A carrier binds himself also by his contracts; and it is held, that a railroad company is bound by its advertised time-tables, * perhaps as by its contract, and certainly as by its representation, to which it was its duty to conform. (o) But it has been held in England that there is no contract that a train will arrive at the hour at which it usually arrives. (oo) 3

But although the common carrier cannot, by a mere notice, * extinguish his peculiar liability, yet he can in this way materially modify and qualify it. (p) A public notice, so spread abroad that all might know it, and brought to the distinct knowledge of the sender, would undoubtedly justify much doubt that the doctrine so firmly established in New York, and in the Supreme Court of the United States, will generally be adopted in this country, wherever the question still remains open.

(nn) Malone v. Boston, etc. R. R. Co. 12 Gray, 388; Blumenthal v. Brainerd, 88 Vt. 402; Adams Ex. Co. v. Nock, 2 Durall, 662.

(no) Kember v. Southern Express Co. 22 La. An. 160.

(np) Fillebrown v. Grand Trunk R. R. Co. 65 Me. 462.

(nq) Perry v. Thompson, 08 Mass 249.

(nr) Southern Ex. Co. v. Purcell, 37 Ga. 103.

(o) Denton v. G. N. R. Co. 6 E. & B. 860.

(oo) Lord v. Midland R. R. Co. Law Rep. 2 C. P. 339.

(p) Pardington v. S. W. R. Co. 1 Hurl. & N. 892.

1 In Oppenheimer v. U. S. Ex. Co. 69 Ill. 60, it was held that a carrier receiving a package of jewelry worth $3,800, without knowledge of its value, and giving a similar receipt, had a good defence on the ground of unfair conduct on the part of the shippers of the goods.

2 Where a passenger in a dimly lighted car delivers his baggage check to an express messenger, and receives in return a card or receipt on which the check number is entered, and which also contains an agreement limiting the liability of the express company, printed in much smaller type than the rest of the card, and illegible where the passenger is sitting, such printed matter does not form a contract between the parties. Blossom v. Dodd, 43 N. Y. 264.

3 For a discussion of a railroad company's liability for want of punctuality, see Le Blanche v. London, etc. R. Co. 1 C. P. D. 286.

the carrier who proposed to confine himself to certain departments, or to exclude certain classes of goods, and in accordance therewith refused to take parcels of the excluded description. For a common carrier does not necessarily agree to take all sorts of goods, any more than he does to carry them to all places. An express between Boston and New York does not agree to carry a load of hay, or a cargo of cotton. The carrier has a right to refuse, without notice, articles which obviously differ from his usual course of business, and he has also a right to define and limit that business, and give notice accordingly. (q)

So too, he has a right to say to all the world and to each sender, that he will not carry goods beyond a certain value; or that, if he carries such goods, he must be paid for it by a premium on the increased risk. This is reasonable; and it is consistent with public policy, because it tends to give the carrier exact knowledge of what he carries, and of what risks he runs, and thus to induce him to take the proper care, and proportion his caution and his means of security to the value of the goods. (r) But in the con(q) Wise v. G. W. R. Co. 1 Hurl & N. 63.

(r) The notices now alluded to have often been confounded with those which exempt the carrier absolutely from his liability, and which, as we have seen in note (n), ante, are not held valid. But it if very important that the two should be kept distinct. We have seen that there are but two cases in the English books, and those Nisi Prius cases, in which the latter have been expressly sanctioned; and that they were entirely put an end to by the Carriers Act. On the other hand, the former were sanctioned by the courts at an earlier date, were recognized in a vast number of cases previous to the Carriers Act, were established and regulated by that act, and have never, that we are aware of, been repudiated by any court in this country or in England. The case of Nicholson v. Willau, 5 East, 607, is generally considered as the one in which they were first sanctioned by a judicial decision. There the defendant was a coach proprietor and had published a notice, the purport of which was that he would not be accountable for any package whatever (if lost or damaged), above the value of £5, unless insured and paid for at the time of delivery. The action was brought to recover for the loss of a parcel delivered to the defendant to carry, containing goods to the value of £58. No disclosure was made of the true value of the parcel, nor was any extra freight paid; and the court held that the defendant was protected by his notice. From this time until the passage of the Carriers Act, effect was given to similar notices in Harris v. Packwood,

3 Taunt. 264 (1810); Beck v. Evans, 16 East, 244 (1812); Levi v. Waterhouse, 1 Price, 280 (1815); Bodenham v. Bennett,

4 id. 31 (1817); Smith v. Home, 8 Taunt. 144 (1818); Birkett v. Willan, 2 B. & Ald. 366 (1810); Batsou v. Donovan, 4 id. 21 (1820); Garnett v. Willan, 6 id 53 (1821); Sleat v. Flagg, id. 342 (1822); Duff v. Budd, 3 Br. & B. 177 (1822); Marsh v. Horne, 5 B. & C. 322 (1826); Brooke v. Pickwick, 4 Bing. 218 (1827); Riley v. Horne, 5 Bing. 217 (1828); Bradley v. Waterhouse, Mood, & M. 164 (1828), and many other cases. In this state of things, the Carriers Act, 2 Geo. IV. and I Win. IV. ch. 68, was passed. It is entitled, "An Act for the more effectual Protection of Mail Contractors, Stage-Coach Proprietors, and other Common Carriers for Hire, against the Loss of, or Injury to, Parcels or Packages delivered to them for Conveyance or Custody, the Value and Contents of which shall not be declared to them by the Owners thereof." The first section recites: "That whereas by reason of the frequent practice of bankers and others of send-ing by the public mails, stage-coaches, wagons, vans, and other public convey struction of the notice, it is held that all restrictions must be ances by land, for hire, parcels and packages containing money, bills, notes, jewelry, and other articles of great value, in small compass, much valuable property is rendered liable to depredation, and the responsibility of mail contractors, stage-coach proprietors, and common carriers for hire, is greatly increased: And whereas through the frequent omission, by persons sending such parcels and packages, to notify the value and nature of the contents thereof, so as to enable such mail contractors, stage-coach proprietors, and other common carriers, by due diligence, to protect themselves against losses arising from their legal responsibility, and the difficulty of fixing parties with knowledge of notices published by such mail contractors, stagecoach proprietors, and other common carriers, with the intent to limit such responsibility, they have become exposed to great and unavoidable risks, and have thereby sustained heavy losses;" and enacts: "That from and after the passing of this act, no mail contractor, stage-coach proprietor, or other common carrier by land, for hire, shall be liable for the loss of, or injury to, any article or articles, or property of the descriptions following, that is to say, gold or silver coin of this realm or of any foreign state, etc. (enumerating various kinds of goods), contained in any parcel or package which shall have been delivered, either to be carried for hire, or to accompany the person of any passenger, in any mail or stage-coach or other public conveyance, when the value of such article or articles, or property aforesaid, contained in such parcel or package, shall exceed the sum of .£10, unless at the time of delivery thereof at the office, warehouse, or receiving-house, of such mail contractor, stage-coach proprietor, or other common carrier, or to his, her, or their book-keeper, coachman, or other servant, for the purpose of being carried, or of accompanying the person of any passenger as aforesaid, the value and nature of such article or articles, or property, shall have been declared by the person or persons sending or delivering the same, and such increased charge as hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package." Section 2 enacts: "That when any parcel or package, containing any of the articles above specified, shall be so delivered, and its value and contents declared as aforesaid, and such value shall exceed the sum of £10, it shall be lawful for such mail contractors, stage-coach proprietors, and other common carriers, to demand and receive an increased rate of charge, to be notified by some notice affixed in legible characters in some public and conspicuous part of the office, warehouse, or other receiving-house where such parcels or packages are received by them for the purpose of conveyance, stating the increased rates of charge required to be paid, over and above the ordinary rate of carriage, as a compensation for the greater risk and care to be taken for the safe conveyance of such valuable articles, and all persons sending or delivering parcels or packages containing such valuable articles as afore said, at such office, shall be bound by such notice without further proof of the same having come to their knowledge." Section 3 enacts: "That when the value shall have been so declared, and the increased rate of charge paid, or an engagement to pay the same shall have been accepted as hereinbefore mentioned, the person receiving such increased rate of charge, or accepting such agreement, shall, if thereto required, sign a receipt for the package or parcel, acknowledging the same to have been insured, which receipt shall not be liable to any stamp duty; and if such receipt shall not be given when required, or such notice as aforesaid shall not have been affixed, the mail contractor, stage-coach proprietor, or other common carrier as aforesaid, shall not have, or be entitled to, any benefit or advantage under this act, but shall be liable and responsible as at the common law, and be liable to refund the increased rate of charge." Section 4 enacts: " That from and after the first of September now next ensuing, no public notice or declaration heretofore made, or hereinafter to be made, shall be deemed or construed to limit or in anywise affect the liability at common law of any such mail contractor, stage-coach proprietor, or other public common carrier as aforesaid, for or in respect of any articles or goods to be carried and conveyed by them, but that all and every such mail contractors, stage-coach proprietors, and other common carriers as aforesaid, shall, from and after the 1st September, be liable as at the common law, to answer for the loss of [or] any injury to any articles and goods in respect whereof they may not be entitled to the benefit of this act, any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability, notwithstanding." Section 5 enacts: "That for the purposes of this act, every office, taken most strongly against the carriers. (rr) And it is held, warehouse, or receiving-house, which shall be used or appointed by any mail contractor, or stage-coach proprietor, or other common carrier as aforesaid, for the receiving of parcels to be conveyed as aforesaid, shall be deemed and taken to be the receiving-house, warehouse, or office, for such mail contractor, stage-coach proprietor, or other common carrier, and that any one or more of such mail contractors, stage-coach proprietors, or common carriers, shall be liable to be sued by his, her, or their name or names only, and that no action or suit commenced to recover damages for loss or injury to any parcel, package, or person, shall abate for the want of joining any co-proprietor or copartner in such mail, stage-coach, or other public conveyance, by land, for hire, as aforesaid." Sect 6 enacts: "That nothing in this act contained shall extend or be construed to annul, or in anywise affect, any special contract between such mail contractor, stage-coach proprietor, or common carrier, and any other parties, for the conveyance of goods and merchandise." The act contains eleven sections, but the other five are not very material to our present inquiry. We shall have occasion presently to notice some decisions upon the construction of this statute. In this country very few cases appear to have arisen upon notices of the land that we are now speaking of. Dicta may be found, however, sustaining them in Orange County Bank v. Brown, 9 Wend. 116, and in Bean v. Green, 8 Fairf. 422, and they were very ably vindicated by Mr. Justice Cowen, in Cole v. Goodwin, 19 Wend. 261. Upon the whole, in the language of Mr. Justice Hatfield, "we regard it as well settled, that the carrier may, by general notice, brought home to the owner of the things delivered for carriage, limit his responsibility for carrying certain commodities beyond the line of his general business, or he may make his responsibility dependent upon certain conditions, as having notice of the kind and quantity of the things deposited for carriage, and a certain reasonable rate of premium for the insurance, paid, beyond the mere expense of carriage." See Farmers & Mechanics Bank v. Champlain Trans. Co. 28 Vt. 186, 206. - It remains that we consider to what extent a carrier may exempt himself from his common-law liability, whether by notice or by special contract. This question first arose in the cases concerning notices. Many of those cases we have already cited in this note. They will be found, upon examination, to exhibit a considerable degree of uncertainty and contrariety of opinion upon the question. Some of them inclined to hold, that a non-compliance by the bailor with the terms of the notice was a fraud on his part, and consequently that the carrier was liable for nothing short of direct malfeasance; other cases, and the greater number, held the carrier liable for gross negligence; and others still, held him liable for ordinary negligence. No certain rule could be deduced from the cases until Wyld v. Pickford, 8 M. & W. 448. In that case the whole subject was elaborately examined and the Court of Exchequer declared that the carrier, notwithstanding his notice, was bound to use ordinary care. Parke, B., said: "Upon reviewing the cases on this subject, the decisions and dicta will not be found altogether uniform, and some uncertainty still remains as to the true ground on which cases are taken out of the operation of these notices. In Bodenham v. Bennett (4 Price, 84), Mr. Baron Wood considers that these notices were introduced for the purpose of protecting carriers from extraordinary events, and not meant to exempt them from due and ordinary care. On the other hand, in some cases it has been said that the carrier is not, by his notice, protected from the consequences of misfeasance, - Lord Ellenborough, in Beck v. Evans (16 East, 247); and that the true construction of the words,'lost or damaged,' in such a notice, is, that the carrier is protected from the consequences of negligence or misconduct in the carriage of goods, but not if he divests himself wholly of the charge committed to his care, and of the character of carrier. Bayley and Holroyd, JJ., in Garnett v. Willan (6 B. & Ald. 67, 60). In many other cases it is said, he is still responsible for 'gross negligence;' but in some of them that term has been defined in such a way as to mean ordinary negligence (Story on Bailm. §11); that is, the want of such care as a prudent man would take of his own property. Best, J., in Batson v. Donovan (4 B. & Ald. 80), and Dallas, C. J., in Duff v. Budd (3 Br. & B. 182). The that, although the plaintiff took a receipt containing such notice, weight of authority seems to be in favor of the doctrine, that in order to render a carrier liable after such a notice, it is not necessary to prove a total abandonment of that character, or an act of wilful misconduct, but that it is enough to prove an act of ordinary negligence, - gross negligence, in the sense in which it has been understood in the last-mentioned cases; and that the effect of a notice, in the form stated in the plea, is, that the carrier will not, unless he is paid a premium, be responsible for all events (other than the act of God and the Queen's enemies), by which loss or damage to the owner may arise, against which events he is, by common law, a sort of insurer; but still he undertakes to carry from one place to another, and for some reward in respect of the carriage, and is therefore bound to use ordinary care in the custody of the goods, and their conveyance to and delivery at their place of destination, and in providing proper vehicles for their carriage; and after such a notice, it may be that the burden of proof of damages or loss by the want of such care would lie on the plaintiff." We are not aware, however, that any of the English cases have expressly held that it was incompetent for a carrier to exempt himself by notice from the consequences of his own negligence, if he used terms which could receive no other reasonable construction. But however this may be, a series of English cases since the Carriers Act, and within the last two years, seem to have settled the point there that it is competent for a carrier by an express contract between himself and his bailor to exempt himself from liability for anything short of actual malfeasance. The first of these cases which it is necessary to cite is that of Chippendale v. The L. & Y. Railway Co. 7 E. L. & E. 886, in the Queen's Bench. There the plaintiff, who had some cattle conveyed by a railway company, received for them a ticket, which he signed, containing the terms on which the railway company carried the cattle. At the foot of the ticket there was a clause: "N. B. - This ticket is issued subject to the owner undertaking all risk of conveyance whatever; as the company will not be liable for any injury or damage, howsoever caused, and occurring to live stock of any description travelling upon the L. & Y. Railway, or in their vehicles." The plaintiff saw the cattle put into the truck. During the journey some of the cattle got alarmed and broke out of the truck, and were injured. The truck was so defectively constructed as to be unfit and unsafe for the conveyance of cattle. Held, that there was no implied stipulation that the truck should be fit for the conveyance of cattle; and that the company were protected by the terms of the ticket from liability to the plaintiff for the damage to the cattle. It should be observed, however, that Erle, J., places some stress upon the fact that the contract was for the carriage of live stock. He says: "I think that a limitation, however wide in its terms, being in respect of live stock, is reasonable; for though domestic animals might be carried safely, it might be almost impossible to carry wild ones without injury." See also Morville v. The Great Northern Railway Co. 10 E. L. & E. 866. Then followed the cases of Austin v. The M. S. & L. Railway Co. 11 E. L. & E. 606; s. c 10 C. B. 464; and Carr v. The L. & Y. Railway Co. 14 E. L. & E. 840; s. c. 7 Exch. 707, both decided the same day. In the former case a railway company, letting trucks for hire, for the conveyance of horses, delivered to the owner of the horses a ticket, in which it was stated that the owners were to undertake all risks of injury by conveyance or other contingencies; and further stipulated, that the company would not be liable for any damages, however caused, to horses or cattle. The horses received damage through the breaking of an axle, which was attributable to the culpable negligence of the company's servants. A verdict having been found for the plaintiff, a rule Nisi was obtained for arresting the judgment. Upon the argument, the counsel in support of the rule insisting that the defendants were protected from all liability by their notice, Jervis, C. J., said: "Must they not act as common carriers, except so far as they limit their liability by the ticket? It seems an alarming proposition to say that they can exempt themselves from all liability. If they are allowed to do so in respect of goods, why should they not be able to do it in the case of passengers? Supposing they were to be treated as gratuitous bailees, would they not be liable for gross negligence?" But after taking time to consider, the rule was made absolute, Cresswell, J., delivering the judgment of the court in an elaborate opinion. In Carr v. The L. & Y. Railway Co., the plaintiff, being the owner of a horse, delivered it to the defendants, a railway company, to be carried on the railway, subject to conditions which stated that the owners undertook all risks of conveyance whatsoever, as the company would he may show that he never assented or accepted the paper as a contract. (rs) l not be responsible for any injury or damage, however caused, accruing to live stock of any description travelling on the railway. The horse haying been injured by the horse-box being propelled against some trucks through the gross negligence of the company: Held, Piatt, B, hesitating, that the company, under the terms of the contract, were not responsible for the injury. But quaere, per Alderson, B., whether the company would have been responsible if the horse had been stolen. Parke, B., said: "The question in this case turns upon the notice which was given by the defendants, and which forms the foundation of the contract between the parties. It is plain that, since the passing of the Carriers Act, it is competent for carriers to make a special contract. Such a contract was made in this case, and the only question is as to the meaning of that contract. According to the old cases, there was this limitation upon the construction of carriers' notices, that unless a carrier excluded his liability in express terms, according to the ordinary terms of the notice, he would be responsible for gross negligence. The practice of a carrier protecting himself by notice, was put an end to by the Carriers Act. . . . Prior to the establishment of railways, the court were in the habit of construing contracts between individuals and carriers, much to the disadvantage of the latter. Before railways were in use the articles conveyed were of a different description from what they are now. Sheep and other live animals are now carried upon railways, and horses which were used to draw vehicles are now themselves the objects of conveyance. Contracts, therefore, are now made with reference to the new state of things, and it is very reasonable that carriers should be allowed to make agreements for the purpose of protecting themselves against the new risks to which they are in modern times exposed. Horses are not conveyed on railways without much risk and danger; the rapid motion, the noise of the engine, and various other matters are apt to alarm them and cause them to do injury to themselves. It is, therefore, very reasonable that carriers should protect themselves against loss, by making special contracts. The question is, whether they have done so here. The jury have found that the defendants have been guilty of gross negligence, and that must be taken as a fact. In my opinion, the owner of the horse has taken upon himself the risk of conveyance, the railway company being bound merely to find carriages and propelling power; the terms of the contract appear to me to show this. The company say they will not be responsible for any injury or damage (however caused) occurring to live stock of any description, travelling upon their railway. This, then, is a contract, by virtue of which the plaintiff is to stand the risk of accident or injury; and certainly, when we look at the nature of the things conveyed, there is nothing unreasonable in the arrangement. In the case of Austin v. The Manchester, Sheffield, & Lincolnshire Railway Company, 16 Q. B. 600, the language of the contract was different from the present, but not to any great extent. (His lordship stated the case.) In that case, the accident was occasioned by the wheels not being properly greased; in the present case, the carriage that contained the plaintiff's horse was driven against another carriage. We ought not to fritter away the meaning of contracts merely for the purpose of making men careful. That is a matter that we are not bound to correct. The legislature may, if they please, put a stop to contracts of this kind; but we have nothing to do with them, except to interpret them when they are made." Alderson, B.: " The defendants in this case undertook to carry the goods in question on certain terms. The question then is, What are those terms? It is clear that they are such as the defendants might lawfully make. It is plain to me that they undertook to v. Newby, 86 Ga. 636; McMillan v. Michigan Southern R. R. Co. 16 Mich. 70.