not this decision, I inquire, be considered as | whereof, it is now here ordered and adjudged substantially covering the whole ground of the by this court, that the judgment of the said case before us? For, after stating that the gar- High Court of Errors and Appeals reversing nishees became by the service of the summons the judgment of the Circuit Court of Jefferson the debtors of the United States, and ceased to County in this cause be, and the same is herebe the debtors of the bank, it goes on to de- by reversed, with costs, and held as entirely clare, that they owed to the United States void, and that the said judgment of the said what they owed to the bank, and nothing more; Circuit Court of Jefferson County be in all that, by the just and general principles of set- things affirmed and *remain_in_full_[*344 off, every debtor may pay his creditor with the force and virtue, the said judgment of the said notes of that creditor, which as to him are an High court notwithstanding; and that this equitable and legal tender. And by the unan- cause be, and the same is hereby remanded to imous declaration of the court, not until after the said High Court of Errors and Appeals, to the claim against the garnishee was carried in- be proceeded with in conformity to the opinion to a judgment, and after the allowance of all of this court, and as to law and justice shall rights of tender and set-off in the notes of the appertain. bank, could payment be coerced from him in any other medium than the notes of the bank. One half the court deemed the garnishee, even after judgment, entitled to the same privileges against the creditor of the bank which he pos- THE NEW JERSEY STEAM NAVIGATION 343*] sessed against the bank itself. COMPANY, Respondents and Appellants,

*

This

V.

Libelants.

Common carrier-owner of specie, employing expressman to carry may maintain suit for loss against owners of steamboat, contracted with by expressman-owner's rights controlled by such contract-stipulation that carrier is not responsible for loss, does not excuse from ordinary care-U. S. courts, admiralty jurisdiction over libels.

right, as between note holders and the assignees of a failing or insolvent bank, is fully sustained by the Court of Appeals of Maryland THE MERCHANTS' BANK OF BOSTON, in the case of The Union Bank of Tennessee v. Elicot, Morris, & Gill, 6 Gill & Johns. 364, and in that of The Bank of Maryland v. Ruff, 7 Ib. 448, in which last case the authority of this court is relied on. But, at all events, the principles of these decisions are broad enough to vindicate the legislation of Mississippi, and the objects of that legislation, against the imputation of oppression or hardships as respects these plaintiffs, and all who may occupy a similar position, if legislation can need vindication or apology, the purposes of which are to prevent, if possible, the paper of these corporations, spread over the community by them, from utterly perishing on the hands of the note holder, and to disappoint dishonest combinations to set the public laws at defiance, and, further, to oppress and ruin the note holder by taking his property, and leaving him the worthless and false and simulated representatives of an equivalent.

I am of the opinion that the judgment of the Supreme Court of Mississippi should in both these cases be affirmed.

Order.

The Planters' Bank v. Sharp et al. This cause came on to be heard on the tranThis cause came on to be heard on the transcript of the record from the High Court of Errors and Appeals of the State of Mississippi, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said High Court of Errors and Appeals in this cause be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said court, to be proceeded with in conformity to the opinion of this court, and as to law and justice shall appertain.

Order.

Baldwin et al. v. Payne et al.

This cause came on to be heard on the transcript of the record from the High Court of Errors and Appeals of the State of Mississippi, and was argued by counsel; on consideration

A decree of the Circuit Court of Rhode Island affirmed, which was a judgment upon a libel in loss of specie carried in their boat by one of the personam against a steamboat company for the persons called "express carriers," and lost by fire in Long Island Sound.

T

HIS was an appeal from the Circuit Court of the United States for the District of Rhode Island, in the exercise of admiralty jurisdiction.

In February, 1839, the State of New Jersey chartered a company by the name of The New Jersey Steam Navigation Company, with a capital of five hundred thousand dollars, for the purpose of purchasing, building, repairing, and altering any vessel or vessels propelled by steam, and in the navigation of the same, etc., etc.; under which charter they became proprietors of the steamboat Lexington.

On the 1st of August, 1839, the following agreement was made:

1st day of August, A. D. 1839, in the city of "This agreement, made and entered into this New York, by William F. Harnden, of Boston, Massachusetts, on the one part, and Ch. Overing Handy, President of the New Jersey Steam Navigation Company, of the other part, wit

nesseth:

"That the said William F. Harnden, for and in consideration of the sum of two hundred and

NOTE. From what liability a contract, that a common carrier is not to be responsible for loss or damage, exonerates.

A special contract between the owner of goods liability of the latter, is valid. and a common carrier, limiting the common law Davidson v. Graham, 2 Ohio St. 131; Nicholson v. Willan, 5 East.

fifty dollars per month, to be paid monthly to | letters and papers, nor to carry any powder, the said New Jersey Steam Navigation Com- matches, or other combustible materials of any pany, is to have the privilege of transporting kind, calculated to endanger the safety of said in the steamers of said company, between New boats, or the property or persons on board of York and Providence, via Newport and Ston- them. ington, not to exceed once on each day, from New York and from Providence, and as less frequently as the boats may run between and from said places, one wooden crate, of the dimensions of five feet by five feet in width and height, and six feet in length (contents unknown), until the 31st of December, A. D. 1839, and from this date.

"The following conditions are stipulated and 345*] agreed to, as *part of this contract, te wit: The said crate, with its contents, is to be at all times exclusively at the risk of the said William F. Harnden; and the New Jersey Steam Navigation Company will not, in any event, be responsible, either to him or his employers, for the loss of any goods, wares, merchandise, money, notes, bills, evidences of debt, or property of any and every description, to be conveyed or transported by him in said crate, or otherwise, in any manner, in the boats of the said company.

"And that this contract may be at any time terminated by the New Jersey Steam Navigation Company, or by the said Harnden, upon one month's notice given in writing.

"Further, that a contract made by the said Harnden with the Boston and New York Transportation Company, on the 5th day of July, A. D. 1839, is hereby dissolved by mutual consent.

"In witness whereof, the said William F. Harnden has hereunto set his hand and seal, and the president of the said New Jersey Steam Navigation Company has hereto affixed his signature and the corporate seal of the company. "Wm. F. Harnden, [L. S.] "Ch. Overing Handy, President. "Sealed and delivered in presence of

"Roswell E: Lockwood."

It is proper to remark, that, prior to the date of this agreement, Harnden had made a similar one with the Boston and *New [*346 "Further, that the said Harnden is to attach York Transportation Company, which became to his advertisements, to be inserted in the pub- merged in the New Jersey Steam Navigation lic prints, as a common carrier, exclusively re- | Company on the 1st of August, 1839. Harnsponsible for his acts and doings, the following den, having begun to advertise in the newspanotice, which he is also to attach to his re- pers in July, 1839, whilst his contract with the ceipts or bills of lading, to be given in all cases Boston Company was in force, continued to use for goods, wares, and merchandise, and other the name of that company in the following adproperty committed to his charge, to be trans-vertisement, which was inserted in two of the ported in said crate or otherwise: Boston newspapers until the end of the year 1839.

""Take notice,-William F. Harnden is alone responsible for the loss or injury of any articles or property committed to his care; nor is any risk assumed by, nor can any be attached to, the proprietors of the steamboats in which his crate may be, and is transported, in respect to it or its contents, at any time.'

"Boston and New York Express Package Car. -Notice to Merchants, Brokers, Booksellers, and all Business Men.

"Wm. F. Harnden, having made arrangements with the New York and Boston Transportation, and Stonington and Providence Railroad companies, will run a car through from Boston to New York, and vice versa, via Ston

"Further, that the said Harnden is not to violate any provisions of the postoffice laws, nor to interfere with the New Jersey Steamington, with the mail train, daily, for the purNavigation Company in its transportation of

507; Grace v. Adams, 100 Mass. 505; 1 Am. Rep. 131 Derwont v. Loomee, 21 Conn. 246.

:

It was formerly held that such a contract was against the policy of the law, and void. Cole v. Goodwin, 19 Wend. 751; Gould v. Hill, 2 Hill, N. Y. 623; Jones v. Voorhies, 10 Ohio, 145; Fish v. Chapman, 2 Kelly (Ga.) 349; Wyld v. Pickford, 8 Mees. & W. 443; Hinton v. Dibbin, 2 Q. B. 646.

But the doctrine of these cases has been expressly overruled. Dorr v. Steam Nav. Co. 4 Sandf. N. Y. 136; S. C. 8 N. Y. Leg. Obs. 345; S. C. 11 N. Y. 1 Kern, 485; Parsons v. Monteath, 13 Barb. 353; Mercantile Mut. Ins. Co. v. Chase, 1 E. D. Smith, N. Y. 115; Austin v. Manchester Railway Co. 11 Eng. Law & Eq. 506; Carr v. Lancashire Railway Co. 7 Ex. 707; 14 Eng. Law & Eq. 340; Peek v. North Staffordshire Railway Co. 10 H. L. Cas. 473, 494.

And the validity of an express contract between the owner of goods and a carrier, limiting the general responsibility of the latter, is well established. Kimball v. Rutland R. R. Co. 26 Vt. 256; Wallace v. Matthews, 39 Ga. 617; Reno v. Hogan, 12 B. | Mon. Ky. 63; Roberts v. Riley, 15 La. Ann. 103; | Mobile R. R. Co. v. Weiner, 49 Miss. 725; Camden R. R. Co. v. Baldauf. 16 Penn. St. 67; Falkenau v. Fargo, 55 N. Y. 642; Walker v. York R. R. Co. 3 Car. & Kir. 279; Slim v. Northern R. R. Co. 26 Eng. Law & Eq. 297; 14 C. B. 297.

A common carrier may limit his common law liability as insurer; but there must be an express agreement, not a mere notice, and the limitation cannot extend to exempt him from damages for actual negligence of himself or his servants. The Pacific, Deady, 17; Phila R. R. Co. v. Derby, 14

pose of transporting specie, small packages of How. 486; The York Company v. Central Railroad, 3 Wall. 107; Walker v. The Transportation Co. 3 Wall. 150; Express Company v. Komitze Brothers, 8 Wall. 342; Railroad Company v. Manf. Co. 16 Wall. 318; Steamboat New World v. King, 16 How. 469; Mobile and Ohio R. R. Co. v. Hopkins, 41 Ala. 486.

And the fact that the bill of lading contains words limiting the liability is not enough, without proof that the consignor assented. The Pacific, Deady, 17; Bostwick v. Baltimore and Ohio R. R. Co. 45 N. Y. 712; Hill v. Syracuse R. R. Co. 8 Hun, 296.

But these exemptions from liability by contract must be such only as are just and reasonable in the eye of the law. Statute 17 & 18 Vict. ch. 31, sec. 7; Peed v. North Staffordshire Railway Co. 10 H. L. Cas. 473, 493; Railroad Co. v. Lockwood, 17 Wall. 357; S. C. 10 Am. Rep. 366.

So, a common carrier cannot, by notice or special contract, limit his liability so as to exonerate him from responsibility for his own negligence or misfeasance, or that of servants and agents. Laing v. Colder, 8 Penn. 179; Camden and Amboy R. R. Co. v. Baldaul.. Penn. St. 67; Goldey v. Pa. R. R. Co. 30 Penn. St. 242; Pa. R. R. Co. v. Henderson, 51 Penn. St. 315; Farnham v. Camden R. R. Co. 55 Penn. St. 53; Empire Transf. Co. v. Wamsutta Oil Co. 63 Penn. St. 14; 3 Am. R. 515; Knowlton v. Erie R. R. Co. 19 Ohio St. 260; 2 Am. Rep. 395; Graham v. Davis, 4 Ohio St. 362; Welsh v. Pittsburgh R. R. Co. 10 Ohio St. 75; Jones v. Voorhies, 10 Ohio, 145; Fillebrown v. G. T. Railway Co. 55 Me. 462; Sager v. Portmouth, 31 Me. 228; Michigan Southern R. R. Co. v. Heat

"Received of Steamer

on board the

goods, and bundles of all kinds. Packages "New Jersey Steam Navigation Company. sent by this line will be delivered on the following morning, at any part of the city, free of charge. A responsible agent will accompany the car, who will attend to purchasing the goods, collecting drafts, notes, and bills, and will transact any other business that may be intrusted to his charge.

"Packages for Philadelphia, Baltimore, Washington, New Haven, Hartford, Albany, and Troy, will be forwarded immediately on arrival in New York.

"N. B.-Wm. F. Harnden is alone responsible for any loss or injury of any articles or property committed to his care; nor is any risk assumed by, or can any be attached to, the Boston and New York Transportation Company, in whose steamers his crates are to be transported, in respect to it or its contents, at any time."

The above mentioned contract with the New Jersey Steam Navigation Company being about to expire, Harnden addressed letters, on the 7th and 16th of December, to the President, expressing a desire to renew it, and, on the 31st of December, received a letter from Mr. Handy, the President, renewing the contract for one year from the 1st of January, 1840.

The New Jersey Company also published the following notice:

"Notice to Shippers and Consignees. "All goods, freight, baggage, bank bills, specie, or any other kind of property, taken, shipped, or put on board the steamers of the New Jersey Steam Navigation Company, must be at the risk of the owners of such goods freight, baggage, etc.; and all freight consisting of goods, wares, and merchandise, or any other property landed from the steamers, if not 347*] taken away from the wharf without delay, will be put under cover at the risk of the owners of said goods, freight, baggage, etc., in all respects whatsoever."

master, marked and numbered as in the margin, to be transported to and there to be delivered to or assigns, danger of fire, water, breakage, leakage, and all other accidents excepted; and no package whatever, if lost, injured, or stolen, to be deemed of greater value than two hundred dollars. "Freight as customary with the steamers on this line.

"N. B.-The company are to be held responsible for ordinary care and diligence only in the transportation of merchandise, and other property, shipped or put on board the boats of this line. "Dated at the 18-. "(Contents unknown.)"

In January, 1840, Mr. Harnden received from the Merchants' Bank in Boston a large amount of checks and drafts upon New York, which he was to collect in specie, and transmit the proceeds to Boston.

On the 13th of January, 1840. the sum of eighteen thousand dollars, in gold and silver coin, was shipped by William F. Harnden, and received on board of the steamboat Lexington, said boat being the property of the New Jersey Steam Navigation Company, and employed in making regular trips between New York and Stonington in Connecticut. The shipment was made at New York. The boat left New York about half past four o'clock in the afternoon, and in the course of a few hours a fire broke out, which totally destroyed the boat, the lives of nearly all the passengers and crew, and the property on board. The money, amongst the other property, was lost. As the circumstances under which the loss took place were much commented on in the argument, it may be proper to insert the narrative of Stephen Manchester, the pilot, who was examined as a wit

The bills of lading, or receipts given by theness: company, were in the following form:

on, 37 Ind. 448; Adams Express Co. v. Fendrick, 38 Ind. 150; Ohio & Miss. R. R. Co. v. Selby, 47 Ind. 471; 17 Am. Rep. 719; School District, etc., v. Boston R. R. Co. 102 Mass. 552; Adams Express Co. v. Stettanen, 61 III. 184: 14 Am. Rep. 57; Nashville R. R. Co. v. Johnson. 6 Heisk. Co. v. Johnson. 6 Heisk. (Tenn.) 271; Ketchum v. American Express Co. 52 Mo. 390; N. O. Mut. Ins. Co. v. N. O. R. R. Co. 20 La. 302; Southern Express Co. v. Moon, 39 Miss. 822; Steele v. Townsend, 37 La. 247; Berry v. Cooper, 28 Ga. 543; Swindler v. Hilliard, 2 Rich. (S. C.) 286; Flinn v. Phil. etc. R. R. Co. 1 Houst. (Del.) 469 Parsons v. Monteath, 13 Barb. 353; Moore v. Evans, 14 Barb. 523.

That a common carrier may exempt himself by contract from liability for loss occasioned by ordinary negligence has been held in following cases: Balt. & Ohio R. R. Co. v. Brady, 32 Md. 328; Ashmore v. Pa. etc. Co. 4 Dutch. (N. J.) 180; Lawrence v. N. Y. etc. R. R. Co. 36 Conn. 63: Peck v. Weeks, 34 Conn. 145; Hawkins v. G. W. R. R. Co. 17 Mich. 57, 427; Adams Express Co. v. Haynes, 42 Ill. 89, 458; Mann v. Birchard, 40 Vt. 326 ; Kimball v. R., etc., R. R. Co. 20 Vt. 427.

So in New York it has been held that a common carrier may stipulate the exemption from losses through his own negligence or that of his servants. Mangin v. Dinsmore, 56 N. Y. 168: Poucher v. New York Central R. R. Co. 49 N. Y. 263; Knell v. U. S. B. Steamship Co. 1 Jones & Sp. 423.

Contract limiting liability is valid if free from fraud or imposition. Dana v. N. Y. C. R. R. Co. 50 How. 428.

Where upon delivery of goods and before shipment carrier delivers a bill or receipt, limiting his

"To the third interrogatory he saith: She liability, and shipper receives same without objection, he is chargeable with notice of its contents, and is bound by its terms; and prior parol negotiations in regard to immediate shipment of goods. cannot be resorted to, to vary its terms. Hill v. Syr. Bing. & N. Y. R. R. Co. 73 N. Y. 351; S. C. 29 Am. R. 163: Rev'g 8 Hun, 296; to the same effect, Kirkland v. Dinsmore, 62 N. Y. 171: S. C. 20 Am. R. 475; Germania F. Ins. Co. v. Memphis. etc. C. R. R. Co. 72 N. Y. 90; S. C. 28 Am. R. 113: Soumet v. Nat. Exp. Co. 66 Barb. 284.

Contract should not be held to include negligence from general words, nor will it be so construed unless expressed in unequivocal terms. Mynard v. Syr. Bing. & N. Y. R. R. Co. 71 N. Y. 180; S. C. 27 Am. R. 28; Rev's 7 Hun. 399; Nicholas v. N. Y. C. & H. R. R. R. Co. (Ct. of App.) 15 Week. Dig. 20.

If the general words can be given effect without including negligence, contract will not release from it. Holsapple v. Rome, W. etc. R. R. Co. 86 N. Y. 275; Mynard v. Syr. Bing. & N. Y. R. R. Co.

sunra.

Where the carrier by contract limits his liability to a certain amount, unless the value of goods is stated at time of shipment, silence as to value on part of shipper, although no inquiry is made by carrier, and no artifice used to deceive him or conceal the value, will operate to relieve him from liability for ordinary negligence beyond the amount limited. Maguin v. Dinsmore, 70 N. Y. 410; S. C. 26 Am. R. 608; Aff's 40 N. Y. Supr. Ct. 512, & 42 N. Y. Supr. Ct. 16; S. C. 60 N. Y. 35; 20 Am. R. 442; 50 How. 457 see, also, 51 N. Y. 166; 57 N. Y. 1; 4 Daly N. Y. 490.

Boston do allege and articulately propound as follows:

"Sixth. That the said New Jersey Steam Navigation Company are possessed of certain personal property within the said Rhode Island district, and within the ebb and flow of the sea, and within the maritime and admiralty jurisdiction of this court, to wit, of the steamboat called the Massachusetts, her tackle, apparel, furniture, and appurtenances, and of other personal property.

"Seventh. That all and singular the prem

"Fifth. That by reason of the destruction of the said steamboat Lexington, and of the "First. That the respondents, in the month said gold coin and silver coin, the libelants of January, in the year of our Lord one thou-have sustained damage to the amount of twensand eight hundred and forty, were common ty-five thousand dollars. carriers of merchandise on the high seas from the city of New York, in the State of New York, to Stonington, in the State of Connecticut, and were then owners of the steamboat Lexington, then lying at the port of New York, in the State of New York, and which vessel was then used by the respondents as common carriers, as aforesaid, for the transportation of goods, wares, and merchandise on the high seas from the said port of New York to the said port of Stonington, in the State of Connecticut.ises are true, and within the admiralty and "Second. That the complainants, on the maritime jurisdiction of this court; in verificahigh seas, and within the ebb and flow of the tion whereof, if denied, the libelants crave leave tide, and within the admiralty and maritime to refer to the depositions and other proof to be jurisdiction of the United States and of this by them exhibited in the cause. Wherefore, court, on the thirteenth day of January, A. D. the libelants pray that process, in due form of 1840, contracted with the respondents for the law, according to the course of admiralty and transportation, by water, on board of the said of this court in causes of admiralty and marsteamboat Lexington, from the said port of itime jurisdiction may issue against the reNew York to the said port of Stonington, of spondents, and against the said steamboat Mascertain gold coin, amounting to fourteen thou-sachusetts, her tackle, apparel, furniture, and sand dollars, and of certain silver coin, amount- appurtenances, *or any other property [*352 ing to eleven thousand dollars, to the libelants to the respondents belonging within the said belonging; and the said respondents then and Rhode Island district; and that the said propthere, for a reasonable hire and reward, to be erty, or any part thereof, may be attached and paid by the libelants therefor, contracted with held to enforce the appearance of the respondthe libelants that they would receive said gold ents in this court to answer the matters so arcoin and silver coin on board of the said steam- ticulately propounded, and to answer the damboat Lexington, and transport the same therein ages which may be awarded to the libelants on the high seas from said New York to said for the causes aforesaid; and that this court Stonington, and safely deliver the same to the would be pleased to pronounce for the damages libelants. aforesaid, and to decree such damages to the libelants as shall to law and justice appertain.

"Third. That the. libelants, on the said thir351*] teenth day of *January, A. D. 1840, at On the same day, a monition and attachment said New York, delivered to the said respond- were issued, directing the steamboat Massachuents on board of the said steamboat Lexington, setts, her tackle, apparel, furniture, and appurthen lying at said New York, and within the tenances, or any other property to the respondebb and flow of the tide, and within the ad-ents belonging, within the Rhode Island dismiralty and maritime jurisdiction of the Unit-trict, to be attached. All of which was done. ed States and of this court, and the respondents In May, 1842, the respondents filed their anthen and there received on board of said steam-swer, which is too long to be inserted. The boat the said gold coin and silver coin, for the purpose of transporting the same by water on the high seas from said New York to said Stonington, and to deliver the same to the libelants as aforesaid.

substance of it was—

1st. They admitted the ownership of the Lexington, and her being used for the transportation of passengers, goods, wares, and merchandise between New York and Stonington.

2d. They denied any contract whatever with the libelants.

mentioned in a previous part of this statement.

"Fourth. That the steamboat Lexington sailed from said port of New York, with the said gold coin and silver coin on board, on said 3d. They denied that the libelants ever thirteenth day of January, A. D. 1840, and shipped, or that the respondents received from bound to the said port of Stonington; yet the the libelants, any gold and silver coin whatever. respondents, their officers, servants, and agents, 4th. They asserted that whatever goods so carelessly and improperly stowed the said were received on board the Lexington were regold coin and silver coin, and the engine, fur-ceived under the advertisements and notices nace, machinery, furniture, rigging, and equipments of the said steamboat were so imperfect and insufficient, and the said respondents, their officers, servants, and agents, so carelessly, improperly, and negligently managed and conducted the said steamboat Lexington during her said voyage, that, by reason of such improper stowage, imperfect and insufficient engine, furnace, machinery, furniture, rigging, and equipments, and of such careless, improper, and negligent conduct, the said steamboat, together with the said gold coin and silver coin to the libelants belonging, were destroyed by fire on the high seas, and wholly lost.

5th. That the usage and custom of the company was to be held responsible for ordinary care and diligence only; and that this usage, being well known to the libelants, constituted a part of the contract of shipment.

6th. That the bill of lading, heretofore mentioned, was a copy of all the bills of lading given by the company, which was well known to the libelants.

7th. That the notice above mentioned was posted up on board the steamboat, and on the wharf, and in the office of the company, of which facts the libelants were informed.