claim was because it was a rate measured by the valuation should be made therefor within ninety days from its expressed. If the valuation was fixed at that ex

delivery to the company, was au agreement which the pressed, when the real value was larger, it was because

company could rightfully make. The court said: “It the rate of freight uamed was measured by the low is now the settled law that the responsibility of a comvaluation. The plaintiff cannot claim a higher valua- mon carrier may be limited by an express agreement tion on the agreed rate of freight.

made with his employer at the time of his accepting It is further contended by the plaintiff that the de

goods for trausportation, provided the limitatiou be fendant was forbidden, by public policy, to fix a limit such as the law can recoguize as reasonable, and not for its liability for a loss by negligence, at an amount iuconsistent with sound public policy," It was held less than the actual loss by such negligence. As a that the stipulation as to the time of making a claim minor proposition, a distinction is sought to be drawu was reasonable and intriusically just, and could not between a case where a shipper, on requirement, states be regarded as a stipulation for exemption from rethe value of the property, and a rate of freight is fixed sponsibility for negligence, because it did not relieve accordingly, and the present case. It is said that the carrier from any obligation to exercise diligence, while in the former case the shipper may be confined fidelity, and care. to the value he so fixed, in the event of a loss by peg- On the other hand, in Bank of Kentucky V. Adams · ligence, the same rule does not apply to a case where Express Co., 93 U. 8. 174, it was held that a stipulation the valuatiou inserted in the contract is not a valua- by an express company that it should not be liable for tion previously named by the shipper. But we see 10 loss by fire could not be reasonably construed as exsound reason for this distinction. The valuation empting it from liability from loss by fire occurring wamed was the "agreed valuation," the one on which through the negligence of a railroad company which it the minds of the parties met, however it came to be had employed as a carrier. To the views announced fixed, and the rate of freight was based on that valua- in these cases we adhere; but there is not in them any tion, and was fixed on condition that such was the val- adjudication on the particular question now before us. uation, and that the liability should go to that extent It may however be disposed of on principles which are and no further. We are therefore brought back to well established, and which do not conflict with any the main question. It is the law of this court that a of the rulings of this court. As a general rule, and in common carrier may, by special contract, limit his the absence of fraud or imposition, a common carrier common-law liability; but that he cannot stipulate for is answerable for the loss of a package of goods, though exemptiou from the consequences of his own negli- he is ignorant of its contents, and though its coutents geuce or that of his servants. New Jersey Steam Nav. Co. are ever so valuable, if he does not make a special acv. Merchants' Bank, 6 How. 344; York Co.v. Central R. ceptance. This is reasonable, because he can always R., 3 Wall. 107; Railroad Co. v. Lockwood, 17 id. 357; guard himself by a special acceptance, or by insisting Express Co. v. Caldwelt, 21 id. 264; Railroad Co. v. on being informed of the nature aud value of the artiPratt, 22 id. 123; Bank of Kentucky V. Adams Express cles before receiving them. If the shipper is guilty of Co., 93 U. S. 174; Railway Co. v. Stevens, 95 id. 655. fraud or imposition, by misrepresentiug the nature or

In York Co. v. Central R. R., 3 Wall. 107, a contract value of the articles, he destroys his claim to indemwas upheld exemptiug a carrier from liability for loss nity, because he has attempted to deprive the carrier by fire, the fire not haviug ocourred through any want of the right to be compensated in proportion to the of due care on his part. The court said that a com- value of the articles and the cousequent risk assumed, mon carrier may

' prescribe regulations to protect and what he has done has tended to lessen the vigilhimself against imposition and fraud, and fix a rate of auce the carrier would otherwise have bestowed. 2 charges proportionate to the maguitude of the risks he Kent Comm. 603, and cases cited; Relf v. Rapp, 3 may have to encounter."

Watts & S. 21; Dunlap v. Steamboat Co., 98 Mass. 371; In Railroad Co. v. Lockwood, 17 Wall. 357, the fol- Railroad Co. v. Fraloff, 100 U. S. 24. This qualificalowing propositions were laid dowu by this court: (1) tion of the liability of the carrier is reasonable, and is A common carrier cannot lawfully stipulate for ex- as important as the rule which it qualifies. There is emption from responsibility when such exemption no justice in allowing the shipper to be paid a large is uot just and reasonable in the eye of the law. (2) value for an article which he has induced the carrier It is not just and reasonable in the eye of the law for to take at a low rate of freight on the assertion and a common carrier to stipulate for exemption from agreement that its value is a less sum than that claimed responsibility for the negligence of himself or his ser- after a loss. It is just to hold the shipper to his agreevants. (3) These rules apply both to carriers of goods ment, fairly made, as to value, even where the loss or and to carriers of passengers for hire, and with special | injury has occurred through the negligence of the carforce to the latter. The basis of the decision was that rier. The etfect of the agreement is to cheapen the the exemptiou was to bave applied to it the test of its freight and secure the carriage, if there is no loss; aud justuess and reasonable character. It was said that the effect of disregarding the agreement, after a loss, the contracts of the carrier “must rest upon their is to expose the carrier to a greater risk than the parties fairness and reasonableness," and that it was just and intended he should assume. The agreement as to reasonable that carriers should not be responsible for value in this case stands as if the carrier had asked losses happening by sheer accident, or chargeable for the value of the horses, and had been told by the valuable articles liable to be damaged, unless apprised plaintiff the sum inserted in the contract. of their character or value. That case was one of a

The limitation as to value has no tendency to exempt drover traveling on a stock train on a railroad to look from liability for negligence. It does not induce want after his cattle, and having a free pass for that purpose,

of care. It exacts from the carrier the measure of care who had signed an agreement taking all risk of injury due to the value agreed on. The carrier is bound to to his cattle and of personal injury to himself, and who respond in that value for negligence. The compensawas injured by the negligence of the railroad company

tion for carriage is based on that value. The shipper is estopped from saying that the value is greater. The

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