of the State of Louisiana. No mention was made of the citizenship of the other defendants, and no other ground of removal was given than that Hancock and Nicholson were citizens of different States. It does not appear that this petition was ever formally presented to the State Court. The transcript only shows that it was filed. On the 19th of December, 1876, after the date of the filing of the petition for removal, the petition in the suit was amended by adding [231] the name of Richard Fitzgerald, a citizen of Louisiana, as a defendant, and a summons was thereupon issued to bring this new defendant into court. On the 11th of December, 1877, nearly a year after the petition for removal was filed, the clerk of the State Court made a transcript of the record and proceedings in that court, and annexed his certificate of its correctness. On the same day, the attorney of Hancock indorsed on the transcript the following: "I consent, on behalf of plaintiff, that this shall be considered a correct transcript of the record of the suit of E. C. Hancock v. Mrs. E. J. Holbrook, No. 23,653, Third District Court, Parish of Orleans, the same to be filed in the U. S. Circuit Court, in accordance with the order to transfer." No Here the appellce petitioned for the removal. The cause was not, however, docketed in the Circuit Court until a year after the petition for removal had been filed in the State Court, and it nowhere appears that any action was taken in the latter court in reference to its own jurisdiction. Neither does it appear by which party the case was docketed in the Circuit Court. It does appear, however, that the appellant consented to the docketing, and that he made no effort whatever to have the case remanded. He was the first to move in the Circuit Court, and there is nothing to show that he remained in that court against his will. We are strongly inclined to the opinion that the removal was effected with the consent of both parties and without the attention of either of the courts having been called to the jurisdictional facts. Under these circumstances, each party should pay one half the costs in this court. The decree of the Circuit Court is reversed and the cause returned to that court, with instructions to remand it to the State Court from which it was improperly removed, and with liberty to make such order as to costs accruing in the Circuit Court after the removal as equity and justice may require. A judgment will be entered against the appellees for one half the costs in this court. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. The transcript, thus certified and indorsed, v. FORRESTER H. HIGGINS. (See S. C., Reporter's ed., 227–229.) Jurisdiction as to amount-what to be considered. erus. It was decided at the last term, in R. Co. v. improperly removed. This is such a case. All 2. The judgment against the defendant, who is IN ERROR to the Circuit Court of the United States for the Western District of Missouri. The history and facts of the case sufficiently Messrs. W. Hallett Phillips, Karnes & Ess and Chas. L. Dobson, for defendant in error, in support of motion. Mr. Henry Wise Garnett, for plaintiff in error, contra. In the same case it was also decided that upon [232] such a reversal this court may make such order in respect to costs of the appeal or writ of error as justice and right shall seem to require. In that case the removal was made on the appli- This record shows that Higgins, the defendcation of the appellant and, although a judg-ant in error, brought suit against the Bradstreet ment of reversal was entered, costs were given Company for $8,000, the price and value of against him. It appeared there, however, that certain property of his which the Company had the appellee, after the case got to the Circuit Court, moved that it be remanded to the State NOTE.-Jurisdiction of U. S. Supreme Court deCourt, and only remained in the Circuit Court pendent on amount; interest will not be added to give because his motion was overruled. He subjurisdiction; how value of thing demanded may be mitted to the jurisdiction of the Circuit Court shown: what cases reviewable without regard to sum in controversy. See note to Gordon v. Ogden, 28 U. upon compulsion. S. (3 Pet.), 33. Mr. Chief Justice Waite delivered the opin- [228] ion of the court: appropriated to its own use. The answer of the Company contained: 1, a general denial of the allegations of the petition; 2, a counterclaim of $1,104.18 for moneys collected by Higgins for the use of the Company and not paid over; and, 3, a counterclaim of $1,833.42, the expenses of the office of the Company at Kansas City over its receipts, which Higgins, as superintendent of the office, was bound to pay. Higgins in his reply admitted the first counterclaim and consented to its being applied as a credit upon the demand for which his suit was brought. As to the second counterclaim, his defense was, in effect, that the legitimate expenses of the office at Kansas City while he was superintendent, which he was bound to pay, did not exceed its legitimate receipts. Upon these issues a trial was had, which resulted in a verdict and judgment in favor of Higgins for $3,333.92. Upon the trial, a bill of exceptions was taken by the Company, from which it appears that evidence was introduced by the Company "Tending to show that the legitimate expenses of the Kansas City office exceeded its legitimate receipts during the time plaintiff acted as its superintendent, in the sum of $61.10, including plaintiff's salary of $100 per month as expenses." This writ of error was brought by the Company, and Higgins now moves to dismiss because the value of the matter in dispute does not exceed $5.000. In Hilton v. Dickinson, 108 U. S., 165 [XXVII., 688], it was decided, on full consideration, that our jurisdiction for the review of the judgments and decrees of the Circuit Courts, in this class of cases, depends on the value of the matter in dispute here, and that it is the actual matter in dispute, as shown by the whole record and not the ad damnum alone, which governs. Here the recovery against the Company was less than $5,000, and that, according to all the cases which were fully collected and commented on in Hilton v. Dickinson, is not of itself enough to give us jurisdiction. The right of the Company to bring the case here, therefore, depends on the jurisdictional effect of its [229] various counterclaims. As the first of these claims was admitted by Higgins in his reply, there could not have been below and there cannot be here any dispute about that The conclusive presumption upon the record is, that the amount of this claim was credited upon the sum found due from the Company for the property about which the suit was brought, and the verdict and judgment given only for the balance remaining after that deduction was made. As to the second, the record shows that while the claim in the pleadings was for $1,833.42, the evidence introduced in support of it only tended to prove that there was $61.10 due from Higgins on that account. The dispute in this court, therefore, according to the record, is: 1, as to the right of Higgins to retain his judg. ment against the Company for $3,333.92; and, 2, as to the right of the Company to recover $61.10 from Higgins. As these two sums combined do not make $5,000, it is clear we have no jurisdiction, and the motion to dismiss must be granted. Had it not been for the statement in the bill of exceptions, which, in effect, limited the counterclaim to the amount which the evidence tended to prove, the case would have been different, for then it would have appeared (See S. C.. Reporter's ed., 273–276.) Review of state judgments. In an action in a State Court on policies of insurance, which excepted from the list losses from riots, civil commotions, insurrection or invasion, where the only question for decision was whether the insurance company was liable on its policies for losses which resulted from a fire purposely set by the order of the Confederate States Government, on the general not federal law, the decision of it by the evacuation of Richmond, which is a question of a State Court is not reviewable here. [Nos. 95, 96.] Argued Nov. 18, 1884. Decided Nov. 19, 1884. Ν IN ERROR to the Supreme Court of Appeals of the State of Virginia. On motions to dismiss. The history and facts of the case sufficiently appear in the opinion of the court. Messrs. G. F. Edmunds, Wm. A. Maury, Wm. W. Crump and W. Hallett Phillips, for defendant in error, in support of motions. Messrs. John Howard, Enoch Totten, Wm. B. Webb and James Lyons, for plaintiffs in error, contra. Mr. Chief Justice Waite delivered the opinion of the court; We have no jurisdiction in these cases. The [274] suits were brought on policies issued by the Mutual Assurance Society of Virginia, one to John Grame, and the other to Seymour P. Vial, insuring certain buildings of the respective parties against such losses or damages as might be occasioned by accidental fire or lightning, but expressly excepting from the risks losses which resulted from riots, civil commotions, insurrections or from the invasion of a foreign enemy. The defense was that the loss was not occasioned by an accidental fire, but that it resulted from a fire purposely set by the confederate authorities on the evacuation of Richmond in April, 1865, as a war measure, for the destruction of tobacco and military stores which were liable [275] * 讀 to capture by the forces of the United States. | and if it did, whether the fire which followed The motions to dismiss are granted. James H. McKenney, Clerk, Sup. Court, U. S. LAWRENCE HART, Plf. in Err., V. PENNSYLVANIA RAILROAD COM PANY. (See S. C., Reporter's ed., 331-343.) Agreed valuation in contract of carrier, effect of On the trial it was conceded that the buildings were destroyed in the progress of a fire purposely set by order of the Confederate States Government on the evacution of Richmond "in pursuance of its laws and policy to destroy military stores and tobacco which were liable to capture by the forces of the United States." The buildings insured were not actually set on fire by the confederate authorities, but they caught from a fire that was so set. On these facts, the Supreme Court of Appeals of Virginia decided that the Society was not liable under its policies. In the opinion filed, the court said: "It is plain that this fire, from which the appellants' buildings were burned, resulted from the act of these military officers, acting under express orders and by virtue of an Act of Congress of the Confederate States of America. Certainly it cannot be said that the fire which consumed the buildings of the appellants was an accidental fire or a fire by lightning. The question is: how did such fire result, and how was it occasioned? If it was occasioned by acWhere a contract of carriage, signed by the cident or by lightning, the Company is respon- shipper, is fairly made with a railroad company. sible. It is not responsible if occasioned by or agreeing on a valuation of the property carried, resulted from riots, insurrection, civil commo- the carrier assumes liability only to the extent of with the rate of freight based on the condition that tion or the invasion of a foreign enemy." Then, the agreed valuation, even in case of loss or damafter considering the facts, it is further said: "I age by the negligence of the carrier, the contract suppose that 'civil commotion' must necessarily curing a due proportion between the amount for will be upheld as a proper and lawful mode of searise where there is civil war. It is true there which the carrier may be responsible and the freight may be civil commotion without civil war, but he receives, and of protecting himself against excertainly there cannot be civil war without civil travagant and fanciful valuations. H. shipped five horses and other property, by a commotion, and I think no man who lived in railroad, in one car, under a bill of lading, signed the late decade would say that there was no by him, which stated that the horses were to be civil commotion between 1861 and 1865. But transported" Upon the following terms and conditions, which are admitted and accepted by me as the Company not only protected itself against just and reasonable: first, to pay freight thereon" liability for loss occasioned by riots, insurrection at a rate specified, "on the condition that the carand civil commotions, but against the 'invasion rier assumes a liability on the stock to the extent of the following agreed valuation: if horses or mules, of a foreign enemy.' In the light of history not exceeding $200 each. *** If a chartered car, and of facts, familiar to every man who opens on the stock and contents in same, $1,200 for the car his eyes and sees material facts before him, is it load. But no carrier shall be liable for the acts of not plain that the late war was a war of inva- the animals themselves *** nor for loss or damage arising from condition of the animals themsion and that it was the invasion of an enemy selves, which risks, being beyond the control of the und that it was the invasion of 'a foreign ene- Company, are hereby assumed by the owner and the my'?" And again; Now, many authorities carrier released therefrom." By the negligence of the Railroad Company or its servants, one of the and opinions might be quoted to the same effect horses was killed and the others were injured and but, I think, those already referred to are suf- the other property was lost. In a suit to recover ficient to show that the Confederate States of the damages, it appeared that the horses were racehorses, and the plaintiff offered to show damages, America were, certainly as long as the war based on their value, amounting to over $25,000. lasted, a separate and independent government The testimony was excluded and he had a verdict and foreign to the United States of America." for $1,200. On a writ of error, brought by him, held: 1. The evidence was not admissible, and the valuIt is upon these expressions in the opinion of ation and limitation of liability in the bill of ladthe court, and others like them, that our juris-ing was just and reasonable, and binding on the diction is supposed to rest, but it must be borne in mind that the only question for decision was whether the Society was liable on its policies for losses which resulted from such a fire as that in which the insured buildings were de plaintiff. [No. 79.] States for the Eastern District of Missouri. stroyed. The inquiry was not as to the rights The history and facts of the case appear in | the opinion of the court. Messrs. G. M. Stewart and M. C. Day, for plaintiff in error: The property shipped was of much greater value than that named in the printed form or contract. The carrier or its authorized agents knew this before it received the stock for shipment. The plaintiff was not asked the value of the property when he signed the contract, nor had there been any valuation fixed upon it. The injury was caused solely by the gross negligence of the defendant. The defendant could not relieve itself, by this bill of lading, from its common law liability for injuries resulting from its own or the negligence of servants. R. R. Co. v. Lockwood, 17 Wall., 379 (84 U. S., XXI., 640); Express Co. v. Caldwell, 21 Wall., 269 (88 U. S., XXII., 558); Farnham v. R. Co., 55 Pa. St., 53; Erp. Co. v. Sands, 55 Pa. St., 140; R. Co. v. Henlein, 52 Ala., 606; R. Co. v. Abels, 60 Miss, 1017; Exp. Co. v. Moon, 39 Miss., 832; Moulton v. R. Co., 16 N. W. Rep., 497 (S. C., 31 Minn., 85). Being unable to relieve itself from such liability in toto, it could not fix, as the limit of its liability, less than the total damage sustained by its negligence. Where the shipper fixes the value and secures a rate of freight based upon it, he cannot recover in excess of such value. Graves v. R. Co., 137 Mass., 33; Harvey v. R. R. Co., 74 Mo., 538. In this case no representation of value was required; no deception or misleading statement of value was made, and the carrier knew the value of the property it was to carry, or knew that it was greatly in excess of the sums named in the bill of lading. "If the carrier makes no inquiry, and no artifice is made use of to mislead him, he is answerable for the loss, however great the value may be." Jones v. Voorhees, 10 Ohio, 145; Jones Bailm., 105; 2 Kent, Com., 463. A common carrier may limit its liability by agreement so as to become liable only as a private carrier and may cease to sustain liability as insurer or for damage not directly flowing from its own negligence. Farnham v. R. Co., 55 Pa. St., 53; Express Co. v. Sands, 55 Pa. St., 140; Nav. Co. v. Bank, 6 How., 344; Oppenheimer v. Exp. Co., 69 Ill., 62. But such exemptions must be explicitly and clearly stated in the contract, and not left for inference. Erp. Co. v. Moon, 39 Miss., 832; Magnin v. Dinsmore, 56 N. Y., 168. In the absence of a specific agreement, none of the cases hold that the carrier can escape liability for its own negligence. Sager v. R. Co., 31 Mc., 228; Exp. Co. v. Moon (supra); R. Co. v. Abels (supra); R. Co. v. Simpson, 30 Kan., 645; Moulton v. R. Co. (supra). A common carrier cannot by contract relieve himself from liability for his own negligence. Christenson v. Exp. Co., 15 Minn., 270; Shriter v. R. Co., 24 Minn., 506; R. R. Co. v. Lockwood, 17 Wall., 357 (84 U. S., XXI., 627); Muser v. Holland, 17 Blatchf., 412; Bk. of Ky. v. Erp. Co., 93 U. S., 174 (XXIII., 872); "Black v. | Trans. Co., 55 Wis., 319; see, also, Levering v. An agreement fixing the extent of the liabil- Exp. Co. v. Caldwell, 21 Wall., 264 (88 U. S., Messrs. Everett W. Pattison and Newton The plaintiff in error is bound by the valua- R. R. Co. v. Lockwood, 17 Wall., 357 (84 U. S., XXI., 627); R. R. Co. v. Fraloff, 100 U. S., 24 (XXV., 531); Muser v. Holland, 17 Blatchf., 412; Lawson, Carr., sec. 20; Dunlap v. Steamboat Co., 98 Mass., 371; Squire v. R. R. Co., 98 Mass., 239; Graves v. R. R. Co., 17 Rep., 623; 16 Am. & Eng. R. R. Cas., 108; Batson v. Donovan, 4 B. & Ald., 21; Little v. R. R. Co., 66 Me., 239; 2 Kent, Com., 12th ed., 603; Exp. Co. v. Everett, 37 Ga., 688; S. C., 46 Ga., 303; Am. Exp. Co. v. Perkins, 42 Ill., 458; Ad. Torts, Wood's ed., 1876, sec. 703, p. 773, 774; R. R. Co. v. Henlein, 52 Ala., 606; S. C., 56 Ala., 368; Relf v. Rapp, 3 W. & S., 21; Elkins v. Trans. Co., 81 Pa. St., 315; Harvey v. R. R. Co., 74 Mo., 538. It is not necessary that the rate fixed in the R. R. Co. v. Fraloff (supra); McMillan v. R. Mr. Justice Blatchford delivered the opin- Lawrence Hart brought this suit in a State The property was transported under a bill of Lawrence Hart delivered into safe and suitable cars of the Pennsylvania Railroad Company, numbered M. L. 224, for transportation from Jersey City to St. Louis, Mo., live stock, of the kind as follows: one (1) car, five horses, shipper's count, which has been received by said Company for themselves and on behalf of connecting carriers, for transportation, upon the hand and seal, this 20th day of October, 1879. following terms and conditions, which are ad- First. To pay freight thereon to said Com- If horses or mules, not exceeding $200 each. If fat hogs or fat calves, each. If sheep, lambs, stock hogs, or stock calves, not exceeding $5 each. If a chartered car, on the stock and contents in same, $1,200 for the car load. But no carrier shall be liable for the acts of the animals themselves or to each other, such as biting, kicking, goring and smothering, nor [333] for loss or damage arising from condition of the animals themselves, which risks, being beyond the control of the Company, are hereby assumed by the owner, and the carrier released therefrom. Attest: E. Butler. W. J. Charmers, Company's Agent." At the trial the plaintiff put in evidence the bill of lading, and gave testimony to prove the alleged negligence and how the loss and injury occurred. He then offered to show that the actual value of the horse killed was $15,000; that the other horses were worth from $3,000 to $3,500 each; and that they were rendered comparatively worthless, in consequence of their injuries. The defendant objected to this testimony, on the ground that it was not competent for the plaintiff to prove any damage or loss in excess of that set out in the bill of lading. The Court sustained the objection and the plaintiff excepted. It appeared, on the trial, that the horses were race-horses, and that they and the other property were all in one car. It was admitted by the defendant that the Third. When necessary for said stock to be Fifth. This Company's liability is limited to the transportation of said animals and shall not begin until they shall be loaded on board the boats or cars of the Company. The owner of said animals, or some person appointed by him, shall go with and take all requisite care of the said animals during their transportation and delivery, and any omission to comply here[334] with shall be at the owner's risk. Witness my The errors assigned are, that the Court erred in refusing to permit the plaintiff to show the actual damages he had sustained, and in so charging the jury as to restrict their verdict to [335] $1,200. It is contended for the plaintiff that the bill of lading does not purport to limit the liability of the defendant to the amounts stated in it, in the event of loss through the negligence of the defendant. But we are of opinion that the contract is not susceptible of that construction. The defendant receives the property for transportation on the terms and conditions expressed, which the plaintiff accepts as just and reasonable. The first paragraph of the contract is that the plaintiff is to pay the rate of freight expressed, "On the condition that the carrier assumes a liability on the stock to the extent of the following agreed valuation: if horses or mules, not exceeding $200 each. * * * If a chartered car, on the stock and contents in same, $1,200 for the car load." Then follow, in the first paragraph, these words: "But no carrier shall be liable for the acts of the animals themselves or to each other, such as biting. kicking, goring or smothering, nor for loss or damage arising from condition of the animals themselves, which risks, being beyond the control of the Company, are hereby assumed by the owner, and the carrier released therefrom." [337] This statement of the fact that the risks from the acts and condition of the horses are risks beyond the control of the defendant and are, therefore, assumed by the plaintiff, shows, if |