hire, but the private carrier without reward is responsible for the loss of a package intrusted to him, under the circumstances supposed, if the defendant is responsible for the loss of the package claimed in this case. The private carrier for hire is responsible for losses and injuries occasioned by want of ordinary care on his part, or on the part of his servants; and a private carrier without pay is responsible, if not for want of ordinary care, certainly for gross neglect. It cannot be maintained with the least show of reason that the Louisville and Nashville railroad was any more the servant of the defendant in transporting the package sued for in this case, than it is the servant of the carrier for hire, and the carrier without hire, in the cases supposed, and if these last are not responsible for the neglect of the servants of the railroad company, it is impossible to conceive that the defendant is responsible for such neglect. The counsel for the plaintiff attempt to escape this conclusion by insisting that, though the defendant limited its responsibility, it still remains a common carrier, and that such carrier is responsible not only for any want of negligence of himself and his servants, but for the negligence of any agency which he may employ in his business. This proposition is misleading. It is not strictly correct to say that a common carrier is responsible for the negligence of any agency in his business, or even for his own negligence or that of his servants, in the sense in which his responsibility is distinguished from the responsibility of another person. A common carrier is bound to deliver goods intrusted to him, unless prevented by the owner, the act of God, or the public enemy. He is, as the law terms him, an insurer for the safe carriage and delivery of goods, subject only to the exceptions above mentioned. If he does not deliver goods intrusted to him, he is responsible, not because the goods were lost by his neglect, or the neglect of a servant, or by the neglect of some agency which he employed, but because he insured their delivery. His responsibility is wholly independent of the neglect of any one. If goods delivered to him to be carried are lost while in his, or his servants' custody, or while in the custody of some other person who is not his servant, he is equally responsible, not because he is liable upon any principle of law for the negligence of any person who is not his servant, but because he is bound by law to carry and deliver safe all goods delivered to him unless prevented as before stated, by the owner, the act of God, or the public enemy. If he has limited his responsibility by special contract, and the loss has been occasioned by the cause excepted in the contract, then the owner in order to charge him must show that though the loss arose directly from the cause excepted, that cause itself was occasioned by the neglect of the carrier. But, when a public or private carrier is sought to be charged with a loss occasioned by his neglect, when neglect is the foundation of plaintiff's claim, I am not aware that he is liable for any negligence, except upon the same principles, and under the same circumstances, that any other person is liable. I am not aware that he, more than any one else, can be made responsible for the negligence of persons who are not his servants. Undoubtedly the defendant did, notwithstanding its contract, continue to be a common carrier, but its responsibility was limited to that of an ordinary bailee for hire. Now, an ordinary bailee for hire is responsible for only ordinary care, and liable for the neglect of himself or his own servants, and not for the neglect of persons over whom he has no control. Consequently he is not responsible for a loss occurring under the circumstances presented in this case. If it be admitted that the common carrier has by his contract limited his responsibility to that of an ordinary bailee for hire, then it cannot be consistently insisted upon that he shall be held liable as a common carrier who has made no express contract. To admit the contract, and to deny any effect to it, is too much for one proposition. The proposition of counsel, reduced to its essence, is simply this, that though the defendant has, by special contract, limited its responsibility to that of a private bailee for hire, it is still responsible as a common carrier. A proposition involving so obvious a contradiction cannot require further exposure. CURRENT TOPICS. We understand that a certain pamphlet, purporting to give a list of the general terms of the Supreme Court, states that there is to be a General Term at Binghamton on the first Tuesday of September. This is erroneous as appears from the official notice in the Secretary of State's office, from the "red book," and from the "Evening Journal" Almanac. The term is to be held at Binghamton on the second Tuesday of September. In the London Law Journal, in a conspicuous position, is to be found the advertisement of the “Legal and General Life Assurance Society," a company which was founded in 1836. The present trustees of this remarkable society are the Lord Chancellor of England, Lord Hatherley, Lord Coleridge and others. Among the directors are Vice-Chancellor Bacon, Attorney-Gen. Baggallay, and Sir Montague E. Smith. This association is probably found to be useful and honorable in England, where organization is as much a habit of the profession as "flocking together" is a habit of birds. A life insurance company for the particular benefit and patronage of the legal profession is one of the things which the American lawyer has not yet been brought to consider with serious ness. The Brussels Congress lingers along in spite of the adverse criticism and sentiment which it has had to endure. Of course the practical, definite results of the Congress will not be considerable. A writer has well said that "a congress can only ratify what universal public sentiment already sanctions, and one may almost say, what universal usage has long practiced; but principles which have this degree of validity can be little strengthened by a Congress." Nevertheless it is impossible not to see in these international congresses, official and non-official, the elements of closer international organization and the foundation stones of a grand structure of international codification. It seems that the courts are willing to sustain those who practice the musical art, even if the music is not of such a quality or made at such times as to please everybody. In Sadley v. Casey, a case argued re cently before Judge Donohue, in New York city, the question whether midnight music was a nuisance was considered. The plaintiff asked for an injunction against such music; and it appeared from the affida number of his immediate neighbors, living closer to him than the plaintiff. It further appeared that the saloon was in operation before plaintiff took her house, and that she then knew the character of the performances carried on there. After argument by counsel, Judge Donohue denied the motion for an injunction, holding that, under the well-settled law applicable in such cases, all the equities of the complaint and accompanying affidavits having been fully met and denied by the papers presented on the part of the defendant, an injunction was improper." NOTES OF CASES. In Imperial Fire Insurance Co. v. Murray, 73 Penn. St. 13, an important question in the law of insurance was decided. It appeared that an insurance was effected on a coal-breaker, etc., by the lessee of a colliery, the insurance to cover the "working-inter est." The lessee was bound, by the terms of the etc., were burned. Held, that the insurance covered the property, although by the falling of the slope the use of the property was reduced in value to an amount less than the amount insured. vits read in support of the motion for the injunction, that plaintiff kept a boarding-house and defendant kept a saloon, the rears of both premises coming together. Plaintiff alleged that defendant had nightly negro-minstrel performances, continuing until after midnight; that the performances were accompanied with loud applause; and that in consequence many of plaintiff's boarders left. We are told that defendIn Black v. Burlington, etc., Railroad Co., 8 West. ant answered by opposing affidavits claiming his place Jurist 485, the Supreme Court of Iowa decided a to be a public benefaction; "that it is about the only question as to the relative rights of railroad trains and place in that portion of the city where a poor man highway travelers at crossings. This was an action can go in, sit down, smoke his cigar or his pipe, wash to recover for injuries resulting from defendant's railthe dust down his throat with a glass of lager, and at road train striking a wagon, in which plaintiff was the same time listen to 'consoling and elevating riding, while crossing the defendant's track. The music;' that his four colored artists 'are of high | judge charged the jury as follows: "The rights of a reputation in their line,' and effectively render the traveler upon a highway at a railroad crossing are best compositions of the great masters, including not subordinate to those of the railroad, nor superior 'Yankee Doodle' as an overture, and 'Home, Sweet to them, but equal, one having the same right as the Home' just at the proper hour; that his perform- other, and both are bound to use ordinary care to ances are not attended by any disorderly conduct or avoid injury of one to the other. And railroad comcharacters, nor are they unusually boisterous; that, panies in running their cars across public highways on the contrary, they are patronized by gentlemen of are bound to regulate their speed and give such sigthe very highest respectability, including merchants, nals as are required by ordinary care, that persons lawyers, journalists, artists, and such like, and includ-passing may be apprised of the danger, and omission ing such exacting critics in musical performance as to do so is evidence of negligence." The court on James Gordon Bennett, Hugh Hastings, Jerome Buck, and others equally eminent; that plaintiff's boarders,❘ instead of evincing feelings of repugnance to his performances, were accustomed to get out on the roof of an adjoining house, and enjoy such performances free of charge, and that to relieve the mind of plaintiff herself, he had voluntarily consented to close the musical accompaniment of his business at midnight. The defendant was fortified in his theory that his place was not a nuisance, and not the resort of bad characters by the affidavits of the ward detective and a appeal held this charge to be theoretically correct. It was modified by an instruction holding that "if the plaintiff did hear or see the cars, and knew where the track was, and by the exercise of ordinary care could have seen and heard the train, and failing to exercise such care, attempted to cross the railroad track without using precaution to satisfy himself of safety, he was negligent and cannot recover." The language of Warner v. N. Y. Cent. R. R. Co., 44 N. Y. 465, was approved by the Appellate Court, viz.: "The citizen must yield the right of way at the crossing. The traveler who should drive his carriage upon the THE RIGHTS AND DUTIES OF CARRIERS AS WAREHOUSEMEN. track when he saw the approach of a train would bring injury on himself, if a collision occurred, and would have no just claim for the recovery of damages." In all such cases the rights of the traveler and the train are to be determined by the law of negligence. Theoretically the rights of the two are equal; but practically the train has the advantage in not being so easily managed and restrained as the traveler's person or his vehicle. Richard v. Brehm, 73 Penn. St. 140, is another contribution to the adjudications in the United States holding that marriage need not be formal in order to be legal, at least for some purposes. In this case defendant cohabited with a woman for many years, calling each other husband and wife in presence of others and executing deeds with acknowledgments as such. She made a will naming herself his wife and devising property to him as her husband. She made a subsequent will devising her real estate to plaintiff who, after the death of the testatrix, brought an action of ejectment against defendant. Defendant claimed possession as tenant by curtesy, and the validity of the marriage was brought in issue. Defendant admitted in his testimony that he and the testatrix were never married with the ordinary ceremonies, but that they mutually agreed to live together and to keep it a secret that they were not married. The judge charged that the facts constituted a marriage as to all the world, in matters pertaining to business transactions, but not as between themselves, and consequently defendant could not hold the property as tenant by curtesy. But the court on appeal held that the judge erred in taking the case from the jury, and saying that this was not a marriage as to defendant and the testatrix. While the Appellate Court was probably correct in its holding, yet it must be admitted that the present laws in regard to marriage in most of the United States are unsatisfactory in their workings. And there is some force in the remarks of the judge who delivered the charge in the subordinate court when he says, "the defendant ought not to expect immunities from the responsibilities of married life and possess its benefits also. For instance, under the facts disclosed he could not have been made to suffer the penalties of bigamy if he had married another woman during his supposed wife's life, nor be punished for adultery if he had committed that crime, for in these cases actual, not presumptive, marriage must be proved." The laws passed during the last session of Congress have been put in type, and presswork will be begun as soon as the index, now preparing at the State Department, is ready, which will be in a few days. The laws are unusually long this session, and judging from the many calls for them from all parts of the country, are unusually important. Two questions of great interest to common carriers in general, and to railway companies in particular, arose in the late case of The Great Northern Railway Company v. Swaffield, L. R., 9 Ex. 132; 30 L. T. Rep. N. S. 562. This was an appeal from a judgment of the Bedfordshire County Court. On the 5th of July, 1872, Swaffield sent a horse directed to himself at Sandy Station, by the above company's railway, the fare being prepaid. The horse arrived at night, and there being no one at the station to receive it, it was sent to a neighboring livery stable, as the plaintiffs had no stable accommodation on the spot. Soon after defendant's servant demanded the horse. He was directed to the livery stable keeper, but declined to pay the charges demanded before delivery. Thereupon the horse was denied him. The charges were admitted to be reasonable. Next day defendant himself made the sanie demand, but he would not allow the stationmaster to pay the charges, refusing to recognize the livery stable keeper in any way. The company afterward offered to deliver the horse to defendant free of all charges. He refused this offer also, and insisted upon his right to have compensation for the expenses he had incurred, as well as for his loss of time. In the course of a few months the company paid the livery stable keeper's bill, amounting to £17, and sent the horse to defendant, by whom it was received. The company then brought an action in Bedford County Court to recover the sum of £17, and on judgment being given for the defendant, carried the case on appeal to the Court of Exchequer, where this judgment was reversed. The grounds upon which the decision of this court was given may be gathered from the succinct statement in Baron Pollock's judgment: "If the case had rested on what took place on the night when the horse arrived, I should have thought the plaintiffs wrong, for this reason, that although a common carrier has, by the common law of the realm, a lien for the carriage, he has no lien in his capacity as warehouseman; and it was only for the warehousing or keeping of this horse that the plaintiffs could have made any charge against the defendant." Here we have also a statement of the two questions referred to above: First, can a carrier by land make any charge as warehouseman? Secondly, has a carrier any lien for such charges? On the first point there appears to be no direct authority; but in the case of Notara v. Henderson, L. R., 7 Q. B., an analogous question was fully debated. In that case the plaintiffs shipped a quantity of beans on the defendant's ship from Alexandria to Glasgow. The ship called at Liverpool, and in going out met with a collision, which detained her for a few days. By reason of the collision the beaus were wetted by sea water, and the plaintiffs, who were at Liverpool, offered to receive them, and pay freight pro rata. The offer was refused, and the beans were carried to Glasgow. There it was discovered that they were much depreciated in value, and that much of this depreciation was due to the fact that they had not been dried after the collision. The plaintiffs accordingly brought an action against the shipowners for the neglect of the master to take reasonable care of the beans by drying them at Liverpool, where there was sufficient accommodation, and where the ship had put in for repairs. In the unanimous judgment of the Court of Exchequer Chamber, delivered by the late Mr. Justice Willes, the chief authorities upon the duty of a ship's master to use reasonable care in preserving the goods intrusted to him, are gone into, and the decision arrived at is that there is such a duty. This case was cited with approbation by the Judicial Committee of the Privy Council in the case of Cargo ex Argos, L. R., 5 P. C. 134. Pigott passed over the question, simply remarking that they had not to deal with any question of lien, but Baron Pollock, whilst fully recognizing the acknowledged rights of a common carrier, distinctly stated that he had no lien in his capacity of warehouseman. On the other hand, Baron Amphlett, without expressing any decided opinion, did not wish it to be thought that he held identical views with those of Baron Pollock on this subject, "I should not wish," he observes, "to be considered as holding that in a case of this sort, the person who, in pursuance of a legal obligation, took care of a horse, and expended money upon him, would not be entitled to a lien on the horse for the money so expended." However, as these remarks of the learned judges were but obiter dicta, not necessary to support the judgment, we have yet to learn what is the law in such a state of circumstances as those described by Baron Amphlett. The several decisions referred to above will not be of much avail in elucidating the question. We do not know that any obligation was cast by the law upon the bailees, and we take it that this is really the vital point in the question of a right of lien now under investigation. If we were allowed to discuss the question upon abstract grounds, it would be no difficult matter to make our deductions, provided we were agreed upon first principles. We might, for instance, say, whoever does an act in pursuance of a legal obligation, has a specific lien for his reasonable expenses thus incurred. Here, when the circumstances arose, it would be a comparatively easy proceeding to apply the general rule to the particular facts. But this is not the way in which our English case law proceeds. Here we must seek our rules and principles by a wide generalization of decisions, and abandon the method of deduction for that of induction. After this decision had been given, it was but an ad-wi vance in the same direction to say that the same duty devolves upon carriers by land, or in other words, we might say it was but another deduction from the same general principle, if we were discussing the civil law and not the laws of England. In the case we are now considering, the question raised was whether expenses incurred by the railway company as warehousemen were incurred justifiably; whether there was any duty incumbent upon them to take reasonable precaution to prevent any damage happening to the horse after its arrival at the place of destination. This point having been settled in the affirmative, we think it a very natural result to maintain that they could recover the expenses thus cast upon them. If such were not the case their position would be a very hard one. The law tells them "under certain circumstances it is incumbent upon you to make certain outlays for the security of the bailor's goods intrusted to you for carriage." What could be more reasonable than that the bailor should reimburse them? It is not likely that this treatment will at all tend to give the bailee an advantage over the bailor, for courts of law will be able to examine into the necessity of the expenses incurred on alleged behalf of the bailor; while on the other hand, the bailor will himself have the satisfaction of knowing that the duty of the railway company does not cease with the mere arrival of the goods at the place of destination. The civil law went a step further than our law; it allowed even to the negotiorum gestor an action against the dominus to recover the expenses incurred bona fide in managing the affairs of the dominus. With respect to this second point, we shall find there are a variety of dicta and cases. In 1793 was decided the case of Lambert v. Robinson, 1 Esp. 118, which was an action of trover against a carrier. The Lord Chief Justice Eyre held that there was no lien given by law where the carrier makes a claim for booking or warehouse room. This case, however, is so briefly reported that it gives few grounds for deciding the point. In Orchard v. Rackstraw, 9 C. B. 638, it was decided that a livery stable keeper has no lien for the keep of a horse, and that a veterinary surgeon has none for his attendance. This decision has, apparently, a bearing upon the present topic. Judson v. Etheridge is another decision, by Lord Lyndhurst, that livery stable keepers have no lien for the keep of a horse. In addition to these decisions we have a very clear statement of the nature of a lien in Story's Equity Jurisprudence," a lien," he says, "is not in strictness either a jus in re, or a jus ad rem, but simply a right to possess and retain property, until some charge attaching to it is paid or discharged. It generally exists in favor of artisans and others who have bestowed labor and service on the property, in its repair, improvement, and preservation. It has also an existence in many other cases by the usage of trade, and in maritime transactions." Of the four learned judges who delivered judgment in the case of the Great Northern Railway Company v. Swaffield, three referred to this question of lien; but only one, Baron Pollock, expressed a decided opinion on the point we are now investigating. Baron It certainly will be an interesting investigation when a case in which is involved this right of lien comes into court for judgment. Equitable considerations may suggest that when the law compels a man to expend money on the goods and chattels of another, he should have the best possible security for repayment, otherwise we should find the law inflicting on one an evil which might very possibly be far greater than any corresponding advantage that would accrue as a result to another. Such legislation is certainly not to the interest of the community at large; nor would it be at all consistent with the maxims of far-seeing jurisprudents, such as Bentham and his school. Perhaps the best way of considering the matter is that adopted by those jurisprudents in their moral and legal investigations. There is a safer method than one which varies with the sympathies or antipathies of the legislator. We have some safeguard against reckless legislation if we seek to change no law until we are quite assured that the resulting good will more than counterbalance the evil that must of necessity follow from any change. We cannot go far wrong when we know how to interpret and apply the well-worn maxim, Salus populi suprema lex. If we apply such a method here, there seems good reason to hold by the opinion of Baron Amphlett. The law inflicts an evil whenever it enjoins a duty upon a man; it does more if it does not make every reparation allowed by the case. It modifies the evil, and, at the same time, introduces a counterbalance of good if it secures for the one party the preservation of his property, and for the other a good surety that the expense cast upon him by the law will be met by the person benefited, and secured by the law.-Law Times. MALICE. The difficult question of what constitutes malice has received further illustration in the case of Reg. v. Pembilton, 22 W. R. 553. The prisoner was indicted under 24 & 25 Vict., c. 97. § 51, for "unlawfully and maliciously" committing damage (exceeding £5) to property by breaking a window. In fact, he broke the window with a stone which he flung at some person standing near, but the jury negatived any intention to break the window. On a case reserved the Court of Criminal Appeal held that he had not committed an offense under the statute, though they intimated an opinion that if the jury had found that when he threw the stone he knew that it was probable it would break the window, he would have been guilty. The first thing to observe on this is that the court held that, in using the word "maliciously," the statute did not mean a general unlawful intent, but an intent to do the unlawful act of damaging property. But, in the second place, in intimating (what we have no doubt they would if necessary have held) that it would have been sufficient to bring him within the statute if he had known the damage to property to be a probable consequence of his act, and yet had done it, they say in effect that there need not be a purpose to do the damage; it is enough if there was recklessness. The decision appears to us one of great importance, for it indicates, though it does not precisely lay down, a distinction which has been hardly enough recognized in law, and which has indeed been sometimes deliberately ignored. It would not be wrong to describe this distinction as a 'distinction between the quality and the quantity of the intent. It is established law and sound reason that if a man does an act which produces what may be fairly described as a necessary consequence, that is, such a consequence as any person doing the act would necessarily foresee, it is all one as though he intended that consequence, although that consequence was not the purpose or motive of his action. In the language of the law (which, if in this respect not perfectly logical, is practically convenient and could not be easily replaced by any other way of speaking) he did intend the consequence. This is the effect of what the court in the present case intimated they would have held if the jury had found that the prisoner knew the probable consequence of his act to be the breaking of the window; and this is what the court did decide in Reg. v. Ward, 20 W. R. 392, L. R., 1 C. C. R. 356, where the prisoner was held guilty of "unlawfully and maliciously" wounding a man, though he had no malice against the particular individual, and did not even design to shoot him, but fired in his direction in such a way that the hitting of him was the natural and probable consequence of his act. The probable consequence was necessarily within his contemplation, and was recklessly disregarded. There was enough intention to make malice, though the intention was not coupled with a purpose. But, on the other hand, if the only thing intended is altogether different from the consequence which actually follows, where the actual consequence is not only beyond the purpose but beyond the contemplation of the person doing the act, where it is not only undesigned, but is not such a consequence as he may fairly be held to have foreseen as probable, then no intention to produce the consequence can be rightly attributed, and the act cannot be said to be done maliciously. Here, however, a qualification arises, which turns upon the quality or nature of the intent. If the prisoner in the case in question could fairly be held to have had in his contemplation that his throwing the stone would probably cause damage to property, we think we shall not be wrong in saying that he would have been held guilty, although the precise damage done was not that which he contemplated. If, for instance, throwing the stone recklessly in the direction of one window, the stone had glanced off and struck another window. This would be like the old and undoubted case of poison laid for A. and taken by B., or one person shot at and another killed. The quality or nature of the intent answers to the effect produced, or the consequence which follows is of the same nature and quality with that intended, though the precise operation is different. There is not a mere general intent to do an unlawful act; but there is an intent to do an unlawful act and produce an unlawful consequence of a particular kind; and an unlawful act of that particular kind is in fact done, and an unlawful consequence of that particular kind produced. It appears to us that this is a true and reasonable distinction, and the one that must ultimately prevail. And it is this distinction that is so grossly violated by the old dicta laying down that any homicide done in the course of a felonious act is murder. We have on a former occasion stated our conviction that this technical and arbitrary rule would not now be acted upon, and we are glad to observe that in the present case Blackburn and Lush, JJ., both intimate their dissent from it. Lord Coleridge, however, guards himself against being "supposed to throw any doubt upon the authorities which have been cited to show what is sufficient to constitute malice in the case of murder; they rest upon the principles of common law, and do not appear to be applicable to an offense created by statutory enactment." We cannot appreciate this reasoning. When a statute uses the term malice, it must be supposed to use it in the sense which it has acquired in law; and if a particular state of circumstances would prove malice at common law the like circumstances ought equally to prove it under the statute. It appears to us impossible that the construction of the words of a statute should not reflect back upon the construction of similar words in a branch of common law which is in pari materia with the statute. We regard the present case in that light, and look upon it as one of great and leading importance. UNITED STATES SUPREME COURT ABSTRACT.* (Continued.) TENDER. Under the act of June 7th, 1862, "for the collection of the direct tax in insurrectionary districts," etc., a tender by a relative of the owner of the tax due upon property advertised for sale is a sufficient tender. And if the tax commissioners have, by an established general rule announced and a uniform practice under it, refused to receive the taxes due unless tendered by the owner in person, it is enough if a relative of the owner "went to the office of the commissioners to see after the payment of the tax on the property, but made no formal offer to pay, because it was in effect waived by the commissioners, they declining to receive any ten From advanced sheets of 18 Wall. |