tangled skein, it may not be unprofitable to examine somewhat carefully into the history of the cases and ascertain, if we can, with whom the advantage lies.

It would, of course, be a matter of prime importance to determine what the law was upon this question in England previous to the American revolution, a date frequently referred to in its discussion in this country; but it is a fact somewhat remarkable that previous to that time, no case had come before any of the English courts, in which it was involved. The idea of divesting himself of his extremely onerous common law liability by notice or contract seems never to have been put in practice by the carrier until about that time.

The reason for this is well explained in the English note to the case of Coggs vs. Bernard, 1 Smith's Leading Cases, 365. “However,” says the author, after referring to this circumstance, "when the increase of personal property throughout the kingdom and the frequency with which articles of great value and small bulk were transmitted from one place to another, had begun to render this degree of liability intolerably dangerous, carriers, on their part, began to insist that their employers should, in such cases, either diminish it by entering into contracts to that effect upon depositing their goods for conveyance, or should pay a rate of remuneration proportionable to the risk undertaken. To this end they posted up and distributed written or printed notices to the effect that they would not be accountable for property of more than a specified value, unless the owner had insured and paid an additional premium for it."

Although, however, no case had brought the question directly before the courts up to that time, the right of the carrier to make speeial acceptances and contracts to avoid his heavy responsibility, had been taken for granted and assumed as law by Lord Coke, in the note to Southcote's case, 4 Rep., 84, and by Rolle, J., in Keurigg vs. Eggleston, Aleyn, 93, as early as 1649; and afterwards in the case of Morse vs. Slue, 1 Ventr., 238, it was observed by Lord Hale that the master of the ship "might have made a caution for himself;" but having failed to do so, he was held liable, although it had been found by the jury that he was not to blame.

It was, no doubt, from these early declarations of the law, that the common carrier took the hint of resorting to notices and contracts for relief when the change in the nature and circumstances of his business seemed imperatively to require it. The case of Kenrigg

vs. Eggleston, it may be here observed, is also noticeable as showing the great rigor with which carriers were treated in that age. It was the case of a box delivered to the carrier with the statement that it contained a book and some tobacco, when, in fact, it also contained a large amount of money. He was held liable, notwithstanding the fraud; Rolle, J. telling the jury that as he had not made a special acceptance he was liable also for the money; quod durum videbatur circumstantibus, as the reporter adds; which afterwards in Gibbon vs. Paynton, 4 Burr., 2301, elicited from Lord Mansfield the remark that he would have agreed with the circumstantibus.

It is somewhat strange that from all we can gather from the old reports the right to make this "caution for himself" by the carrier, if any such right existed, was permitted to lie dormant and does not figure nor is even made the subject of remark in any of the cases for nearly a whole century; for the next we hear of it, is in Gibbon vs. Paynton, 4 Burr. 2290, (A. D., 1769,) in which the attempt was made to hold the carrier liable for money delivered to him, coucealed in a bag, filled with hay, although the carrier had given notice that he would not be liable for money or valuables unless notice was given. Mansfield, C. J., decided the case on the ground of fraud; but the other Judges considered the notice as equivalent to a special acceptance. And it seems that the next heard of it, was in Forward vs. Pittard, 1 T. R., 27, before the same Court, in 1785, until which Burrough, J., says in Smith vs. Horne, 8 Taun., 50, the doctrine of notices by carriers was never known in Westminster Hall. The case, however, went off upon another point, and the question as to the validity of the notice was not adjudged.

It is to be observed that from these two cases it would appear that the first attempt made by carriers to evade their common law liability was by public notice, and that the resort to special contracts and acceptances was an afterthought. And it is also worthy of notice that the very first two cases in which notice was invoked as a defense by the carrier, were before Lord Mansfield, who, in neither of them, discountenanced it.

At length, in 1804, in the case of Nicholson vs. Willan, 5 East, 507, the question as to the validity of such notices came up directly for decision before Lord Ellenborough, in the King's Bench. The defendants, who were carriers, had put up an advertisement on a board in their office, of which plaintiff had notice, that they would not be liable for any package whatever above the value of £5, unless insured and paid for at the time of delivery, and unless, if lost, its

value should be demanded in one month after such damage was sustained. The parcel in question contained £58, of which no notice was given to defendant. After a curia advisari vult, Lord Ellenborough delivered his judgment, in which he said: "Considering the length of time during which and the extent and universality in which the practice of making such special acceptances of goods for carriage by land and water has now prevailed in this Kingdom under the observation, and with the allowance of courts of justice, and with the sanction and countenance of the legislature itself, which is known to have rejected a bill brought in for the purpose of narrowing the carrier's responsibility in certain cases on the ground of such a measure being unnecessary, inasmuch as carriers were deemed fully competent to limit their own responsibility in all cases by special contract; considering also that there is no case to be met with in the books in which the right of the carrier thus to limit his own responsibility by special contract, has ever been by express decision denied, we can not do otherwise than sustain such right, however liable to abuse and productive of inconvenience it may be, leaving to the legislature if it shall think fit to apply such remedy hereafter as the evil may require." And the judgment was accordingly that the plaintiff could not recover even the £5 which the jury had found for him.

This decision at once cleared away all doubt as to the validity of notices by common carriers to limit their responsibility when brought to the knowledge of the bailor, and from that time there are numerous cases to be found in the English Common Law Courts, recognizing the doctrine as fully established, several of the Judges going so far as to say that there was never any doubt: Batson vs. Donoran, 4 B. & Ald., 32; Mayhew vs. Eames, 3 B. & C., 601; Maring vs. Todd, 1 Starkie, 72; Leeson vs. Holt, Id., 186; Riley vs. Horne, 5 Bing., 217.

Under the law, as held in these cases, the carrier might limit his liability for loss or injury resulting from any cause whatever, even the felony of his own servants, except his own gross negligence or misfeasance, either by express contract with the bailor, by special acceptance of the thing to be carried, or by public notice by advertisement or otherwise brought to his knowledge. Butt vs. Great: W. R. R., 11 Com. B., 140; Brook vs. Pickwick, 4 Bing., 218; Smith vs. Horne, 8 Taun., 18; Birkett vs. Wilan, 2 B. & A., 356; Garnett vs. Wilan, 5 Id., 53; Sleat vs. Fagg, Id., 542; Wright vs. Snell, Id., 35; Wyld vs. Pickford, 8 M. & W., 443. The mode re

sorted to however in the great majority of the cases, was that of public notice, which according to all the cases, if brought to the knowledge of the bailor, constituted what was called a special or qualified acceptance by the carrier and was the contract of the parties.

With this exception, however, as to the negligence of the carrier, engrafted upon the rule, it afforded a very precarious protection to him, for, as is said by Lord Denman, in Hinton vs. Dibbin, 2 Ad. & El. (N. S.) 646, "without negligence of some kind, it is not very easy to suppose how a loss for which the carrier is liable can take place."

It was, too, in many instances, impossible for him to prove positive knowledge of the notice by his employer; and many questions arose as to what should be sufficient evidence that the notice had come to his knowledge, whether it was to be presumed that he had seen it in a newspaper which he had been accustomed to read, or whether he had seen it posted up at the office where the carrier transacted his business. Questions also arose as to the construction to be put upon the various forms of notices which had been adopted. These and various similar questions were being brought before the Courts, so much to the discomfort of the Judges, it seems, that several of them expressed regrets that the door had ever been opened to them.

These considerations in connection with the frauds which were being practiced upon carriers by concealments of value, and the frequent hardships resulting to them from the carelessness of their servants (see Hinton v. Dibbin, supra,) induced the Legislature to pass the act of 11 George, 4, and 1 W., 4, (1830) commonly known as the English Land Carrier's Act.

The title of this act is "for the more effectual protection of mail contractors and other common carriers for hire against loss or injury to parcels or packages delivered to them for conveyance or custody, the value or contents of which shall not be declared to them by the owners thereof." After a preamble which recites that by reason of the frequent practices of bankers and others sending by public conveyances for hire, parcels and packages containing articles of great value in small compass, much valuable property is rendered liable to depredation and the responsibility of such common carriers is greatly increased, and by the frequent omission of persons sending such parcels to notify the value and nature of the contents so as to enable such carriers to protect themselves against losses, "and the difficulty of fixing parties with knowledge of notices," published to

limit their responsibility they have sustained heavy losses, it is enacted that no such common carrier shall be liable for the loss of or injury to any property therein specified above the value of £10, (enumerating almost every conceivable article of value which can be compressed into a small compass), not occasioned by the felonious acts of his servants or his own personal negligence, unless at the time of the delivery thereof at the office of such carrier the value and nature of such property shall have been declared and the increased charges authorized by the act shall have been paid; and further, that from and after that time, no public notice or declaration shall exempt any carrier from his liability at common law for the loss or injury to any articles other than those specified, but that as to such other articles his liability as at common law shall remain, notwithstanding such notice; and provided, also, that no special contract with the carrier shall be affected by the act.

These are the substantial provisions of the act, which, to this day, remain the general law of Great Britain, as to the liability of carriers by land, except in so far as it has been modified by the Railway and Canal Traffic Act, of 1854, which only provides that, as to the things therein enumerated, no conditions as to their carriage by railway and canal companies, shall be valid unless the same be just and reasonable; and signed by the owner or person delivering the same, to be carried; provided, however, that nothing therein contained shall affect the rights, privileges and liabilities of such companies under the Carriers' Act, with respect to articies of the description mentioned therein.

Commenting upon their Carrier's Act, the English Judges have said that protection to carriers was the object, as its title imports, and that they would not put upon it a more limited construction than its language required. Hence they have held that, although public notices will no longer avail the carrier in limiting his liability, special contracts for that purpose are still allowed, and are not affected by the act. And that if notice be given to the customer, and he subsequently sends his goods to be carried without objection to the terms of the notice, he is bound thereby: Walker vs. Y. & N. Midland R. R., 2 El. & B., 750; Austin vs. Manchester, R. R., 10 C. B. 454; Carr vs. Lancashire, &c. R. R., 7 Ex. 707; Foles vs. G. Western R. R., Id., 699. So that the validity and effect of notices other than such as are called public, remain the same as before

the act.

It was also decided in Hinton vs. Dibbin, 2 Ad. & El., (N. S.),