that you are afraid to express your condemnation of outrages perpetrated in your county. During the past twelve months human life has been taken in the streets of Owenton and in other parts of our county, and the people are too apprehensive of danger to condemn or applaud. Both state and federal troops have been sent in upon you to preserve order, and give security to the lives of your citizens; and, so far as I am apprised, their conduct has met the approval of the good people. They have behaved well, and are entitled to your best favors.

I will not instruct you in detail, but will defer that till you meet together on the 24th inst.; but, gentlemen, as one who has an interest in you, as one who is determined, so far as he has power, to enforce the law fairly, impartially, yet vigorously, let me request you, in the name of law, human and divine, to discharge your whole duty. For such conduct your people honor and respect you, your families and the families of your neighbors will applaud, and the smiles of another, and, more than this, a higher court, will afford you much comfort when earth gives you up, and a holier and better home is provided for you by the Great Ruler of the Universe. The court will be sustained in its action by a guard of state troops.

LIABILITY OF AN EXPRESS COMPANY FOR MONEY INTRUSTED TO IT FOR TRANSPORTATION. - Bank of Kentucky v. Adams Express Co. - Two legal propositions have seemed hitherto pretty well established :—

1st. That, although a common carrier may cancel his liability by special agreement, yet the burden of proof is upon him to show that the shipper of goods actually understood and assented to the agreement. New Jersey Steam Navigation Co. v. Merchants' Bank, 6 Howard,-314; Hollister v. Knowlan, 19 Wend., 234; Verner v. Sweitzer, 32 Penn., 208; Buckland v. Adams Express Co., 97 Mass., 124.

2d. That, although express companies have no authority or control over the servants of such railway or steamboat lines as they may employ in the transportation of the merchandise confided to them, yet express companies are common carriers, and are therefore responsible for the negligence of the transporting lines as for the acts of their agents. Sweet v. Barney, 23 N. Y. 335; Hooper v. Wells, Fargo & Co., 27 Cal. 11; Buckland v. Adams Express Co., 97 Mass. 124.

Mr. Justice BALLARD, however, has given an opinion which seems to conflict with these authorities, and which, if it should prevail, would considerably change the relations of express companies to the public. He says:

ant.

On a former day there were in this case a verdict and judgment for the defendAt the trial the counsel for the plaintiff took several exceptions to the rulings of the court and charge to the jury, and they have now moved for a new trial, assigning for cause that the court erred in refusing to give the instructions asked by them, and in giving the instructions which were given.

The learned counsel have submitted no argument on their motion. They stand on the argument made, and the authorities cited at the trial.

As both that argument and those authorities received, at the time, the fullest consideration, I think I would be justified in overruling the motion without adding to what was then said; but as the opinion then expressed by me on the main point in the case is apparently opposed to several respectable authorities, and is supposed to present a new and important question, I feel that I ought not to allow this opportunity to pass without attempting a vindication of an opinion, the correctness of which has been confirmed by subsequent reflection.

The facts in the case are substantially as follows: The Southern Express Company and the Adams Express Company are engaged each in the business of carrying money and other articles from one part of the country to another for hire, at the request of any one who offers such articles to them for carriage. They do not use in their business any vehicles of their own, except such as are required to transport the articles intrusted to them, to and from railroad depots, and to and from steamboat landings. They use railroads, steamboats, and the other public conveyances of the country. These conveyances are not subject to their control, but are governed entirely by the companies and persons to whom they belong. The packages intrusted to them are at all times, while on these public conveyances, in the care of one of their own messengers or agents. These companies are engaged in carrying by the railroads through Louisiana and Mississippi to Humboldt, Tenn, and thence over the Louisville and Nashville Railroad to Louisville, Ky., under a contract by which they divide the compensation in proportion to the distance the article is transported by the respective companies. Between Humboldt, Tenn., and Louisville, Ky., both companies employ the same messenger; but this messenger south of the northern boundary of the State of Tennessee is subject entirely to the orders of the Southern Express Company, and north of that boundary is subject entirely to the orders of the Adams Express Company.

These express companies are in the habit of charging one price when they undertake to insure the safe delivery of the articles intrusted to them, that is, when they do not modify their ordinary responsibility as common carriers, — and of charging another and lower price when their responsibility is limited. The Louisiana National Bank was aware of these regulations, and had in its possession printed blank receipts, or bills of lading, showing in the body the conditions and exceptions upon which the companies would undertake to carry at the lower rate, and in the margin the printed blank for the rate at which they would insure. Having received a letter from the plaintiff directing the forwarding by express of the sum of $13,528.15, the bank, by its teller, filled the blanks in that part of the bill of lading which contained the conditions and exceptions, and presented it to the Southern Express Company for its signature, and delivered the package of money addressed to the plaintiff without stating who was the owner. The bill of lading was signed and redelivered to the teller of the Louisiana National Bank, and forwarded by him to the plaintiff at Louisville. It does not appear that the receipt was read at the time of its delivery, or that the attention of the officers of the Louisiana National Bank was called specially to the exceptions contained in it; but, as before stated, the bank was aware of these exceptions and of the stipulations for the lesser rate of compensation. This package was carried by the Southern Express Company from New Orleans to Humboldt, Tenn., and there delivered to the joint messenger of the Southern and Adams Express Companies. While it was in the custody of this messenger between Humboldt and the northern line of the State of Tennessee, the car in which the package was contained was precipitated through a trestle-work on the line of the Louisville and Nashville Railroad, at or near Budd's Creek, and the car and package were destroyed by fire. This was caused by the fallen locomotive, without any fault or neglect on the part of the messenger who had charge of the package. So much of the receipt as is material to the present controversy is as follows:

"No. 2.- $13,528.15.

"SOUTHERN EXPRESS COMPANY,
"Express Forwarders.

JULY 26, 1869.

"Received from the Louisiana National Bank one package, sealed, and said to contain $13,528.15, addressed' Bank of Kentucky, Louisville, Kentucky.""

"

Upon the special acceptance and agreement that this company is to forward the same to its agent nearest or most convenient to destination only, and there deliver the same to other parties to complete the transaction, such delivery to terminate all liability of this company for such damage; and also that this company are not to be liable in any manner or to any extent for any loss or damage. . . of such package or of its contents . . . occasioned ... by fire or steam. The shipper and owner hereby severally agree that all the stipulations and conditions in this receipt contained shall extend to and inure to the benefit of each and every company or person, to whom the Southern Express Company may intrust or deliver the above-described property for transportation, and shall define and limit the liability therefor of such other company or person."

Upon these facts the court charged the jury: —

First, That the Southern Express Company and the Adams Express Company are common carriers.

Second, That the Adams Express Company is liable for the loss of packages delivered to the joint messenger of the two companies at Humboldt, Tenn., although the loss occur south of the southern boundary of the State of Tennessee.

Third, That if the jury believe the facts above detailed in relation to the execution of the receipt, then it, thus signed and delivered, constitutes the contract, and all the exceptions in it are a part of the contract, no matter whether each or all of them were known to the Louisiana National Bank or not; and the plaintiff is bound by this contract, whether it expressly authorized the Louisiana National Bank to make it or not.

Fourth, If the bill of lading contained no exception, it is clear that the defendant would not be excused because the accident occurred without its fault. It would be the insurer, and therefore accountable. But the bill of lading among other exceptions contained this: "That the company are not to be liable in any manner or to any extent for any loss or damage of such package or its contents occasioned by fire."

...

...

Now, if you believe that the package was destroyed by fire, as above indicated, without any fault or neglect on behalf of the messenger, or the defendant, the defendant has brought itself within the terms of the exception, and it is not liable. It is not material to inquire whether the accident resulted from the want of care or from the negligence of the Louisville and Nashville Railroad and its agents or not, since the uncontroverted testimony shows that the car and train in which the messenger of the Adams Express Company was transporting the package belonged to the Louisville and Nashville Railroad Company, and were exclusively subject to its control and orders. A common carrier who has not limited his responsibility is undoubtedly responsible for losses, whether occurring on vehicles controlled by himself exclusively or belonging to and controlled by others, because he is an insurer for the safe delivery of the article which he has agreed to carry; but, when he has limited his liability so as to make himself responsible for ordinary care only, and the shipper, to recover against him, is obliged to aver and prove negligence, it must be his negligence or the negligence of his agents, and not the negligence of persons over whom he has no control.

"If in his employment he uses the vehicles of others, over which he has no control, and uses reasonable care, that is, such care as ordinarily prudent persons engaged in like business use in selecting the vehicles, and if the loss arises from a cause against which he has stipulated with the shipper, he shall not be liable for the same unless it arises from his want of care, or the want of care of his employés. Without, therefore, deciding whether or not the evidence adduced in the case

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tends to establish any want of reasonable or ordinary care on the part of the Louisville and Nashville Railroad Company, I instruct you that such evidence is irrelevant and incompetent, and that you should disregard it, that is, give no more effect to it than if it had not been adduced."

The first and second instructions were not excepted to, but the third and fourth were. At the trial the plaintiff insisted that it was not bound by the terms of the receipt, because it was not shown that the attention of the Louisiana National Bank was called to them at the time, or that it expressly assented to them, but I am of opinion that there was no error in this portion of the charge. The Louisiana National Bank was aware that the receipt contained some exceptions and conditions. It accepted the receipt without remonstrance or objection, and both authority and reason demonstrate that the receipt must under these circumstances be regarded as constituting the contract of the parties. Dorr v. N. J. Steam Navigation Co., 1 Kernan, 485; Wells v. The Steam Navigation Co., 4 Selden, 375, and 2 Comstock, 204; Richard Grace v. Alvin Adams, &c., 100 Mass. 505; Halford v. Adams, 2 Duer, 480; York Co. v. Central R.R., 3 Wallace, 107.

It is now every where admitted that a common carrier may limit his responsibility by express contract; and if he may make an express contract with a shipper of goods, I cannot see why the contract may not be shown by the same evidence which would establish a contract between other parties. I cannot see why a writing delivered by a common carrier to an owner of goods intended by the former to express the terms and conditions of his contract to carry, and received by the latter as such, should not constitute the contract between them.

A common carrier, it is true, is bound to carry all articles within the line of his business upon the terms and conditions imposed by law, if the shipper shall so demand. He has, however, a right to charge in proportion to the risk assumed by him. It is upon this ground the authorities hold that, unless his responsibility is modified by express contract, his undertaking to carry is upon the terms and conditions which are imposed by law. But when he has undertaken to carry at a less rate than he would have a right to charge, and would charge, if he undertook to carry only upon the conditions imposed by law, and has by his receipt delivered to the shipper stipulated for a reasonable limitation of his responsibility, and the shipper has accepted the receipt without objection, the latter is as much bound by the contract thus made as any other party would be.

The correctness of the propositions contained in the remaining portion of the charge to which exception was taken may, I think, be demonstrated in two ways:First. By the contract between the bank and the express company it was agreed that the company should not be responsible for any loss or damage of the package which should be occasioned by fire. The loss of the package was occasioned by fire; hence the carrier, by the terms of the contract, is not responsible. It is not pretended that the contract was violated by using the cars of the Louisville and Nashville Railroad Company to transport the messenger and the package, or was violated in any other respect. It follows, therefore, that, if the company is liable at all, it is not so by virtue of the contract, but in spite of it.

The contract, however, does not attempt to exempt, nor could it have exempted, the express company from loss occasioned by the neglect of itself or its servants; but when it is sought to charge the company with neglect, it must be such neglect as it is responsible for upon the general principles of law.

Now, upon these principles, no one is responsible for damage occasioned by neglect, unless it be the neglect of himself or his servants or agents. But the facts stated show that neither the company nor its servant was guilty of any neglect; it follows that the

defendant cannot be charged on this account. Though the defendant used the Louisville and Nashville Railroad to transport its messenger and the package, the railroad company was not, in any legal sense, the servant of the defendant. The defendant had no control over the railroad company or over its servants. The railroad company was

no more the servant of the defendant than it is of any passenger whom it transports. It was no more the servant of the defendant than is the hack or cab the servant of him who hires it to transport him from one part of the city to another.

Second. All the authorities agree that when a common carrier has, by special contract, limited his responsibility, "he becomes, with reference to that particular transaction, an ordinary bailee, · -a private carrier for hire," or reduces his responsibilities to those of an ordinary bailee for hire." York Co. v. Central R.R., 3 Wallace, 107; N. J. Steam Navigation Co. v. Merchants' Bank, 6 Howard, 382; Railroad Co. v. Lockwood, 17 Wallace, 357.

I prefer the latter form of stating the proposition, because it is less misleading. I do not think that a common carrier, by entering into a contract limiting his responsibility, changes his character. He still remains a common carrier, with his responsibility limited, in respect to the matter embraced in his contract, to that of an ordinary bailee for hire. The authorities are equally clear that an ordinary bailee for hire is bound to only ordinary diligence, and responsible only for losses and injuries occasioned by negligence or want of ordinary care. The defendant did by special contract limit its responsibility, and neither it, nor its servant, the messenger, is chargeable with any neglect or want of care. The loss of the package was occasioned by fire. The contract provides that the defendant should not be liable for a loss so occasioned, and as neither the defendant nor defendant's servant was wanting in care, it follows that it is not responsible for the loss.

Suppose the package had been lawfully intrusted by the Louisiana National Bank to a private person to be carried for hire, and delivered to the plaintiff, and it was contemplated by the parties that such person would transport the package and himself by the railroads, which, it was contemplated, the defendant would use, and the package had been lost under the same circumstances that the package delivered to the defendant was lost, would it for a moment be contended that such private person would be responsible?

Suppose, again, that a person should deliver to his friend, who contemplated coming from New Orleans to Louisville by the ordinary modes of travel, a watch, to be carried and delivered at the latter city, and that while such private carrier, without reward, was proceeding on his way in one of the cars of the Louisville and Nashville Railroad Company, the car should, by the gross carelessness of those having charge of it, be thrown from the track, and the watch in charge of the carrier, without any neglect on his part, destroyed. Is it conceivable that such carrier would be responsible for the loss? To hold that he would be responsible would not only violate the plainest principles of law, but would shock the common sense of mankind; and yet not only the private carrier for hire, but the private carrier without reward, is responsible for the loss of a package intrusted to him, under the circumstances supposed, if the defendant is responsible for the loss of the package claimed in this case.

The private carrier for hire is responsible for losses and injuries occasioned by want of ordinary care on his part, or on the part of his servants; and a private carrier without pay is responsible, if not for want of ordinary care, certainly for gross neglect. It cannot be maintained, with the least show of reason, that the Louisville and Nashville Railroad was any more the servant of the defendant in transporting the package sued for in this case than it is the servant of the carrier for hire, and the