proof is on the carrier to show that the person with whom he deals is fully informed of the terms and effect of the notice. When the notice is thus brought 'home, in the absence of all contravening circumstances, it is deemed proof of the contract between the parties; and is then to be construed like every other written contract; and so far as the exceptions extend, they convert the general law into a qualified responsibility. The most usual evidence to show that the plaintiff has had notice of the defendant's terms, has been by proof that a notice was put up in the office where the goods were received and entered for the purpose of carriage, in so conspicuous a situation, that it must, (unless he were guilty of willful negligence,) have attracted the attention of the plaintiff, or his agent; and the printed conditions of a line of public coaches were held to be made sufficiently known to passengers, by being held up at the place where they book their names. But this proof fails where the party who delivers the goods at the office cannot read; and where the goods were delivered by a porter who admitted that he had frequently been at the defendant's office, and that he had seen a printed board, but did not suppose it contained anything material, and, in fact, had never read it, it was held that, although the board, in fact, contained a notice, the evidence of notice was insufficient.

"Another usual proof of notice, is by evidence, that the notice was given by printed cards, or by advertisements in the public newspapers; but this is insufficient, unless it be proved that the plaintiff has seen such cards or read the newspapers, or is accustomed to read the newspapers, so as to lay a foundation for presuming knowledge. If the carrier relies on the distribution of printed handbills, he must show that one of them was actually delivered to the owner, or to the person bringing the goods for conveyance."

The following rule, from an English case, seems to have received the full approbation of the Supreme Court of New York, in the case of Holiister vs. Nowlen :

"If coach proprietors wish honestly to limit their responsibility, they ought to announce their terms to every individual who applies at their office, and, at the same time, place in his hands a printed paper, specifying the precise extent of their engagement. If they omit to do this, they attract customers, under the confidence inspired by the extensive liability which the common law imposes upon carriers, and then endeavor to elude that liability by some limitation which they have not been at the pains to make known to the individual who has trusted them."

:

The remark of Judge Brownson, in the New York case, is as follows :

"Fraud cannot, I think, be imputed to the owner, from the mere fact that he delivers goods after having seen a general notice published by the carrier, whatever may be its purport. If the carrier wishes to ascertain the extent of his risk, he should inquire at the time the goods are delivered; and then, if he is not answered truly, he will have a defense."-See 4 Bing., 218.

It is not easy to make any general rule on the subject, from the cases cited in Mr. Angell's work. As carriers have, in general, adopted each a peculiar form of notice, the cases have been decided in reference only to, and upon a construction of, such particular notices, and a number of cases are cited in different parts of the book, which differ upon very nice grounds of distinction, if any.

"In one case, where the terms of the contract were, that cash, plate, jewels, &c., would not be accounted for, if lost, of more than £5 value, unless entered as such, and paid for,' the carrier was not held liable for any loss whatever, in case the goods exceeded the specified value, and no entry or payment of the increased value had been made. In another case, where the terms of the notice were, that no more than £5 will be accounted for for any goods or parcels delivered at this office, unless entered as such, and paid for accordingly," the plain

tiff was allowed to retain his verdict for £5, as a limited amount of damages rerecoverable by him, under the conditions of this contract."

The uncertainty in which this subject was involved, led to the passage, in England, of the act, 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 or contents of which shall not be declared to them by the owners thereof." This act is referred to, and highly commended, by Chief Justice Bronson, in the case of Hollister vs. Nowlen, who thus briefly sums up its provisions :

"The act enumerates various articles of great value, in proportion to the bulk, and others which are particularly exposed to damage and transportation, and declares that the carrier shall not be liable for the loss or injury of those articles, when the value exceeds £10, unless, at the time of delivery, the owner shall declare the nature and value of the property, and pay the increased charge which the carrier is allowed to make for his risk and care. If the owner complies with this requirement, the carrier must give his receipt for the goods, acknowledge the same to his being insured, and if he refuse to give the receipt, he remains liable and responsible at the common law. The provision extends to the proprietors of stage coaches, as well as all other carriers, and to property which may accompany the person of any passenger, as well as other goods; and the statute declares, that after the first day of September, 1830, no public notice or declaration heretofore made, or hereafter to be made, shall be deemed, or construed to limit, or in anywise effect the liability, at common law, of any carriers, but that all, and every such carrier shall be liable, as at the common law, to answer for the loss or injury of the property, any public notice or declaration by the mmade and given contrary thereto, or in anywise limiting such liability, notwithstanding. The only modification of the common law rule in relation to carriers, made by this statute, is that which requires the owner, without a special request, to disclose the nature and value of the package, when it contains articles of a particular description, the premium for care and risk the carrier might have required before. In relation to all articles not enumerated, and in relation to those, also, if the owner comply with the requirement of the act, the carrier is declared liable as an insurer, and must answer, as at the common law. The whole doctrine which has sprung up under notices, is cut up by the roots, and in such language as renders it apparent that the Legislature deems it an innovation on the law of the land."

We have confined our notice almost exclusively to the chapter on the "Limitation of Responsibility by Notices," because it is a matter of constant inquiry. We do not perceive that Mr. Angell's book presents any new principles, as having been established within the last ten years, although enumerating a number of important cases; but it is worthy of inquiry, to those who read his work, whether some enactment similar to the English statute, would not be desirable in our own country; and if our extracts on this point will only turn the attention of merchants, as well as lawyers, to the subject, they will not have been made in vain. The chapters on "Delivery," "Rights of Possession, Of Lien, and of Action for Freight," and on the pleadings and conduct of actions, are very full and complete, in citations from the latest English and American cases. There seems to be a want of conciseness, and a repetition, which has, perhaps, swelled the work to a larger size than was

necessary.

We extract the following account of the distinction between common carriers of passengers, and common carriers of goods, a subject of more interest, since the passage in New York of the act to provide compensation for death caused by neglect or malfeasance.

"The carriage of persons as passengers, for hire, in public conveyances, is comparatively of modern practice; and although suits occurred against owners of coaches, for the loss of goods, as early as the time of Lord Holt, yet the first case, it seems, to recover damages by a person for injury done to him as a passenger, was tried in 1791, before Lord Kenyon. The case referred to was White vs. Boulton, in which that learned judge, in delivering his opinion, said, "When these [mail] coaches carried passengers, the proprietors of them were bound to carry safely and properly." "To carry safely and properly," "or safely and securely," is the obligation which the law imposes upon a special carrier of goods for hire, or a common carrier of goods for hire, who is not a common carrier of goods. Common carriers of passengers, therefore, are subject to the same degree of liability as private carriers for hire, of goods, which is a liability for all consequences resulting from the want of such care as the thing, or person, under the circumstances of the case, requires. But this undertaking, whether as implied by law, or as created by an express promise, does not insure against the forcible attacks of robbers; and herein appears the difference, in respect to liability, between common carriers of passengers, and common carriers of goods. The latter, as we have seen, are responsible for all damages which do not fall within the excepted cases of the act of God and the public enemy. The policy of the law which imposes this extraordinary responsibility, it is obvious, is not applicable to the persons of passengers, although it is properly held to apply to the baggage they have with them. It is to give security to property against clandestine combination with thieves, &c.; and as the law holds a common carrier of goods to be an insurer, he is entitled, like other insurers, to demand a premium in proportion to the hazards of this employment. In the words of Chief Justice Parker, of New Hampshire, "Carriers of passengers for hire, are not responsible in all particulars, like common carriers of goods. They are not insurers of personal safety against all contingencies except those arising from the acts of God and the public enemy. For an injury happening to the person of a passenger, by mere accident, without fault on their part, they are not responsible, but are liable only for want of due care, diligence, or skill. This results from the different nature of the case; but in relation to the baggage of their passengers, the better opinion seems to be, that they are responsible, like other common crrriers of goods."

After citing a number of cases in which stage-coach proprietors have been mulcted in heavy damages, in consequence of want of proper precaution, and furious driving, the author remarks :

"It of course follows that driving so rapidly over a railroad by the servants of the company, as to amount to rashness, is equally inexcusable; and the fact of rashness will depend much on the condition of the road. What would not be an improper rate of speed over one portion of the rails, might be in another; as, for instance, where the rails are sprung, the sleepers broken, or the bridges not roadworthy. Evidence may unquestionably be given, that an injury was received by a passenger, in consequence of the improper speed with which the cars on a railroad were drawn over a spot which presents the obstructions and defects like those just mentioned." P. 515, and cases cited.

"As a steam vessel has greater power, and is more under command, she is bound always to give way to a sailing vessel.”

"We conclude the perplexed subject of liability for damage done by collision of vessels, by warning ship-owners that it is important for them to bear in mind, that, in case of collision, they will not be absolved from the duty of rendering every assistance in their power to the ship which has been in error, for the safety of her cargo, and her passengers. It is held, indeed, to be a suspicious circumstance; and the owners of the Cell, though not otherwise in fault, were condemned in all costs and expenses of the suits, because the master made no attempt to save the ship run down." P. 647.

In an appendix of some 86 pages, are given at length some of the most recent decisions in England and America, detached portions of which are cited in the text; also all the laws enacted by Congress to provide for the better security of passengers in steam vessels.

Mr. Angell is already well known to the legal profession by his works on "Water Courses, "Tide-waters," "Adverse Engagement," "Limitations," "Corporations," &c.

Since writing the foregoing, we have observed that recently, in the District Court sitting at Philadelphia, a decision was rendered in the case of Baldauff vs. the Camden and Amboy Railroad Company, under the following circumstances:

The de

The action was brought to recover damages for the contents of a passenger's trunk, which was placed in the usual baggage car, and which contained money. The plaintiff, it appears, paid for extra freight, but failed to inform the company's agent that, there was money in the trunk. The question was, whether the plaintiff could recover for the money lost. fendants proved the usual newspaper notice, limiting their responsibility for the baggage, which the court disregarded, it not being shown that the plaintiff knew of the notice, or had seen it. They also relied upon the notice on the passenger's ticket, which the court said applied only to cases of loss from accident. The defendant's counsel argued that although they would be liable for the ordinary contents of a trunk, they could not be made responsible for unusual and valuable articles, such as money, jewels, &c., unless they had notice, and it was proved that such notice had not been given. The court gave judgment for the plaintiff, on the ground that the charging and receiving extra freight for the baggage was sufficient evidence of the defendants' knowledge of the contents of the trunk.

MERCANTILE LAW CASES.

SEQUESTRATION OF MERCHANDISE-VENDOR'S PRIVILEGE.

Where A. sold certain goods for cash to B., who received them, and shipped them on a vessel commanded by C., who gave the usual bill of lading for them, consigned to D. in Philadelphia, and B. dispatched the bill of lading by mail to D., and A. then sequestered the goods on ship-board, within five days after the sale to B. held, that C. had no right to rely on the naked fact that he had signed and issued a bill of lading, and that A. having established his claim as vendor, the bad faith of his vendee, B., and a clear right to the vendor's privilege, if his interest had not been divested in favor of D., for value given bona fide D., in a contest with A., would have been driven to show the nature and circumstances of his interest, and that C., in thus undertaking D's. case, can stand in no better position. An affidavit for a sequestration, under the act of March 20, 1839, sec. 6, that does not contain the words "during the pendency of the suit," or some equivalent expressions, is bad, and the sequestration will not be sustained.

In the Supreme Court of Louisiana, (New Orleans, May 14, 1849.) Wilson & Gleason vs. Samuel Churchman, G. Gilchrist, Intervenor. Appeal from the Fourth District Court of N. Orleans, SLIDELL, J.

On the 5th January, 1848, plaintiffs made a cash sale to Churchman of a quantity of flour, which was delivered. Churchman shipped it on board a vessal commanded by Gilchrist, bound to Philadelphia. Churchman received, as shipper, a bill of lading, in the usual form for the delivery of the cargo in Philadelphia to Fleming or his assigns. After this bill of lading was despatched by mail to Philadelphia to the consignee, plaintiff commenced suit against Churchman, and seized the flour on ship board at New Orleans, under a writ of sequestration, and a claim of the vendor's privilege. The sequestration was levied on the 10th of January, and on the 11th, Gilchrist, as agent of the ship-owners, gave bond for the prop

erty, and was reinstated in its possession. On the 27th of January, Gilchrist filed a petition, by way of third opposition, in which he alleges himself to be master and part owner of the vessel. He states that the bill of lading had been given before the sequestration, and had been forwarded to the consignee; that plaintiffs had made no offer to return the bill of lading; that he is bound to deliver the flour at Philadelphia to the consignee, or whoever may be the holder of the bill, and is entitled to the possession and custody of the property in preference to plaintiffs.

The case came on to trial, as between plaintiffs and the third opponent, on the 28th of February, 1848. No application was made for a continuance. The execution of the bill of lading, and its being mailed to Fleming's address before the levy of the sequestration, were proved. Plaintiffs proved the sale of the flour, Churchman's failure to pay, and that he was in failing circumstances.

The decision of the Supreme Court is long and elaborate, and our limits compel us to condense it.

The Court observed:-If the Philadelphia consignee was neither a bona fide purchaser nor advancer, but was the mere agent of the consignor who had attempted to defraud his vendors, the consignee would have no greater right to defeat the vendor's privilege, than the vendee himself would have had. The vendors took the risk of the consignee being neither a bona fide purchaser nor advancer, and caused the goods to be sequestered. The allegations of the petition gave the captain full notice that the plaintiffs had been defrauded, and the judicial process would have excused the captain to the consignee for not delivering the goods, provided he gave the consignee prompt notice of the sequestration, and, in the meantime, took such conservative steps in the cause as would arrest the action of the court, until the consignee could come in and assert his rights. Unquestionably the court would have given time for that purpose, upon a proper application, and would also have indemnified the captain, at the plaintiff's expense, for his trouble and loss in unlading the goods, &c. *** The captain has not shown that he has delivered the goods at all to the consignee. Non constat that they are not still in his possession. At any rate, if he has delivered the goods to the consignee, he has not offered any evidence whatever to show that the consignee was rightfully entitled to receive them as against the plaintiffs. Under these circumstances, we think that the case is with the plaintiff's, and that the captain has no right to rely upon the naked fact that he has signed and issued a bill of lading. *** The plaintiffs having established their claim as vendors, the bad faith of the vendee, and a clear right to the vendor's privilege, if Churchman's interest had not been divested in favor of Fleming for value given bona fide. Fleming, in a contest with the plaintiffs, would have been driven to show the nature and circumstances of his interest. By what right can the captain undertake Fleming's case, and claim to stand in a better position? His argument for withholding the goods from the plaintiff is, that he has signed a written promise to deliver them to Fleming; but if Fleming was in bad faith, or was a mere agent, he could not have succeeded in doing what the captain insists upon doing for him.

It is very true that the right of stopping in transitu under the law merchant, which bears, in some respects, a strong analogy to the exercise of the vendor's privilege under our code, is defeated by the negotiation of the bill of lading. But this rule must be understood with this qualification; that the transferee has received it in good faith, and for value. Licklanow vs. Mason, Smith's Leading Cases, 507; Cumming vs. Brown, 9 East., 514; in re Wisby 5 B. & Al. 817; 3 Kent's Com., 216; Abbott on Ship, 514 et seq; Eden on Bankruptcy, [313,] et seq. The court below gave judgment, dismissing Gilchrist's opposition, and a motion was made by him for a new trial, which he accompanied by affidavit that he arrived at the port of New Orleans, on his return from Philadelphia, a few hours after the trial of the cause; that he could prove by a witness at Philadelphia, that he had delivered the flour to Fleming, who had received the bill of lading in due course of mail, and accepted bills to the amount of $3,000; that he had not discovered the materiality of this testimony until after his arrival here, and had no