said alleged service was also made, resides, and has his office at Subscribed and sown to by A. J. Poppleton, before me, Octo- In the next sentence the phraseology changes: In case of failure or refusal of the Union Pacific railroad, or either of said branches to comply with the requirements of this act, and the act to which this is amendatory, an action against them may be brought in the District or Circuit Court of the United States, in the territory, district or circuit in which the road or any portion of it may be situated, for damages on account of such failure or refusal. The action must be brought in the court of some district in which some portion of the road of the defendants is situated. Now, in this proceeding, it is alleged that a portion of the road DILLON, Circuit Judge, on overruling these exceptions, in orally which this company refuses to operate as one continuous line, is delivering the judgment of the court, in substance said: This is a proceeding instituted by certain persons residing in Council Bluffs, in this state, who claim that they are aggrieved by reason of an alleged failure of the Union Pacific Railroad Company to operate its road according to law. The 15th section of the act of 1864, which was an act amending the original charter of this company-giving it additional subsidies and additional grants of land-by means of which in reality the road was subsequently constructed, provided that it should be the duty of the company to operate its road, so far as the government and the public were cencerned, as one continuous line. In this case it is alleged that the company refuses to operate their road as a continuous line; that in fact they operate it as one continuous line as far only as the city of Omaha, and there break its continuity by the agency of a distinct and separate transfer from that point to the Iowa side. This is the complaint which the relators make, and which they allege to be in violation of the terms of the charter of the company and its duty to the public. 2 Dillon Cir. Court Rep., 527. situated within the geographical limits of the state of Iowa. On this motion we must take this to be true. The act of 1874 provides, that if process in any suit is served upon any agent of the defendant found within the territory, district, or circuit in which such suit may be brought, such service shall be held by the court to be good and sufficient. In this case the alternative writ of mandamus was served upon the president and the general superinpendent of the company at Council Bluffs, in this state, and the question is, whether this is a sufficient service to give this court jurisdiction, assuming that some portion of the road of the defendant is in this district, and assuming that the road is not operated as required by law. It is of course to be regretted that the phraseology of the act is not so clear as to admit of no controversy; and yet, when we consider that it is our duty to carry out the intention of Congress, so far as we can learn it, it does seem to us that it admits of very little doubt that this is, upon the assumptions above mentioned, a proper circuit conrt. The writ of mandamus may go to the corporation, to the corporate body and command it to perform its duty (granting that any part of the road is in this district), and if this writ, thus command president, or upon any officer who may be indicted and criminally punished, if he fails to do his duty in this respect, then it seems to us the court, has jurisdiction over the company and its officers, by mandamus, to compel the performance of this duty. This writ may, perhaps, run also under the act of 1874, to the president of the company:-"You are hereby commanded to operate the road as one continuous line." In 1873 Congress passed an act in these words: "The proper Circuit Court of the United States shall have jurisdiction to hearing this duty, is served upon the chief officer of the corporation, its and determine all cases of mandamus to compel the said Union Pacific Railroad Company to operate its road as required by law." This was an act which was indispensable in order to give the federal court original jurisdiction in mandamus, and was passed for that purpose. 2 Dillon, 527. This proceeding heretofore came before us on two questions. The one was, "Whether private persons could move for the writ; that is, could institute these proceedings to compel the road to perform its public duty, or whether Under this act, this is a duty which he can and should perform. He the proceeding must not be instituted by the attorney-general." can be criminally punished if he does not perform it, and it is no We have decided at the last term, that the writ was well moved; protection to him that the board of directors has ordered him to do that if private persons could show that they were interested in the something else. The writ of mandamus may be served upon him, operation of the road, they had a right to come into court under this and he is obliged to respond to it, whether it be regarded as a proact and call the company to account for failing to perform its pub-ceeding against him as an officer, or whether it be regarded as lic duty, to their injury, and thereupon award the alternative writ. On the other question, whether the Circuit Court of the District of Iowa was the "proper circuit court" before which to bring this proceeding, we gave no opinion. The act of June, 1874, makes an addition to the 15th section of the act of July, 1864, and provides that there shall be added to it the following words: 'Any officer or agent of the company who is authorized to construct the aforesaid road, or of any company engaged in operating either of said roads, who shall refuse to operate and use the road or telegraph lines under his control or which he is engaged in operating, for purposes of communication, travel and transportation, so far as the public and the government are concerned, as one continuous line, and without discrimination of any kind, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined and imprisoned. This act makes it the personal duty of the officers of the road to operate it as one continuous line. Now, if it can be shown that the president of the road is not operating it as a continuous line, within the meaning of this act of Congress, then he is guilty and may be punished, and we do not think for the violation of the act in this respect he can be protected by any resolution of the board of diThe law says: "You shall operate this road on one con tinuous line," and enjoins this duty upon the officers of the road. rectors. against the corporation. The argument is this: The act of 1874 enjoins the duty to operate the road as one continuous line, upon the officers engaged in operating the road; if they refuse to do so they are made indict able. The duty to be performed by them is one which rests upon the officers as well as the corporation; otherwise Congress would not have made it criminal for the officers to refuse to discharge it. It is their duty to obey the law; if they fail they may be proceeded against criminally, and the public duty may be enforced by mandamus, and this writ may be directed to the corporation and served as required by the act of June 20, 1874, or perhaps to the president or officers who are made subject to indictment under that act, and served upon them if found within the district. Whether any portion of the road of the company is within this district, and whether the transfer between Omaha and Council Bluffs, by means of the "Omaha Bridge Transfer," which is the subject of the relators' complaint, is in violation of the duty of the company or its officers, as enjoined by law, are questions which are not passed upon on the present motion. And again, considering that the original charter of the company. as well as the act of March 3, 1873, provided no mode of service, and that the act of 1874 was designed to enforce the duty enjoined by the 15th section of the act of 1864, all these acts are to be construed as in pari materia, and thus regarded, any proceeding or suit to enforce the duty enjoined by the 15th section, may be instituted in the proper court, and the proper court, as prescribed by the act of 1874, is one in the district in which some part of the company's road is situated, and in any such proceeding or suit the process may be served upon the company's agents found in the district; and in this proceeding by mandamus, our judgment is, that service of the writ upon the president or any officer whose duty it is to see that the road is operated as required by law, is sufficient. Exceptions to service of alternative writ overruled. In an action against a railway company for damages for the non-delivery of goods entrusted to it as a carrier, where the defence is that the damage occurred through an extraordinary and unprecedented flood, it is competent to prove, that at the time and place of the flood, a portion of the track of another railway company near by, was unoccupied and not overflowed, and that the defendants' cars could have been transferred to said track, but that the use of said track was not tendered to the defendants by the company owning it, nor was its use requested by the defendants. If the transfer to the other track was fairly within their power in the use of such diligence, consistent with the surrounding circumstances and duties, and the same could have been obtained without trespassing on the rights of the other company, but by their consent, then it would have been the duty of the defendants to have so moved the car in which the goods in question were, and thus saved them from damage. And whether this could have been done was a question of fact for the jury. FREEMAN, J., delivered the opinion of the court. of The plaintiff alleges the delivery of nineteen hundred yards linen to the defendant, as common carrier, to be safely carried from Chattanooga, Tennessee, to Louisville, Ky., and then delivered by the defendant to L. G. Henry & Co., on account of plaintiff, and avers a failure so to deliver, and damages as a consequence to the amount of two thousand dollars. The defendant pleaded not guilty, and gave notice that on the trial of the cause it would insist in defence, that the grievance complained of resulted from an extraordinary rise in the Tennessee river. not to show that others lost or saved their goods in Chattanooga by the flood, but to show that the defendants, by the precaution of moving the threatened car on to another road, conveniently situated, might have saved the goods from damage by the flood. The question is whether, in this view of the case, the evidence was admissible, and whether, if such was the fact, it was the duty of the company to so remove the car. It is insisted by defendant, that no such duty was imposed; that this would have been to require an extraordinary amount of diligence on the part of the railroad, not imposed by law. The case of Empire Transportation Co. v. Wallace, 68 Penn. St. 302, is cited in support of this view of the case. The rule is there correctly laid down by Judge Sharswood, in reference to the duty of the carrier to transport the goods by the usual route, and within a reasonable time, when no time is specified in the contract. He adds: "He must use reasonable expedition, but is not bound to extraordinary exertions, or to incur expenses in order to surmount obstacles not caused by his own default, but by the weather or other act of Providence. Redf. on Carriers, 210, 220. This was an ac-tion for failure to carry oil shipped from Pennsylvania to Boston, by way of Philadelphia. The usual route was by water from the latter place, and defendants had the option to ship by rail or water; water communication was prevented, for the time, by ice, and it was insisted that defendants should have incurred, what at the time would have been an extraordinary expense, and shipped the oil by rail. The court held, under the above rule, that the company was not bound to ship by rail, as the court below had ruled. This ruling was correct, but that case is not the same as the one now under consideration. The question here is, whether, when the article shipped and agreed to be carried was suddenly exposed to an extraordinary peril, it was not reasonable diligence to remove it from that peril by transferring it to the convenient road above overflow, not for the purpose of transporting it to its destination by that route, but for its preservation from damage or destruction while in its possession We think the sound rule is, that if by the use of such active diligence, and of such means as would be suggested to, and within the knowledge and capacity of well informed and compe tent business men in such position, the article could have been saved, it was their duty to have used such means. If the transfer to the other track was fairly within their power, in the use of such diligence, consistent with the surrounding circumstances and duties, and the same could have been obtained without trespassing on the rights of the other company, but by their consent, then it would have been the duty of defendants to have so moved the car, and thus saved it from damage. This would have been a question of fact for the jury, under the instructions of the court. In this view of the case, we cannot say the facts shown were not competent to go to The first question presented and urged by the defendants for reversal of the judgment, is the admission of testimony of one Rags-able efforts, under the circumstances, to preserve the goods from the jury on the question, whether the defendant had used reasondale, the agent of the East T. & Georgia R. R. Company, to the effect injury. This must be so, unless we hold, that the defendant could not be required to remove the goods from their own track or cars temporarily, but might keep them there, although threatened with destruction, when such removal could, by reasonable efforts and energy, have been effected, and this simply because, by their con that cars could be transferred from defendant's road to aid East Ten nessee & Georgia road, by means of the track and switches, and that there was a portion of the track of said last road, that was not overflowed, near by, within the corporation of Chattanooga. He proved further, that a portion of this high track was not occupied at the time of the unprecedented flood which caused the damage complained of, but that said track was not tendered to the defendant, nor was its use requested by them. It is insisted this was within the principle of the case of David, decided at the September term, 1872, of this court. In that case it was held not error to exclude testimony showing that prudent business men in Chattanooga, upon the same height of ground as the railroad, lost goods by the flood. In other words, that the fact that other men lost goods, had no proper tendency to prove, or disprove, the question involved in the case, as to whether the defendants "had used the precaution and vigilance which the law imposed on them under the circumstances." This ruling was unquestionably correct, but we do not think the questions presented are the same. In this case the effort was tract, they were only bound to transport, by the usual route, to the tained, either on sound principle or authority. See Redfield on place of destination. We do not think such a rule can be fairly susCarriers, Sec. 237, 304, 358. In reference to several points of objection made in argument, and authorities referred to, we need but say, that any delay in the transportation of the goods, would clearly, on principle and authority, be excused and not create liability on the part of the company, when such delay was the result of providential causes, such as the freezing of the river, in the case from Pennsylvania, or loss of the company's bridges, in case referred to by Mr. Redfield. Sec. 304, 305. So the freshet in this case, and the falling of a rock on the road from Lookout Mountain, would have excused any delay occasioned by these causes. But then it was the duty of the company, as soon as alty prescribed in the act of Congress cannot be recovered by a might be after removal of the obstructions, to proceed in perform- creditor of the party paying the usury, as the remedy prescribed ance of their contract. This action is brought for failure to carry by the the act is only given to the party paying, or his legal represafely and deliver at all, as by the terms of their receipt they were sentative. bound to do. See Hadley v. Clarke, 8 Term Reports, 259; cited, Redfield on Carriers, Note I, to p. 221. The temporary obstruction does not avoid the contract-only suspends the execution of it. Angell on Carriers, 289. Without examining in detail all the questions suggested in argument, after a critical examination of the charge of his honor, we think it laid down the rules of law, applicable to the questions in volved, correctly. As to whether the evidence sustains the verdict, we have but to say, that the question was fairly submitted to the jury on the facts, and we see no cause to disturb it. AFFIRM THE JUDGMENT. Remedy in State Court against National Bank to E. STEADMAN et al. v. E. F. REDFIELD & CO. AND THE Supreme Court of Tennessee, Knoxville, September Term, 1874. Hon. A. O. P. NICHOLSON, Chief Justice. It will be observed, however, that this bill does not seek to recover this penalty. The penalty fixed by the act of Congress is double the amount of the entire interest paid; this is in the nature of a fine, or punishment for the violation of the law, for it allows the party to recover more than he would otherwise be entitled to. This bill only seeks to recover back the usury, that is, the excess over the lawful interest. There is in this nothing in the nature of a penalty-it simply requires the bank to pay back the money to which it is not lawfully entitled, leaving it to retain all lawful interest. To compel the party to do simple justice, has nothing in it in the nature of punishment. This recovery is allowed by the laws of the state, if they are applicable. It may be conceded that where Congress has rightfully legislated upon a subject, a state legislature has no power to legislate in conflict therewith; and that the legislature of the state has no power to pass laws with special reference to national banks, upon the ma ters embraced in the acts of Congress. But it seems manifes: that a national bank must, in other respects, be subject to the general laws of the state where it is located; that their contracts are governed and construed by the state laws. Their acquisition and transfer of property, their right to collect their debts, and the liability to be sued for debts, are all based on state laws." Such is, in substance, the language of Justice Miller, delivering the opinion of the court, in The Bank v. Commonweath, 9 Wallace, 353. The act of Congress creating a system of national banks, fixes the rate of interest to As already said, the recovery here sought is no part of the punbe charged by the banks, and prescribes a penalty and a remedy for its recovery; and Our law makes usury the Tennessee code, section 1995, provides, that where usury has been charged, a cred-ishment prescribed by the laws of our state. ROBERT MCFARLAND, P. TURNEY, 44 JAMES W. DEADERICK, THOMAS J. FREEMAN, Judges. MCFARLAND, J., delivered the opinion of the court. itor of the party paying it may recover it back. The complainant alleges that the de- | indictable as a misdemeanor. Whether the penalty prescribed by fendant-the bank-charged its co-defendant usury, and sought to recover under the the act of Congress in question would preclude an indictment code, as a creditor of the party paying the usury, the amount usuriously received. The under our state laws for the same offence, is a question not involved court hold that the penalty and remedy prescribed by the act of Congress is not the exclusive remedy against a national bank in such case, and that a creditor is not thereby here. There is a class of cases where it has been held, that the precluded from sueing the bank for usury received of a debtor, under the state laws. same act constituted an offence against both governments, and is punishable by both. But we need not enter into a discussion of this subject; nor need we discuss what would be the effect of a recovery in a case of this character upon the right to enforce the penalty prescribed by the act of Congress. Ordinarily, a party guilty of usury could not escape punishment by refunding the usury, and so, we suppose, if he were compelled by law to refund it, the question of his punishment for the offence would not be thereby affected. Nor need we discuss what would be the effect upon the right of a creditor to recover, in a case of this character, if it should appear that the penalty prescribed by the act of Congress had been received; this is not averred, nor does it appear that the bank is now liable for the penalty, as the limitation of two years has probably elapsed. This bill was filed under section 1955 of our code-the complainants alleging that they are judgment creditors of the defendants, E. F. Redfield & Co., and that in transaction with the First National Bank of Chattanooga, the bank had received from Redfield & Co. an amount of usury for the loan of money sufficient to pay complainants' judgments, and complainants seek by this bill to recover the same from the bank. Defence was first made by demurrer, which was overruled, and then by plea, which was held sufficient, and the bill dismissed. The defence is this: that the bank was organized under the acts of Congress establishing the system of national banks; that the act fixes the rate of interest to be charged by the bank to be the rate fixed by the laws of the state where the bank is situated, and the act of Congress further preWe have not found, in the authorities furnished us, any satisfacscribes certain penalties and forfeitures for taking a greater rate of tory discussion of this question. While the language of some of the interest than is thus allowed to be charged, and among these pen-judges, in some of the cases, seems to bear upon the question, yet alties the right of a creditor of the borrower to sue and recover their language has reference to a different state of facts, and really back the usury is not included. And it is maintained that this different questions, and therefore they should not be regarded as penalty and remedy is exclusive of all others, and that none other deciding this question. can be allowed. The penalty prescribed by the act of Congress is double the amount of interest paid, to be recovered back by the person paying the same, or his legal representative, if sued for in two years. We are of the opinion that the act of Congress prescribing a penalty as a punishment for violating the law, was not intended to preclude the state courts from compelling the usurer to do simple justice, according to its own laws, by restoring the usury to the party from whom it was received, or his creditor, especially where it does not appear that the penalty has been enforced, or is now subject to be enforced. In this view, the plea was insufficient. The decree will be reversed, and the plea held insufficent. The cause is remanded for an answer, the bank paying the costs of this court. REVERSED AND REMANDED. The remedy given by our code, sec. 1955, is to recover back the usury paid, and this remedy is also given to a judgment creditor of the party paying it. The principle contended for, that when a penalty is prescribed by statute, and the remedy for its recovery is also given, that the penalty cannot be recovered in any other mode, is no doubt correct; and from this we may conclude, that the pen--[Nashville Com. Reporter. [Correspondence.] Liability of Express Companies for Goods Lost in Railroad Accidents-Judge Ballard's Recent Decision. EDITORS CENTRAL LAW JOURNAL:-The opinion of Judge Ballard in the case of the Bank of Kentucky v. Adams Express Company, delivered in the Circuit Court of the United States (District of Kentucky), is reviewed in your CENTRAL LAW JOURNAL, of October 1st, 1874, pp. 498–500. The importance of the question involved, renders it proper in the profession to subject the opinion to a re-examination of the principles and authorities upon which it relies. It has attracted much legal attention, and has provoked many comments, but none more suggestive than those of your correspondent in the review referred to. Agreeing as I do with the decision, I will endeavor to point out what I conceive to be the misapprehension of the learned correspondent as to the principles announced by the court, and then to invoke authorities, which, though differing with those cited by the The defendant gave his negotiable note, secured by mortgage, for 20 per cent. of stock subscribed in the Great Western Insurance Company of Chicago; that being the cash payment required by the company. This note and mortgage were sold and assigned by the company to the complain int, a citizen of Illinois, before due, and as the court decided, for value. The note was sent by the complainant to one Ellis, a banker in Iowa, for collec-able reviewer, must convince him that he has read but one side of tion of interest. While in the possession of the banker for that purpose, the defendant brought an action of replevin in the state court against the banker as defendant, for the note, and on the writ of replevin, obtained possession thereof. The ground of the replevin action was, that as the note had been obtained by fraud, the makers were entitled to its possession. The present complainant did not appear to the replevin action, nor was he made, nor did he make, himself a party to it. Judgment was given in the replevin action for the plaintiffs therein. In the present bill to foreclose the mortgage, the defendant pleaded specially the judgment on the replevin action as a conclusive bar to the complainant's right to foreclose the mortgage. Clark and Harbert, for the complainant; H. H. Trimble, for the defendant. DILLON, Circuit Judge, in disposing of this question, said orally, in substance: The special defence, that the plaintiff is concluded by the judgment in replevin in the state court, is not well founded in law. The pleadings in that case go upon the idea that the Great Western Insurance Company was the owner of the notes, and that the defendant therein, Ellis, was the agent of the company. The findings in the judgment of the state court as to Waite, the present complainant, are outside of the issues and void. Waite was the owner of the note, and the indorsement on the note so disclosed, and if he was to be bound, should have been made a party to the replevin action. Besides, his claim of ownership to the notes was known to the plaintiff in replevin long before the cause was tried, and they refused to make Waite a party. Ellis was in the interest of the plaintiffs in that suit, and no defence in fact was made, and there was no trial on the merits as respects Waite, the real owner. Jones was employed as an attorney in the replevin suit by the insurance company, and not by Waite. Whether the validity of the note could have been tried in an action of replevin in the manner 'sought, had the real owner been a party, need not be decided. The action of replevin is not one in rem, and to give jurisdiction over the person, he must be a party. Ellis sustained no such relation to the note or to Waite as to make the judgment against him which he did not defend for Waite, conclusive on him. It is res inter alios acta as to Waite. LOVE, J., concurs. -IN the case of United States v. Ryan, United States Circuit Court, District of Arkansas, the indictment in one of its courts, charges that Ryan, who was a revenue officer of the United States, took a bribe from F. A. Hobbs. On demurrer, Caldwell, J., held that this use of initial letters for given and middle names, did not make the indictment demurrable. This decision was in construction of the act of June 1st, 1872 (Stats. at Large for 1871-2, chap. 255, sec. 8), and will be the rule of practice in that court. an the question, and that he has overlooked those cases which are decisive in a federal court. Your correspondent, in his letter of October 1st, has not quoted the language of the court which he undertakes to criticise, but has inferred a statement of principles which is nowhere to be found in the opinion. I will quote from the review: "The bank sued for the money upon the theory that the fire occurred through the negligence of the defendant, or of some one else, whose negligence was imputed to the defendant, and claimed on the trial that the evidence showed negligence on the part of the railroad company, and that the defendant was liable to the the plaintiff for a loss occasioned by such negligence. But the court instructed the jury, that they should disregard the evidence on the question of negligence of the railroad company, holding that in such case the defendant is only responsible for the negliTo sustain this view of the gence of itself and its employees." case, the learned judge assumes, that the express company is but ordinary bailee for hire," is only bound to ordinary diligence of itself or its servants, and as the railroad company was not its servant, it was in no way responsible for the negligence of those who controlled the railroad and its carriages. The whole opinion is based upon these propositions, and is made up of illustrations based upon them. "Now the principle inferred here as underlying the opinion of the court is, that the express company ' is but an ordinary bailee for hire,' and is only bound to ordinary diligence; whereas the court distinctly held in the very first instruction given, "that the Southern Express Company and the Adams Express are common carriers. What Judge Ballard decided is, that the Adams Express Company was a common carrier, and as such liable for the safety of the values intrusted to it for transportation; that it was not liable for the loss of this package of money, because this loss was caused by fire, and by the express contract it was not to be responsible for loss by fire. If a common carrier may, by express contract with the consignor, limit, modify, or reduce his common law liability, then the Adams Express Company had a right, by express contract, to limit its common law liability. If it be lawful for a common carrier to contract against his common law liability for loss by fire, then the Adams' Express Company had a right, by express contract, to limit its common law liability for loss by fire of this package. The express contract against the defendant's liability for loss by fire was made in this case, and it was a lawful contract, such as it is now everywhere admitted common carriers may make. Grace v. Adams, etc., 100 Mass. 505; Holford v. Adams, 2 Duer, 480; York Co. v. Ill. Central R. R., 3 Wallace 107. The position taken by Judge Ballard, therefore, is not the position assumed by your learned correspondent to have been taken. The principle decided by Judge Ballard is this: That a common carrier may, by express contract with the shipper, limit, modify or reduce his common law liability; that an express con tract against his common law liability for loss by fire is lawful, and particular loss and damage within one of the dangers or accidents of the navigation, it is still competent for the shippers to show that it might have been avoided by exercise of reasonable skill and attention on the part of the persons employed in the conveyance of the goods; further, it is not deemed to be, in the sense of the law, such a loss as will exempt the carrier from liability, but rather a loss occasioned by his negligence and inattention to his duty." Hence it is, that although the loss occurs by a peril of the sea, yet if it might have been avoided by skill and diligence at the time, the carrier is liable. But in this stage and posture of the case the burden is upon the plaintiff to establish the negligence, as the affirmative lies upon him, (12 Howard 280); and this doctrine so clearly laid down by Justice Nelson, is re-affirmed in Transportation Company v. Downer, 11th Wallace, 133, and the authority cited by your correspondent, of Graham v. Davis, 4 Ohio State 363. was relied on in the argument, and overturned by the decision of the supreme court. So, that however there may be a conflict of authorities in the states upon this branch of the inquiry, the decisions of the Supreme Court of the United States are decisive of the question, when that question comes to be tried in a federal court. To argue, as you learned correspondent does, that the Adams Express Company is liable notwithstanding its special contract in this case, because it > liable for its employee, the Nashville Railroad Company, which, by the breaking of its bridge, caused the fire and the loss, is t loose sight of the point first made. I agree, and Judge Ballard admits in his opinion, that the express company, as a common carrier without special agreement limiting its liability, would be responsible for the loss by the Nashville Railroad Company, which it employed. But as an ordinary bailee for hire, which, respecting the loss by fire it had become by the special agreement, it is liable only for its own negligence, or that of its servants or agents. The express company was not negligent in transporting the package of money over the Louisville and Nashville Railroad, because that was contemplated by both parties, and was therefore authorized. It was not negligent in breaking the bridge, because it did not break it—it was not negligent in suffering it to break by its agents or servants, because the Nashville Railroad was neither its agent nor its servant. In the case of Buckland et al. v. Adams Express Company, the court holds the company liable, because, under the evidence in the case, there was no special agreement to limit the carrier's common law liability, and they hold the common carrier liable as such for his sub-contractor. The decision of the court explicitly rests upon this ground. I quote from the opinion: to us On a consideration of the facts stated, it does not appear that the plaintiffs ever did agree that the merchandize in question should be transported on the terms set forth in the receipt which was delivered to the workman at the manufactory, when the package was delivered to defendant's agent. It is not stated that the plaintiffs, or either of them, ever read the paper containing the | alleged regulations, or one similar to it." 97 Mass. 132. And, without quoting from the other cases relied on for the contrary In Clark, etc. v. Barnwell et al., libel for damages to 24 boxes view, they will be found to rest upon the same ground, or to have of cotton thread, the supreme court, by Justice Nelson, say ignored the distinction I have attempted to trace between a com'For as the masters and owners, like other common carriers, may mon carrier without special agreement, and a common carrier who be answerable for the goods, although no actual blame is imputable has limited his responsibility to that of an ordinary bailee for hire. to them, and unless they bring the case within the exception, in It remains only to examine the grounds upon which an ordinary considering whether they are chargeable for a particular loss, the bailee for hire is held responsible for damage caused by others. question is, not whether the loss happened by reason of the negli- The matter is so well stated in Norton v. Wiswall, 26 Barbour. gence of the persons employed in the conveyance of the goods, but 620, that I will quote: "I am not able to see how any person whether it was occasioned by any of those causes which, either can be made responsible for a particular transaction, or for the according to the general rules of law, or the particular stipulations consequences flowing from it, unless he has been in some way of the parties, offer an excuse for the nonperformance of the con-personally engaged in it, or instrumental in bringing it about, or tract after the damage to the goods, therefore, has been established, the relation between him and the person who inflicts the injury the burden lies upon the respondents to show that it was occasioned complained of, be that of partner, or master and servant, or some by one of the perils from which they were exempted by the bill of other involving the principle of agency. Where one is the mas lading, and even where evidence has been thus given, bringing the ter or principal of another, he is responsible for his acts within |