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 ordinary care or 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 servant's 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.

But obvious as the fallacy and error contained in the counsel's proposition appear to me, the proposition itself seems to be supported by the decision of the Supreme Court of California in the case of Hooper v. Wells, Fargo & Co., 27 Cal. 11; by the Supreme Court of Minnesota in the case of Christenson et al v. American Express

Co., 15 Minn. 270; and by the learned editor of the American Law Register, in his note to the former case, Law Register, November, 1865, p. 30.

In the first case the carrier made a contract stipulating that he would not be responsible except as forwarder. The court construed the contract as limiting the responsibility of the carrier to that of a forwarder, — that is, of an ordinary bailee for hire, but they held the carriers responsible for a loss occurring on a tug or lighter which plied between the shore and an ocean steamer, occasioned by the negligence of the managers of the tug, although they were not subject to the control or orders of the express company.

In respect to the responsibility of forwarders, the court say: "They are not insurers like carriers, but they are liable for losses of goods while in their custody, resulting from negligence of themselves, and those they employ in their business of forwarders."

The correctness of the first part of this proposition cannot be disputed; nor do I question the correctness of the latter part, if by "those whom they employ in their business of forwarders" the court mean those who are the forwarders' servants, and subject to their control and orders. The court further say, the responsibility of a forwarder is the same as that of a warehouseman, and "if a warehouseman, instead of using his own warehouse and employing his own subordinates, should, for a stipulated sum, paid to the owner, use in his business the warehouse of another person, who employs and controls the subordinates, there can be no doubt that he would be liable for a loss of the goods intrusted to his care, occurring while in his possession, and resulting from the negligence of such subordinates, although not under his control."

If by the words "intrusted to his care the court mean to suggest a case where the warehouseman has a contract to keep the goods in his own warehouse, I entirely concur in the proposition stated. But, if they mean that a warehouseman, who violates no contract by removing the goods of his customer from his own warehouse into that of another prudent warehouseman, is responsible for a loss of the goods resulting from the negligence of the subordinates of such other warehouseman, I cannot assent to it.

Suppose a warehouseman's warehouse should be destroyed by fire, it would be his duty to remove such of the goods of his customers as were saved to the warehouse of some other prudent person; and it cannot be insisted that he would be responsible for the loss of goods occurring there, resulting from the negligence of servants of the latter warehouseman.

If a warehouseman contract to keep goods in his own warehouse, and he should remove them in violation of his contract - to another warehouse, I suppose he would be liable for all losses there occurring, just as a bailee who hires a horse to go to a particular place is responsible for loss or injury to the horse, should he drive or ride him to a different place, and the horse be lost or injured in the prosecution of such other journey.

Again, the court say: "The fact that the defendants made use of various public conveyances, their messenger with the treasure travelling a part of the way by stage, a part by steam-tug and lighters, and a part by ocean steamer, makes no difference as to their liability. For defendants' purposes, the managers of these various conveyances were their agents and employés."

If, as seems to be conceded, it was contemplated by both the plaintiff and defendants that the defendants would not use in their business their own vehicles, but the conveyances of others, not at all subject to their control or management, and that in the use of those other conveyances the defendants did not violate their contract, 11

VOL. IX.

I cannot admit that the defendants, who, by the admissions of the court, were liable only as ordinary bailees for hire, were responsible for losses occasioned by the negligence of the managers of those conveyances. I cannot admit that the managers of those other conveyances were, in any legal sense, their agents and employés. The relation of master and servant, principal and agent, does not and cannot exist where the master has no control over the servant, and the principal no control over the agent.

The court further say: "The defendants had the means of holding the proprietors of those various vehicles used in their business of expressmen responsible to them, had they chosen to do so. If they did not take the proper means to secure themselves, it was their own fault."

But I cannot see how any argument can be drawn from this to show that the defendants were responsible. Every bailee or depositary may hold any one responsible for destroying or injuring goods in his possession, but it cannot be maintained that he is responsible for such destruction or injury, unless he by his negligence contribute to the same. Besides, the plaintiff had his remedy against the proprietors of those other conveyances, which occasioned the loss, see the N. J. Steam Navigation Co. v. Merchants' Bank, 6 Howard, 382, and it might be retorted "that if he did not take the proper means to secure himself, it was his own fault."

In the Minnesota case, it was stipulated, that the carrier "was not to be held liable for any loss or damage, except as forwarders only, or for any loss occasioned by the perils of navigation and transportation." The goods were received at New York, and were to be delivered to Christenson & Brother, Mankato, Minnesota. When the goods reached St. Paul, they were placed by the carrier on board the steamboat Julia, a boat belonging to the Northwestern Union Pacific Company, and managed entirely by its officers and servants, to be transported to Mankato. The goods remained in charge of the carrier's messenger. The boat at the time of the accident was strong, and in good condition. The carrier was guilty of no want of care in selecting the Julia to transport the goods; but, on the way, the Julia was, through the carelessness of its officers and managers, run against a snag and sunk, whereby the goods were damaged.

The court say that the carrier is not exempt from the loss by reason of the stipulation in its bill of lading that "it was not to be held liable for any loss or damage except as forwarders,” because, they say, "in our opinion . . . the effect claimed for this clause of the receipt by the defendants is inconsistent with and repugnant to the scope and intent of the result, viewed as a whole, and in connection with the fact showing the defendants' real character and mode of doing business."

In other words, the court held that the defendants were common carriers, and that this clause of their receipt did not modify their liability at all. If the court were correct in this, it is indisputable that this clause did not exempt the carrier from responsibility for the loss claimed.

In respect to the other exceptions, "perils of navigation and transportation," the court say: The exception does not excuse the carrier for negligently running into perils of the kind mentioned. The proper construction (of such words) is analogous to that which is put upon the words 'perils of the sea' in bills of lading. While thus it would seem very proper to hold that a snag in one of our Western rivers is a peril of navigation, as appears to have been done in Tennessee, if a vessel is wrecked upon one through the negligence of the carrier, or of those whom he employs, . . . the carrier is not absolved. Under such circumstances the loss is properly attributed to the agency of man, not to a peril of navigation."

Here again we have the same fallacies and misleading propositions which have

been exposed in a former part of this opinion. The sinking of a boat by running cn a snag in one of our Western rivers is undoubtedly a "peril of navigation." It is none the less a peril of navigation though it occur by the fault of the person navigating the boat. It is wholly misleading to say that it is a peril of navigation when it results from accident, and without fault, and that it is not a peril of navigation when it results from negligence. When goods are lost by reason of such peril, occasioned by the negligence of the carrier, the carrier is responsible, not because the goods were not lost by an excepted peril, but because he has brought about the peril through his own carelessness or negligence. He is made responsible for his negligence, not because he is a common carrier, but because he is guilty of negligence, and has occasioned loss thereby.

In the books which treat of common carriers, only those carriers are treated of who use their own conveyances; hence it is we often find it stated that the exception, "perils of the sea" or "perils of the river," included in the carrier's bill of lading, does not include losses arising from what would be generally understood to be "perils of the sea when occasioned by the negligence of the servants of the carrier. In such case, the carrier being the owner of the vessel in which the goods are carried, and being responsible for its careful navigation, it is not material in effect whether it is held that a loss arising from an excepted peril, brought about by his negligence, is not a peril of navigation within the meaning of the bill of lading, or that the carrier is responsible for a loss occasioned by the negligence of his servants; but it is better and more correct to place the liability in such case on the latter ground, because to place it on the former is misleading.

Certainly, as the court say, "the exception does not excuse the carrier for negligently running into perils, nor shall he be heard to set up his own negligence to excuse him from responsibility." But in the case before the court no negligence was imputed to the carrier. He did not attempt to set up his own negligence to excuse himself from responsibility. He set up that by the contract he was not to be liable for losses arising from the perils of navigation, and he showed that the loss did arise from a peril of navigation, without any fault on his part. He was not responsible for the negligence of the managers of the boat, as I have before shown, because he had no control or authority over them, and as he could be held responsible in the case only for negligence, it would seem he was not liable at all. I think that the court was misled by the definition of "perils of navigation," which it found in the books.

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Clearly, that is none the less a "peril of navigation or a "peril of the sea," because it is attributable to the agency of man. The very case which is generally used to define and explain what is a peril of the sea" is that of a collision brought about by negligence. If a carrier's vessel should collide on the sea with another vessel through the fault wholly of the latter, it is everywhere admitted that he would not be responsible for a loss arising from such collision of goods which he was carrying under a bill of lading that exempted him from responsibility for loss arising from "perils of navigation" or 'perils of the sea," and yet, undoubtedly, the collision in such case is attributable to the agency · - nay, to the negligence - of man. I have a profound respect for the opinions of the learned courts which I have here noticed; but I think that they are opposed to the general current of authorities, that they are founded on fallacious and misleading propositions, and that they disregard the well-settled principles of law.

The motion for a new trial is overruled.

LOUISIANA.

CIVIL RIGHTS. One Joseph R. Peters, a colored man, having bought a theatre ticket, applied for admission at the theatre, and was refused unless he would consent to sit elsewhere than in the dress-circle. Peters brought his suit in the Fourth District Court of New Orleans, under the Louisiana Civil Rights Act of 1869, which gives damages against the proprietors of places of public amusement, &c., who shall exclude any person on account of race, color, &c. The ticket bore on its face a notification that the proprietor reserved the right to assign the holder to a different part of the house from the one which he desired to enter. The court limited the plaintiff to proof of damages for breach of contract, and under the rulings the plaintiff can only obtain damages for such loss as he proves he has actually sustained.

MASSACHUSETTS.

HON. BENJAMIN R. CURTIS.- In the death of Judge Curtis, at Newport, R. I., on Tuesday, September 15th, the profession of this state and of the United States has suffered a well-nigh irreparable loss. His pre-eminent qualities were a universality of legal attainment, a wonderful mental grasp, and perfect clearness of expression. He came to the bar with an exceptional maturity, and it has been said that his first argument was as good as any he ever made; it was perfect in its logic and power of statement, and therefore could not be improved. The impression he made on the law of his time has been equalled by few living men. His mental structure was notably a judicial one, and his reputation is chiefly that of a great expounder of the principles of law, rather than that of an advocate. And when it is said that during his arguments the Supreme Court of the United States were obliged to pay unbroken attention to his whole chain of reasoning, lest by losing one link they might fail to grasp its successors, for he seldom reiterated, —it will be seen that his power over juries would not be commensurate with his natural mental force. His judgments as judge of the Supreme Court, his argument in the impeachment trial as counsel for Andrew Johnson, and his arguments in many other of the great causes of his time, all show the traits we have indicated.

He was, moreover, a man with warm sympathies and unpretending generosity, had a sense of humor not generally acknowledged, and by his integrity and dignity of life exerted a quiet but wholesome influence on the profession of the law.

In brief, if we mean by lawyer one who knows the principles of the law in all its departments, and, knowing, can state and maintain them, it must be admitted that we have lost one of the foremost lawyers of the age.

CIRCUIT COURT of the UNITED STATES. Matthews v. The Massachusetts National Bank. This was a case growing out of the fraudulent operations of James A. Coe, a Boston broker, which came to light some two years ago, and by which he had victimized the community to the extent of about half a million dollars. His plan was simple and remarkably successful. It was his habit to buy two or three shares of stock in a corporation, and take out certifi