and steamboats, for securing the safe carriage and speedy delivery of small but valuable packages of goods and money. Witbeck v. Holland, 45 N. Y. 13; 2 Am. & Eng. Cyclop. Law, 781-784; 5 Myer's Fed. Dec., $ 1511. They are essentially different from railway companies, not only in the fact that the latter carry more bulky freight, but they collect money, and do other things that would be held ultra vires, if attempted by a railroad company. Id., § 1509. It has been held that a railroad company could not refuse to carry for an express company, according to the peculiar methods of their business, and would be compelled by the courts to admit the messenger of all these companies to its cars with their safes on equal terms, and without inspection of their safes. Id., §§ 1508, 1519. If a railroad company engage in those branches of the express business authorized by their charter, they must not deny to express companies equal privileges with themselves as to that business. Id., §§ 1508, 1515-1521; Camblos v. Railroad Co., 9 Phila. 411; Express Co. v. Railway Co., 6 Fed. Rep. 426; Messenger v. Railroad Co., 18 Am. Rep. 754; Express Co. v. Railroad Co., 10 Fed. Rep. 869. Apart from the construction of our statute, it is the duty of express companies to receive all goods offered for transportation upon the payment or tender of their charges; but prepayment will be considered waived, if not demanded. Navigation Co. v. Bank, 6 How. 344. They are required, too, to have adequate facilities within a reasonable time, and cannot be exonerated for delay on account of increased expense, though not foreseen and not entirely unreasonable. Condict v. Railroad Co., 54 N. Y. 500. An express company could, in the absence of any statutory requirement, refuse goods on account of an unusual rush of business, especially where the goods offered for transportation are of a perishable nature. Hare Cont. 155. But these are the rules without reference to any such enactment as that before us for construction. When goods are received by an express company without any special and valid contract limiting its liability, it insures the safe and speedy personal delivery of the articles received, at the place of destination, if on its route, or if not, then at the end of its route. Witbeck v. Holland, supra; Bish. Cont., §§ 432, 591, 596. Even if the goods are placed in a warehouse, and not shipped immediately, the liability as insurers begins on the execution of a receipt for them. 7 Am. & Eng. Cyclop. Law, 546, 558. A high degree of care is required of an express company in the delivery of goods. They must deliver them, as soon as practicable after they reach their destination, within business hours, to the consignee, at his residence or place of business, unless he authorizes or directs delivery to be made at some other place. Marshall v. Express Co. and Witbeck v. Holland, supra. After the consignee receives notice from the company of the arrival of his goods, he is not bound to call at the office for them, but need only notify the company of his residence. place of business, or where he may be found; and the liability of the company as insurers remains till delivery or tender of the goods at the place designated, within business hours, and failure to receive or pay charges. Witbeck v. Holland, supra; 7 Am. & Eng. Cyclop. Law, supra, 567-570. If, in the interim between the arrival at its destination and the delivery, as the law requires, a package of money should be stolen from the agent, the company would be liable to the consignee. Supposing that a friend had sent by express $1,000 from Battleboro to the plaintiff, Alsop, at Halifax, and the latter lived several miles out of the town, we can readily see that it might require more than twenty-four hours for the company to rid itself of liability as a common carrier; and meanwhile it would be strangely negligent to fail to provide a safe for the security of valuable property and money received for its customer, and held as an insurer.

With this review of the relation that the defendant sustains to the public under other circumstances, necessitating the provision at all offices where money is received of the means to make it safe and secure from thieves till delivery, it is submitted, that if this court is to determine, leaving the statute out of view, whether a citizen who comes from the country, unpre pared to protect his property from thieves and burglars, shall be required, rather than a company, provided with safes, servants and secure rooms, to incur the risk of the custody of a sum of money, it should be guided by reason, and look to the situation of the parties, and the preparation that the law intends shall have been made by each or either for assuming the responsibility. Experience has shown that the principles of the common law are pliable; and a few fundamental rules have been expanded so as to furnish the basis of important branches of the law governing us at this day. This is notably true as to corporations. But, while the ancient land-marks of the law are worthy of veneration, and should be examined with conservative care, in determining how they meet the exigencies of a progressive age, we should not be so subservient to precedent as to blindly follow them when no longer sustained by reason. It strains the faith of the young student when he attempts to follow Lord Coke in his discoveries of all the hidden diversities in the text of Lord Lyttleton; and when we profess to find in the mouldy black-letter volumes of past centuries a principle that with prophetic ken was formulated to meet and solve a problem arising out of the adjustment of the relations between the people and one of the greatest and most useful corporations in the world, we must, if we would avoid shocking the common sense of mankind, find a rule founded on reason. The fact that a captain and crew of a vessel, according to the English authorities, had the right, in the thirteenth year of William III, to refuse to accept freight offered for shipment till the vessel was ready to sail, furnishes no analogy that can be safely applied to govern the relations of the plaintiff and defendant. The case of Lane v. Cotton, 1 Ld. Raym. 646, heard at Easter Term, 13 William III, decided this principle, and is the only authority cited in Story on Bailment, section 508, to sustain the rule announced by the author. It may have been just, at that remote period, to require the shipper, who had protected his goods on the way to the point of delivery, to continue his oversight over them, rather than force a driver, whose attention was required to be devoted to the preparation for his jour ney, or the master of a vessel, who, with his crew, was engaged in repairing and inspecting it, and laying in supplies for a voyage, to take them prematurely; for that would have made it requisite for them to prepare a place for storage, which they need not otherwise provide. But an express company, as we have seen, incurs from its nature such liabilities as to require a place of storage at every depot, so guarded as to the safety of property consigned to its care; and it is not unreasonable to require the same care of money tendered for shipment during business hours. Cessante ratione, cessat et ipsa lex. If therefore the statute were not written in plain terms, and if the history of legislation on this and kindred subjects did not indicate that the manifest meaning of the language was what the Legislature intended to express, still, we ought to bring this question to the touchstone of reason, based upon a broad view of the condition of the parties interested, and decide it as an original one, of first impression, between a new and important public agency and a citizen, just as the English judges considered the question involved in Morse v. Slue, 1 Vent. 190, 238 (cited in Lane v. Cotton, supra), and bearing in mind that it is more just to impose a risk upon a body politic, abundantly prepared to incur it, than upon an individual, who has placed his goods in peril on the in

vitation of the corporation. It is admitted that railroad companies have the power to provide different cars for excursionists, who purchase tickets at reduced rates, from those occupied by passengers paying more per mile, and also that they have the right to assign a separate car for colored people, as decided by this court; but, should our Legislature pass a law prohibiting in plain terms such discrimination, the courts would be compelled to enforce the law, if not pronounced unconstitutional. Such a law could not be ignored utterly in a discussion of these subjects after its passage. It seems therefore safe to conclude that: 1. The first clause of section 1964 is in itself a full and complete expression of the legislative intent that goods shall be received whenever tendered; and that the language cannot, by any accepted rule of interpretation, be limited further than to require that the tender shall not be made during hours that can reasonably be claimed, according to usages of business men at the place of tender, for repose, or for taking meals. 2. The words " 'under existing laws can be construed to qualify the word "forward," and to mean that at least when the law is applied to railroad companies, the goods shall be shipped within five running days from delivery, as required by the Code, § 1967, and subject to the law fixing the relations of consignor, consignee, the carrier, and its connecting lines, while the construction contended for would give to the statute no effect, but leave the law as it was before its passage.

If no statute had been passed, the courts could not, when the conditions and the relation of plaintiff and defendant are so widely different from those existing between the carrier of the last century and his customer, declare that an express company could not be compelled to receive goods till the hour of shipment, in conformity to the ancient rule, or that the transportation company could arbitrarily determine, by regulations prescribed for the government of its agents, exactly how it would, ex gratia, or with a view entirely to its own convenience, allow a departure from the old rule by giving further time. There is error. As the defendant did not rely affirmatively on the defense, or insist on a finding that the tender was at a time other than in business hours, the judgment on the facts found must be for the plaintiff.

CLARK, J. (concurring). At common law, common carriers were under no compulsion to receive goods or freight till ready to ship the same. Lane v. Cotton, 1 Ld. Raym. 652. Nor, after acceptance of the goods for shipment, were they liable for delays, if the goods were shipped within a reasonable time, and what was "a reasonable time" depended upon the facts and circumstances surrounding each particular case. These regulations sprang out of the former condition of things, when the modes of transportation were of a more primitive order. The law-making power in this State has modified the common-law rule in both particulars. In 1874-75, the Legislature enacted a statute, which is now section 1967 of the Code, making a delay of more than five days in shipping the goods after accepting them per se unreasonable delay, and affixing a penalty of $25 for each day's delay beyond that limit. This act has been held constitutional, and found judicial construction, in several cases with which the profession is familiar. Branch v. Railroad Co., 77 N. C. 347; Keeter v. Railroad Co., 86 id. 346; Branch v. Railroad Co., 88 id. 570. It still remained in the power of common carriers to nullify the act of 1874-75 by exercising their common-law right of not receiving goods till their own convenience should be suited, or they were in readiness to ship. For this reason, doubtless, the Legislature passed the act of 1879 (now section 1964 of the Code), which provides: "Railroad and other transportation companies, whose duties it is to receive

freights, shall receive all articles of the nature and kind received by such company for transportation, whenever tendered at a regular station," etc. The words "whenever tendered," upon a reasonable construction, signify whenever tendered" in the ordinary business hours of such companies at the place of tender. If the object had been to prescribe merely the place where the tender should be made, there was no mischief or complaint to be remedied; and, besides, in that case the statute would have naturally read, "if tendered at a regular station," etc. "Whenever tendered" has, clearly, reference to the time of tender, and to the common-law rule which gave the carrier the right to defer accepting the goods until ready to ship. The regulation adopted by the defendant company, that it will only receive packages each day just before the departure of the train going in the direction of the desired shipment, is in direct conflict with the statute. To give it validity would enable transportation companies, by regulations adopted in their own interest and for their own convenience, to repeal an act of the Legislature passed in the interest of and for the convenience of the public. A very analogous case is the decision in Branch v. Railroad Co., 88 N. C. 573, which held to be invalid an agreement or regulation, 'goods to be shipped at the convenience of the company," which had been inserted by the defendant in its bills of lading, in hope of avoiding the penalties of section 1967. The words "whenever tendered were evidently intended for the benefit of shippers, and in derogation of the common-law rule. It is our duty to give the statute such construction as will effectuate the legislative will. Should the execution of the statute, according to a fair and legitimate construction of it, impose any hardship upon transportation companies, the remedy is to be sought in a modification of the act by the Legislature, and not in the virtual repeal of it by judicial construction. In the increasing competition for shipments, few cases of failure to accept goods "whenever tendered" will arise, unless at points where a company has a monopoly; and it is for those very points that the protection of the law is most needed to secure such conveniences as the public demand. At competing points, where no monopoly of business exists, the law of competition will usually furnish the public all needed facilities.

MERRIMON, C. J. (dissenting). I do not concur in the opinion of the court, and will state some of the grounds of my dissent. The defendant is a common carrier of numerous kinds and classes of freight, including gold and silver, coined and uncoined, treasury notes, bank-notes, public and private securities, gems, jewelry and the like. It is not however such carrier of all kinds and classes of freight. It carries mainly such as require to be transported quickly, and generally such as are not very ponderous. A leading and distinctive feature of its purpose is to transport and deliver such freight as it carries certainly, promptly and expeditiously. It is not a warehouseman or depositary of freights of any kind. It simply and only receives the same for such transportation, and it holds or should hold them for that purpose as short a time as practicable, in the orderly course of business. In the nature of its business, it is to be charged with freights for the purpose, and only for the purpose, of transportation, and liabilities properly incident thereto. It has the right to prescribe reasonable and appropriate rules and regulations, not in contravention of law, for the conduct of its business, having in view the safety, protection and preservation of freights carried by it, and, as well, the protection of itself against fraud, injury and undue risk and liability. It may require that shippers shall deliver their articles to be transported within a reasonable time next before, in the order of business, the same shall be put on the ve

hicle or means of transportation-usually railroad cars -and sent on the way to their destination. The shipper has no right to compel the defendant to accept freights an unnecessarily and unreasonably long while before the time of starting the same on the way. Thus, if the train of cars on the railroad should start at 12 o'clock, M., the shipper should not compel the defendant to receive ordinary express freight the evening next before that time, and thus compel it to assume the risk of keeping it during the night and morning following. This is so, because the nature of the business does not require that the defendant shall have the freights during that time, and such risk does not come within the nature and purpose of the defendant as a common carrier. It has the right, by appropriate and reasonable regulations, to require that the articles to be shipped shall be delivered to it within the time necessary to enable it to ship the same by the express on its next ensuing trip. Reasonable time to prepare the freight for such shipment must be allowed. No more can be required for the mere convenience or advantage of the shipper, or to enable him to avoid a risk and put the same on the defendant, than justly ought to rest upon himself. If the law were otherwise, the shipper of money or other things of great value and hazardous in their keeping, might subject the defendant to a risk for hours-in some cases, for a day and night, or longer, perhaps-not necessarily or properly incident to its business and duties, and which the shipper himself ought to bear. Thus, one intending to send by the next express $100,000 in gold coin might, the evening next before the day it would start, at 12 o'clock, M., on purpose to avoid risk himself, compel the defendant to assume the risk of keeping the money during the mean time; not because such keeping was incident, or at all necessary, to its business or duties, but to disburden the shipper. It would be alike unnecessary, unreasonable and unjust to thus burden the defendant. We cannot conceive of a reason of justice, of necessity or policy that makes it necessary or proper to do so. The defendant was bound to receive the money tendered to its agent for transportation by the plaintiff within a reasonable time next before the departure of the next express going in the direction of the destination of the money; that is, within such time as the defendant's agent could, in the order of business, receive the money and prepare it for shipment. What such reasonable time is cannot be determined by any uniform or precise rule. This depends upon a variety of facts and circumstances-the place, the volume of business done there, the articles to be shipped, and the like considerations. The time must be sufficient to receive and ship the goods by the next express, as above indicated. McRae v. Railroad Co., 88 N. C. 526; Britton v. Railroad Co., id., 536; 2 Redf. R. R., chap. 26, § 10 et seq.; 2 Pars. Cont. (5th ed.) 174; Lane v. Cotton, 1 Ld. Raym. 652.

The plaintiff tendered the money early in the evening next before the day the next express was to go, at 12 o'clock and forty-five minutes of that day; and he insists that he had the right then to present and have it received, and, as the agent refused to receive it then, the defendant at once became liable for the penalty prescribed and given by the statute (Code, § 1964), and sued for in this action. The question whether this contention is well founded or not must be determined by a proper interpretation of the statute just cited. It prescribes that "agents or other officers of railroads and other transportation companies whose duties it is to receive freights shall receive all articles of the nature and kind received by such company for transportation whenever tendered at a regular depot, station, wharf or boat-landing, and shall forward the same by the route selected by the person tendering the freight under existing laws; and the transportation company represented by any person refusing to receive such

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freight shall be liable to a penalty of $50; and each article refused shall constitute a separate offense." It is conceded that the material words, whenever tendered," used, are not to be taken literally. To so treat them would lead to practical and ridiculous absurdity. As employed, they do not imply at any and all times -when the agent is taking his meals, while he may be reposing, at night, at midnight or daybreak, or at sunrise, or on Sunday. These words must receive a reasonable and just interpretation, in the light of the business to which the statute applies, and which it is intended in some measure to regulate. Thus interpreted, we think they fairly imply whenever the freight shall be tendered to the agent or officer of the company in the regular, orderly course of business, when the articles to be shipped ought to be received for that purpose; that is, within the time it is the duty of the carrier, having in view its nature and purpose, to receive the freight tendered. These words do not imply that the carrier shall receive the freight so tendered, and keep it in a warehouse for an indefinite and unnecessary length of time before, in the order of business, it can be shipped on the way to its destination. It is not the business of such companies, as common carriers, to thus store and keep freight. It is their business and purpose to transport it promptly; and the purpose of the statute is to compel them to do this by imposing penalties in case they fail to do so. It was not the purpose of the Legislature to enlarge the scope of the duties and purposes of such companies. There is nothing in the statute that so provides in terms or by just implication. The simple purpose was to compel them to a prompt and faithful discharge of their common-law duties. This court has so repeatedly declared. Branch v. Railroad Co., 77 N. C. 347; Whitehead v. Railroad Co., 87 id. 255. In this view the words" whenever tendered" must mean "whenever tendered" as I have pointed out above. This seems to me to be the only reasonable meaning of the words as employed. Any other interpretation of them would leave their meaning so loose and indefinite as to render their application impracticable.

Other words of the statute, as well as its spirit, strengthen the view I have thus expressed. The stat ute applies to companies "whose duties," not simply in the sense of business, are to receive freights; to receive them, in the order of business, when they must be received to be promptly shipped on the way. Such freights must be "tendered at a regular depot, station," etc., the shipper "tendering the freights under existing laws," not simply under statutory regulation, but, as well, under general principles of law applicable, such as that which requires that freights shall be received only within a reasonable time next before they are to be sent on the way to their destination. The interpretation I have given these words harmonizes, too, with the other statutory provision (Code, § 1963) prescribing rules of transportation for railroad companies, wherein it is provided that such companies “shall furnish sufficient accommodation for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, be offered at the place of starting," etc. This provision is simply in affirmance of a general principle applicable, and it in dicates the spirit and purpose of sundry statutory regulations that apply to railroad companies, and other companies that are common carriers, including that under consideration. It is said that this interpretation of the statute would not accommodate the convenience of persons who might occasionally go a considerable distance to ship money or other like things. This objection is without force. It was not the duty of common carriers to provide for such exceptional cases; and, as we have seen, the statute does not enlarge the scope of this duty. Its purpose is to compel a due discharge of the same. All shippers are placed