accustomed to carry, and tender reasonable compensation for carrying them; and if they refuse to perform their obligation in this respect, they are liable to respond in damages. Private carriers are such as carry for hire and do not come within the definition of a common carrier. Angell on Carriers, sec. 46. If, then, we ascertain whether the owners of steam tow-boats come within that definition, we will have reached the conclusion sought.

“ We take a common carrier to be one who offers to carry goods for any person between certain termini, or on a certain route, and he is bound to carry for all who tender him goods and the price of carriage, and insures the goods against all loss but that arising from the act of God or of the public enemy, and has a lien on the goods for the price of carriage. These are essentials, and though any or all of them may certainly be modified, and, as we think, may be controlled by express agreement, yet if either of these elements is wanting from the relation of the parties, without such agreement, then we say the carrier is not a common carrier, either by land or water.” Parsons on Shipping and Admiralty, vol. 1, p. 245. “A common carrier differs from a private carrier in two important respects: 1. In respect to duty, he being obliged by law to undertake the charge of transportation, which no other person, without a special agreement, is. 2. In respect to risk. A common carrier is regarded by the law as an insurer," etc. Angell on Carriers, sec. 67. "To bring a person within the description of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation pro hac vice. Story on Bailments, sec. 495.

“Common carriers undertake generally, ‘and for all people, indifferently, to convey goods and deliver them at a place appointed for hire, and with or without special agreement as to price.” 2 Kent., 598.

In Fish v. Chapman, 2 Kelly (Ga.) 353, the question was whether Fish was a common carrier. The .court said: " The undertaking (of a carrier) must be general, and for all people indifferently. The undertaking may be evidenced by the carrier's own notice, or practically by a series of acts; by his known habitual continuance in his line of business. He must thus assume to be the servant of the public -he must undertake for all people.” And again: “One of the obligations of the common carrier, as we have seen, is to carry the goods of any person offering to pay his hire. With certain specific limitations, this is the rule. If he refuses to carry he is liable to be sued, and to respond in damages to the person aggreved; and this is perhaps the safest test of his character." See to the same effect Jones on Bailments, 3d Lon. ed., p. 103, note.

The liability of common carriers is upon contracts implied by law. No one can become bound by such contracts unless he has either consented to be bound in that character, or has so acted as to justify the belief that he intends to be so bound. Without actual consent or conduct from which it .can be presumed, no one can become liable as a

common carrier any more than upon any other character of contract. The law applicable to them is extremely rigorous. It is founded in public policy and not in abstract justice. They will not be allowed to discharge themselves from liability for goods injured or lost by showing by the most irrefragable evidence that neither they nor their seryants were at fault, nor even by showing that they did all that human care, skill and vigilance could to avert the casualty. The harsh and inflexible answer is: You are common carriers, and must be held in fault, notwithstanding the fullest and most convincing evidence that you are without blame.

When a person has assumed the character of a common carrier, either by expressly offering his services to all who will hire him, or by so conducting his business as to justify the belief on the part of the public that he means to become the servant of the public, and to carry for all, he may be safely presumed to have intended to assume the liabilties of a common carrier, for he was bound to know that the law would so charge him, and knowing, must have intended it. But in order to impress upon him the character, and impose upon him the liabilities of a common carrier, his conduct must amount to a public offer to carry for all who tender him such goods as he is accustomed to carry. When this is the case, then those who tender him goods to carry accept his offer, and he becomes bound to carry them; and if he refuse to do so, “having convenience," and being tendered satisfaction for the carriage, he is liable to an action, unless he has reasonable excuse for his refusal. Jackson v. Rogers, 2 Show. 327; Riley v. Horne, 5 Bing. 217; 1 Ld. Rayd. 646; 2 Kent. 598.

This duty is inseparable from the character of a common carrier. By his conduct he induces the public to rely upon him to do their carrying. He is continually offering his services, and when his offer is accepted he has no right to refuse perform

But when he has not held himself out in such way as to amount to an offer to carry for all shippers, no one has right to depend upon him, or to demand that, as matter of duty, he shall carry his goods, and he may refuse, though he has room and to spare, and his charge for carriage be tendered. If he is bound to carry for all who offer, then he is a common-a public-carrier, and whatever he receives as a common carrier he is bound for in that character. The duty to receive, and the lia. bility to account, are correlative, and a carrier must receive and transport in the same character. If he receives as a private carrier, he carries and is liable in that character, and that only; he is bound according to the tenor of his contract. If be receives as a common carrier, he carries and is liable in that character, unless he has contracted for a modified liability.

Our conclusion, then, is, that a carrier of goods is not liable as a common carrier, unless he was under a legal obligation to accept the goods and carry them, and would have been liable to an action if, without reasonable excuse, he had refused to receive them; and that he would not be liable to such an action unless he had expressly and publicly offered to carry for all per

ance.

sons indifferently, or had, by his conduct and the manner of conducting his business, held himself out as ready to carry for all.

We are aware that the rule has not always, and perhaps not generally, been thus restricted. But as we have already said, the law applicable to common carriers is peculiarly rigorous, and it ought not to be extended to persons who have not expressly assumed that character, or by their conduct and from the nature of their business justified the belief on the part of the public that they intended to assume it. As said by Chief Justice Marshall in Boyce v. Anderson, 2 Peters, 150, “ though to the extent to which the law has been applied, we admit its necessity and its policy, we do not think it ought to be carried further, or applied to new cases."

Tested by the principles we have laid down, it is clear the appellants are not chargeable as common carriers. They are not shown to have held themselves out to the public as ready to tow craft for all who might seek their services. They are engaged in a business which, in its nature, is not such as to entitle the public to suppose they woulu tow for all who might desire to hire them. They are not shown to have operated upon a definite route, or between established termini. They operate on the Ohio and its tributaries, and from the facts in the case there is no reason to suppose that the public looked to them as bound to carry without a special agreement, or that they ever intended to undertake to do so, or to carry for any one without a special contract. They made such a contract with the appellee, and on the facts of the particular case, as well as from the nature of their business, “ towing and jobbing," they should be deemed private, and not common carriers, and consequently they were only liable in case they failed to exercise ordinary care and skill, considering the nature of their business; and the court having found that they did not fail in this respect, the judgment must be affirmed.

This conclusion is not inconsistent with the Louisiana cases, quoted in the beginning of this opinion. From the facts stated in the opinion in the first of those cases, it appears that boats engaged in towing vessels to and from New Orleans, and the mouth of the Mississippi, are publicly offered to all persons who choose to hire them." This made them common carriers. Having publicly offered their services to all, all had a right to rely upon them, and to demand their services when desired, and the owners of such boats would be liable to an action if they refused, without reasonable excuse, to tow when applied to for the purpose.

In the North Carolina case no reasons are given for the decision, and no authorities are cited in support of it, and it stands alone, so far as our researches have extended, in holding that the owners of steamboats are common carriers from the simple fact that they are accustomed to engage in towing other craft.

Judgment affirmed on the original and cross appeal.

NOTES OF RECENT CASES IN THE UNITED STATES CIRCUIT AND DISTRICT COURTS.

LEVY OF EXECUTION WHEN SUFFICIENT- SALE. -1. Unless required by statute, a levy or seizure of real property for the purpose of sale to satisfy a debt or tax may be made without going upon the premises, by making a memorandum upon the warrant of the description of the premises for the purpose of a levy. Catlin v. Jackson, 8 Johns. 546; Armstrong v. Reckey, 2 N. B. R. 475. 2. A deputy collector of internal reyenue to whom a warrant was directed for the collection of a delinquent tax due from Joseph H., levied upon 330 acres of land belonging to the said Joseph H, when said tax became due, by entering upon said warrant a correct description of the premises by metes and bounds, but at the same time incorrectly stated therein that they were in the occupation of John H. who lived over two miles distant from the premises, and afterwards offered the premises upon which said John H. lived for sale upon the erroneous assumption. that they were the premises of Joseph H. upon which he bad levied as above, and there being no bidders declared the same purchased for the United States for the amount of tax, interest thereon and charges.. Held, that there was no sale of the premises levied upon as the property of Joseph H., and that the United States took nothing by the subsequent conveyance to it from the collector.- United States v. Hess. United States Circuit Court, District of Oregon. Opinion by DEADY, J.

OFFICIAL BONDS-PRESUMPTION.-1. In the absence of any statute upon the subject, a bond volun-tarily given to the United States to secure the payment of a debt or the performance of official duty is valid.. 2. But where a statute prescribes the penalty and conditions of a bond, one given in a greater penalty or upon substantially other or different conditions is so far illegal and void. 3. An Indian agent appointed for Oregon uuder $ 4 of the act of June 5, 1850 (9 Stat. 437), was required to give bond in the penal sum of $2,000, as provided in § 4 of the act of June 30, 1834 (4 Stat. 735); and he was also a person charged or trusted” with the disbursement or application of money or property on account of the Indian department, within the purview of § 8 of said act of 1834, and therefore might be required by the President to give a bond in a larger sum than $2,000 for the performance of his official duties. 4. The law presumes that official duty has been duly performed, and therefore where the Indian department took a bond from an Indian agent in Oregon in a larger amount than $2,000, the presumption of law is that the increase in the penalty was required by the executive, and the bond is valid until the contrary appears.-United States v. Humaso1.. United States Circuit Court, District of Oregon. Opinion by DEADY, J.

INJUNCTION-CONTEMPT.-Certain parties having been injoined from grading a street until the bearing: of the cause, or the further order of the court, subsequently proceeded to grade the street under authority of a city ordinance, passed after the issuing of the injunction, without first presenting the ordinance to the court and procuring a dissolution or modification of the injunction. Held, 1. That they were guilty of contempt. 2. That a party can only be relieved from the operation of an injunction, absolutely prohibiting the performance of a specific act, by the court granting the injunction.-Muller v. Henry. United States Circuit Court, District of California. Opinion by SAWYER, J. 3 Pac. Coast L. J. 206.

JURISDICTION - BILL TO IMPEACH DECREE FOR. FRAUD.-1. In a proper case, a decree may be impeached collaterally in another court, but where a bill is brought to set aside and declare void a decree ren

a

dered in this court, whether on the ground of fraud or otherwise, this court being the one in which the decree was rendered, is the only tribunal which can properly take cognizance of such a bill. 2. In such a case the question of jurisdiction does not depend upon the fact of citizenship of the parties; nor can the bill be regarded as a bill of review, and as such required to be brought within two years after decree. It may be said to be the outgrowth of the original suit, an incident of it, from jurisdiction over which flows the jurisdiction to entertain this bill.-Osborn v. Michigan Air Line Co. United States Circuit Court, Eastern District of Michigan. Opinion by WITHEY, J. 11 Ch. L. N. 367.

up and all reasonable efforts made, when the obstruction is seen, to avoid an accident, the company is exempt from responsibility, and the injury is ascribed to the contributory negligence of the owner of the stock in permitting them to roam about and get on the track. When all the facts and circumstances of the accident are shown, the law itself will raise, or refuse to raise, the inference of neglect upon which the liability of the company depends. The force of the presumption raised by the statute (Batt. Rev. eh. 16, sec, 11) only applies when the facts are unknown, or wben from the testimony they are uncertain. In such cases the statute turns the scale but not when all the facts are established. Negligence is a question of law to be decided by the court upon admitted facts. Opinion by SMITH, C. J.-Doggett v. Richmond & Danville R. Co.

ABSTRACTS OF RECENT DECISIONS.

SUPREME JUDICIAL COURT OF MASSA

CHUSETTS.

SUPREME COURT OF NORTH CAROLINA.

[Filed June, 1879.)

June Term, 1879. NEGLIGENCE DEFECT IN ROLLING STOCK OF RAILROAD-MASTER AND SERVANT. - Where there was a defect in a connecting rod which was unknown to the plaintiff, a brakeman on a rail road, but which his employers could have ascertained by having the machinery inspected, and they did not cause it to be inspected, and under the strain the rod broke and caused an injury to the plaintiff while in the discharge of his duties as brakesman, tbe railroad company is responsible. Opinion by SMITH, C. J.-Johnson v. Richmond & Danville R. Co.

EVIDENCE OF ACCOMPLICE FOR State DOES NOT BAR INDICTMENT.-If an accomplice gives evidence for the State, that fact can not be pleaded in bar to an indictment against such accomplice, nor can it be availed of as a defense on the trial, though it may be made the ground of a motion to delay the trial to give an opportunity to apply for executive clemency. If the evidence was given in consequence of assurances from the solicitor, its only effect can be to influence him to enter a nolle prosequi under a proper sense of official duty. Opinion by SMITH, C. J.-State v. Lyon.

CRIMINAL PROCEDURE-IMPROPER JUROR IMPANNELLED— POWER OF COURT TO ORDER MISTRIAL. -On a trial for murder the agent of the defendant, with his knowledge and procurement, succeeded in getting upon the jury with a view to procure an acquital, a man who falsely took the oath that “ he had not previously formed or expressed the opinion that th with the prisoner's knowledge, been assisting in his defense. On motion made, after the empanneling of the jury, the judge ordered a mistrial. Held, that the facts found by the court are conclusive, and only the conclusions of law are reviewable. If a judge should sit on the bench and allow such a fraud as is disclosed by the facts found in this case, trial by jury would be a farce and the administration of justice a mere mockery. The mistrial was properly ordered and the pris ner must be held for another trial. Opinion by ASHE, J.-State v. Bell.

RULE OF LIABILITY OF RAILROADS FOR KILLING Srock.-If the owner permits his cattle to stray off and get upon the track and they are killed or hurt, the company is not liable, unless the company were carelessly running the train, or could by the exercise of proper care, after the animals were discovered, have avoided or prevented the injury. The company is not required to abate the usual and safe speed of their trains lest there may be cattle on the road, which may be killed or injured; and if a proper look out is kept

CORPORATION- LEASE - LIARILITY FOR TORT.A horse railroad corporation wbich by the consent of the legislature, has leased its railroad, franchise and appurtenances to an individual, and contracted with him for the operation of said railroad is, independently of the statute provision to that effect in its charter, liable to a passenger injured during the term of the lease and while the lessee was in control and possession of said road, by the negligence of servants employed by and for the lessee. Opinion by SOULE, J.-Quested v. 'Nevoburyport and Amesbury Horse R. Co.

Town - DEFECTIVE HIGHWAY MASTER AND SERVANT.-The defendant town contracted with F to light and take care of all its street lamps, who engaged the father of the plaintiff, a minor, to light and have the care of a certain number, and paid him for his services; and the plaintiff, who did the work of ligiting and putting out the lights for his father while the latter was so hired by F, was injured, while engaged in said work, by a defect in the sidewalk, to wit: a board over which he fell. The defendant contended that the plaintiff was their servant, and that the injury was caused by the neglect of some fellow. servant in omi ting to remove the board. Held, that such relation did not exist. Kimball v. Coleman, 103 Mass. 194; Johnson v. Boston, 118 Mass. 114. Opinion by AMES, J.-Eaton v. Woburn.

PROMISSORY NOTE WAIVER OF DEMAND AND NOTICE-SET-OFF. - Action on a promissory note, payable on demand, dated in April 1, 1877, which was overdue at the time of the indorsement by the payee, Perry, to the plaintiff. The defendant in set-off relied on a claim against Perry, and produced a note of other parties secured by a mortgage of personal property dated in 1870, payable in three months after demand to the order of Perry, and by him indorsed to the defendant at the time when the note in suit was given, as the consideration for the same and for money then paid by the defendant to Perry. The mortgage was also assigned to the defendant at the same time. There was evidence that, in the following May, the defendant, baving been told that the note and mortgage were worthless, so informed Perry and told him that he should hold him as indorser on the note,to which Perry assented, and said he would take the mortgaged property, sell it, and take care of the note, and would not hold the defendant liable on the note in suit until he had paid the mortgage note. In pur. suance of this agreement, Perry took possession of

the property but failed to sell it, or to pay the mortgage note. He stored the property for two years, during which time he often told the defendant that he would sell it, take care of the mortgage note and not hold him liable on the note in suit till he did. The note last named was then in Perry's hands and remained his property until 1874, when it was indorsed to the plaintiff. It was assumed by both parties that the mortgage note became due before the note given by the defendant was transferred to the plaintiff and while Perry had possession of the mortgaged property. The defendant claimed that there was evidence in the case which would justify the jury in finding that Perry had waived demand and notice, and if so that then the defendant's right of set-off would be established. The judge rejected the evidence, ruled against the evidence on the pleadings, and upon the evidence admitted directed a verdict for the plaintiff. Held, that this ruling was erroneous. The defendant upon this evidence had the right to go to the jury on the question of waiver. Gove v. Vining, 7 Met. 212: Third Nat. Bank, etc. v. Ashworth, 105 Mass. 503, Proof of waiver of demand and notice is sufficient to support the allegation of demand and notice. Taunton Bank v. Richardson, 5 Pick. 435; Harrison v. Bailey, 99 Mass. 720. Opinion by COLT, J.Armstrong v, Chadwick,

SUPREME COURT OF PENNSYLVANIA.

May-June, 1879.

PARTNERSHIP POWER OF PARTNER TO BIND His CO-PARTNER-ADMISSIONS_RATIFICATION.-J T, a member of the firm of T & F. whose business was the laying of wooden pavement, accepted a draft drawn in favor of the plaintiffs, signing his name "JT for T & F.” There was evidence that F, the other partner, bad been shown the draft and made offers as to its payment. Held, that this was sufficient evidence of a ratification by F to send the case to the jury. Held, further, that evidence tending inferentially to disprove the alleged admission of liability by F (e. g., that the firm received no consideration) was inadmissible Opinion Per CURIAM.–Filbert v. Bickel. 7 W. N. 217.

FRAUD ADMINISTRATOR'S PURCHASE AT His Owx SALE, WHEN VOID-TENDER. - Where an administrator at the sale of his decedent's estate discouraged bidders with the view of procuring the property himself at a low price, and he purchased it through a third party, though not at a gross undervalue, the sale is fraudulent and void without regard to the price the property actually brought, and the owners of such property are entitled to recover in ejectment against such purchaser withoui a tender of the purchase-money. Opinion PER CURIAM.-Mayer t. Senyard. 7W. N. 224.

MUTUAL INSURANCE COMPANY-SURRENDER-LIABILITY.-A mutual insurance company is relieved from liability for loss occasioned by fire, ofter a voluntary surrender and acceptance of the policy, and pıyment of assessments then due, No formal cancellation of the same, or erasure of the name of the insured from the books of the company is necessary, notwithstanding the by-laws provided that the liability of the members should continue until such cancelJation and erasure should have been made. Opinion by GORDON, J.-Farmer's Mut. Ins. Co. v. Wenger. 7 W. N. 191.

FIXTURES-GAS FIXTURES AND HEATERS - EviDENCE OF PAROL AGREEMENT DURESS.-1. Gas

fixtures and heaters, though appurtenant to the house, are personal property. 2. Parol evidence is admissible to show a collateral agreement between the vendor and purchaser of a house that the gas fixtures and heaters should pass with the house to the purchaser of the latter under a written agreement. 3. The plaintiff and defendant had agreed for the sale of a house; before the time for delivery of possession the plaintiff claimed that he had the right to remove the gas fixtures and heater; the defendant denied this; he afterwards, however, gave the plaintiff his note for the amount agreed on as their value, making it non-negotiable, in order that the matter might be thereafter contested. In an action upon the note: Held, that there was no evidence of either duress or fraud in obtaining the note, and that the transaction was nothing more tban a fair compromise of a disputed question, which the defendants would not be allowed to gainsay. Opinion by GORDON, J.-Heysham v. Dettre. 7 W.N. 207.

POLICE POWER OF CITY BUILDING LAWSWHAT CONSTITUTES A "NEW BUILDING."-A back building was raised one story, changed, as to two of its walls, from frame to brick, and so altered internally by staircases, ranges, partitions and doors as to make practically four separate dwelling-houses, each consti-. tuting a cheap tenement house for a family. Held (sustaining the decision of the court below), that the alterations constituted a "new building” within the meaning of the act of April 21, 1855, requiring that all new buildings within the city of Philadelphia shall front upon a street of not less than twenty feet in width, and shall have an open space attached to them of twelve feet square. But held, further (reversing the decree of the court below, tha the owner can not be restricted in his right to lease a part of his building, or to permit it to be so occupied. “The object of the act was to secure and protect health and life by furnishing each family with a sufficient quantity of lightjand pure air, and with a reasonable facility for escape in case of fire. It should be construed so as to give due effect to its wise sanitary provisions. The power of the court under this act is limited to restraining the continuance of the work, and to ordering the removal or change of so much of the building as may come within the prohibition of the law, but does not extend to controlling the use and enjoyment of it.” Opinion by MERCUR, J.-Brice's Appeal. 7 W. N. 239.

VENDOR AND VENDEE-PERSONAL LIABILITY OF VENDEE FOR MORTGAGE DEBT.-1. The mere fact that the amount of a mortgage upon land has been retained out of the nominal purchase-money, as recited in the deed, is not sufficient to create a personal liability for the mortgage debt on the part of the vendee. 2. A. purchased land, upon which was a mortage of $11,000 for $3,000; ihe consideration expressed in the deed was $14,000. Accompanying the deed was a separate and contemporaneous covenant by the vendor that the mortgage debt should not be called in for five years if the interest were punctually paid; the agreement recited that the vendor had that day conveyed, for the sum of $3.000, a lot of land subject to the payment of a mortgage of $11,000.” The morigage was sued out, and a balance of the debt remained unpaid, Upon the presentation of a claim for the balance against the estate of the vendee, the auditor found as a fact that payment of the mortgage debt had not been personally assumed. Held, that the claim was properly disallowed. Opinion Per CURIAM.-Davis' Appeal, 7 W. N, 237.

EXECUTION-SHERIFF'S SALE-FAILURE TO PAY PURCHASE-MONEY RESALE — MEASURE OF DAMAGES.–1. A. paid $50 on his accepted bid of $1,100 for real estate at sheriff's sale, under the following condi