master of the ship "might have made a caution for himself." Nearly a century intervened during which time we find no allusion to the subject until the case of Gibbon v. Paynton, in which the attempt was made to hold the carrier liable for money delivered to him concealed in a bag filled with hay, the carrier having given notice that he would not be liable for money unless informed of the fact. Lord Mansfield, as we have seen, rested his decision upon the fraud; but the other judges considered the notice as equivalent to a special acceptance, thus assuming that the carrier could in this way limit his liability. The next heard of such special acceptance was in Forward v. Pittard before the same court, in 1785, until which Burrough, J., says the doctrine of notices by carriers was never known in Westminster Hall.7

Sec. 391. (§ 228.) Same subject-Notice sufficient.-At length in 1804, in the case of Nicholson v. Willan,s the question as to the validity of such notices came up directly for decision before Lord Ellenborough, in the king's bench. The defendants, who were carriers, had put up a notice on a board in their office, of which the plaintiff knew, that they would not be liable. for any package whatever above the value of £5, unless insured and paid for at the time of delivery, and unless, if lost, its value should be demanded in one month after such damage was sustained. The parcel in question contained £58, of which no notice was given to the defendants. After a curia advisari vult, Lord Ellenborough delivered his judgment in which he said: "Considering the length of time during which and the extent and universality in which the practice of making such special acceptances of goods for carriage by land and water has now prevailed in this kingdom, under the observation and with the allowance of courts of justice, and with the sanction. and countenance of the legislature itself, which is known to have rejected a bill brought in for the purpose of narrowing

4. 4 Burr. 2298 (A. D. 1769). 5. Ante, $330.

6. 1 T. R. 27.

7. Smith v. Horne, 8 Taunt, 146. 8. 5 East, 507.

the carrier's responsibility in certain cases, on the ground of such a measure being unnecessary, inasmuch as carriers were deemed fully competent to limit their own responsibility in all cases by special contract; considering also that there is no case to be met with in the books in which the right of the carrier thus to limit his own responsibility by special contract has ever been by express decision denied, we cannot do otherwise than sustain such right, however liable to abuse and productive of inconvenience it may be, leaving to the legislature if it shall think fit to apply such remedy hereafter as the evil may require." And the judgment was that the plaintiff could not recover even the £5 which the jury had found for him. And Lord Kenyon in another case said: "When no rate is fixed by law, the carrier is entitled to say on what terms he will carry; he is not obliged to take everything that is brought to his warehouse unless the terms on which he chooses to undertake the risk are complied with by the person who employs him. The old mode of declaring used to be on the custom of the realm, but this is in assumpsit; it is founded on contract, and the contract must therefore govern the parties."9

Sec. 392. ($229.) Same subject-Extent of limitationAnything except gross negligence or misfeasance. From the time of these decisions, many cases are to be found in the English reports expressly recognizing the right of the carrier at common law to limit his liability for loss or injury to the goods, resulting from any cause whatever, even the felony of his own servants, except his own gross negligence or misfeasance, either by express contract with his employer, by special acceptance or by public notice brought to his knowledge.10 The mode resorted to, however, in the great majority of the cases was that

9. Anonymous v. Jackson, Railway, 11 Com. B. 140; Brooke Peake's Addl. Cas. 185.

10. Batson v. Donovan, 4 B. & Ald. 21; Mayhew t. Eames, 3 B. & C. 601; Maving v. Todd, 1 Starkie, 72; Leeson v. Holt, id. 186; Riley v. Horne, 5 Bing. 217; Butt v.

v. Pickwick, 4 Bing. 218; Smith v. Horne, 8 Taunt. 144; Birkett v. Willan, 2 B. & Ald. 356; Garnett r. Willan, 5 id. 53; Sleat v. Fagg, id. 342; Wyld v. Pickford, 8 M. & W. 443.

of public notice, which according to all of them, if brought to the knowledge of the owner of the goods, constituted what was called a special or qualified acceptance by the carrier, and was the contract of the parties.11

Sec. 393. (§ 230.) Considerations leading to English Land Carriers' Act. But it was, in many instances, impossible for the carrier to prove knowledge of the notice by his employer; and many questions arose as to what should be sufficient evidence that notice had come to his knowledge; whether it was to be presumed that he had seen it in a newspaper which he had been accustomed to read, or whether he had seen it posted up in the office where the carrier transacted his business. Questions also arose as to the construction to be put upon the various forms of notices. And these considerations, in connection with the frauds which were being practiced upon carriers by concealments of value and the frequent hardships upon them caused by the carelessness of their servants, induced the legislature to pass the act of 11 Geo. IV. and 1 William IV. (1830), commonly known as the English Land Carriers' Act.12

Sec. 394. (§ 231.) Summary of act.-The object of this act, as stated in its title, was the more effectual protection of carriers for hire against loss 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; and after a preamble which recites that by reason of the frequent practices 11. Those whose curiosity may in the case of Cooper v. Railroad prompt them to investigate the Co., 110 Ga. 659, 36 S. E. Rep. state of the English law upon this 240, followed the English rule and subject previous to the passage of held that a contract exempting the the English Land Carriers' Act carrier from liability excepting (1830) will find the cases cited for losses occasioned by fraud or and commented upon at length by gross negligence was neither un Bronson and Cowen, JJ., in Hol- reasonable nor illegal, and that lister v. Nowlen and Cole v. Good the carrier would be excused on win, 19 Wend. 234, 251, in The proof that slight diligence had N. Y. Cent. R. R. v. Lockwood, been exercised. 17 Wall. 357, and in Sager v. The Railway Co., 31 Me. 228.

The Supreme Court of Georgia

12. Hinton v. Dibbin, 2 Ad. & El. (N. S.) 646.

of bankers and others sending by public conveyances for hire, parcels and packages containing articles of great value in small compass, much valuable property is rendered liable to depredation, and the responsibility of such common carriers is greatly increased; and by the frequent omission of the persons sending such parcels to notify the value and nature of the contents thereof, so as to enable such carriers to protect themselves against losses, and the difficulty of fixing parties with knowledge of notices published to limit their responsibility, they have sustained heavy losses, it is enacted that no such common carrier shall be liable for the loss of or injury to any of the articles therein named above the value of £10, not occasioned by the felonious acts of his servants or his own personal negligence, unless at the time of the delivery thereof at the office of such carrier, the value and nature of such property shall have been declared and the increased charges authorized by the act shall have been paid; and further, that no public notice or declaration should thereafter exempt any carrier from his liability at common law for the loss or injury to any articles other than those specified in the act, but that as to such other articles his liability as at common law should remain, notwithstanding such notice; and provided, also, that the act should not be so construed as in anywise to affect any special contract with the carrier.13

Sec. 395. (§ 232.) Construction of act.-Commenting upon this act, the English judges have said that protection to carriers. was its object, as its title imports, and that they would not put upon it a more limited construction than its language required. Hence, they have held that although public notices will no longer avail the carrier in limiting his liability, special contracts for that purpose are still allowed and are not affected by the act; and that if notice be given to the customer of the carrier, and he subsequently sends his goods to be carried without objection to the terms of the notice, he is bound by them. So that the validity and effect of notices other than such as are called

13. This act, so far as it affects the question of the liability of the carrier, will be found set out in

full in Story on Bailments, §§ 554a, 554b and 554c.

public remain the same as before the act.14 And in numerous cases it has been decided that he may protect himself by such notices against loss caused by the negligence of his servants though not against such as are occasioned by their felonious acts. Nor is it material, under this act, in what manner the contract is made. Neither writing nor signing nor any other formality is required, the question in every case being one of fact, whether there was such a contract (Walker v. Railway, supra). And, although a mere public notice may not be sufficient, if a ticket containing such notice be delivered to the customer or his agent, it will suffice to limit the carrier's liability, whether it was read over or explained or understood by him or not.15

Sec. 396. ($233.) Modification of Carriers' Act by Railway and Canal Traffic Act.-The Carriers' Act was, however, somewhat modified by the legislature in 1854, by what is known as the Railway and Canal Traffic Act, as to the class of carriers indicated by its title, so far as to prohibit such carriers from limiting their liability by "notice, condition or declaration;" provided, however, that nothing contained in the act shall be construed to prevent said companies from making such conditions as to the terms of carriage as shall be signed by the shipper and adjudged by the court or judge before whom any question relating thereto shall be tried, to be just and reasonable; and further, that the amount of recovery, in case of loss, for the various articles therein enumerated shall not exceed a certain designated sum, varying according to the nature of the article. to be carried, unless the shipper shall declare them to be of higher value and pay additional compensation for the increased risk and care thereby occasioned. But the act expressly excepts from its provisions all such articles as are named in the general Carriers' Act.

Sec. 397. ($234.) Same subject-Effect of latter act. The material alteration effected by this latter act, as will be observed,

14. Walker v. Railway, 2 Ellis 15. Gr. N. Ry. v. Marville, 7 Rail. & B, 750; Austin v. Railway, 10 C. Cas. 830; Palmer v. Railway, 4 M. B. 454; Carr v. Railway, 7 Exch, & W. 749. 707; Fowles v. Railway, id. 699.