nary bailees. They may make their terms; and we have seen the same thing as to carriers, so far as the terms are protective against the abuses of the bailor, or for the reasonable protection of the bailee, without hurt or serious inconvenience to the former. Nor am I able to make any distinction between a notice and a receipt or bill of lading. Being brought home to the plaintiff, the notice is equivalent to a special written contract. The cases, I believe, all agree in this. They may differ as to whether the restriction be a limitation of the contract, or only of damages under it, an exception or a proviso, and so may or may not be set forth in pleading; Clark v. Gray, 6 East, 564; Latham v. Rutley, 2 Barn. & Cress. 20, and the cases there cited; but the terms of the notice, when they are admissible, enter into the framework of the bargain, and must in some form be so regarded. The cases in Starkie are Nisi Prius decisions, indicating on their face the haste and want of books which are so common at the circuit; and yet it is claimed that they should at least strike a balance between conflicting authority, and surrender the law which shelters the travelling and trading community, to the discretion of its interested car. riers. It is indeed true, as Lord Ellenborough remarks, that there is no stopping-place, no half-way house. If the carrier can divest himself of liability for destruction by one kind of accident, or by one servant, he may in the same way go through the catalogue. He may exonerate himself at least from all, except gross neglect or misfeasance; and even in respect to these, he compasses nearly the same end by inverting the onus and darkening the horizon of evidence. I have said, that relaxing the Common Law rigor opens the high road to fraud, perjury, theft and robbery. It does more. Looking to the present ordinary, not to say universal means of travel and transportation, by coaches, railroads, steamboats, packets, and merchant vessels, the mere super-addition of negligence in respect to the safety of passengers and property, would constitute a most fearful item. There are no principles in the law better settled, than that whatever has an obvious tendency to encourage guilty negligence, fraud, or crime, is contrary to public policy. Such, in the very nature of things, is the consequence of allowing the common carrier to throw off or in any way restrict his legal lia

bility. The traveller and bailor is under a sort of moral duress, a necessity of employing the common carrier under those legal arrangements, which allow any number of persons to assume that character, and thus discourage and supersede the provision for other modes of conveyance. My conclusion is, that he shall not be allowed in any form to higgle with his customer, and extort one exception and another, not even by express promise or special acceptance, any more than by notice. He shall not be privileged to make himself a common carrier for his own benefit, and a mandatary, or less, to his employer. He is a public servant, with certain duties defined by law; and he is bound to perform those duties. As Ashhurst, J. said of the duties of innkeepers in Kirkman v. Shawcross, they are indelible. An innkeeper is said to be indictable for extortion. Per Holroyd, J. in Ansell v. Waterhouse, 2 Chit. R. 4. The obligation of a jailor to keep his prisoners, is much like that of the carrier in keeping goods. Bac. Abr. Escape in Civil Ca. (H.) He is also a public servant, and bound to perform the duties of his office. To demand and take an agreement for a special acceptance of his prisoner, would be extortion, and the qualification therefore void. In my opinion the same consequences result from the public character and absolute duties of the common carrier. I therefore think the defendants in the case at bar must take the consequence of their obligation as common carriers, notwithstanding the notice to the plaintiff. Admitting that the plaintiff acceded in the clearest manner to the proposition in the notice, that his baggage should be carried on the terms mentioned, I think the contract thus made was void on his part, as contrary to the plainest principles of public policy. In thus holding, we follow the law, as it is expressly admitted by the English Judges to have stood at the period when our ancestors declared themselves independent. And while we thus fulfil our constitutional duty, we are not, like Westminster Hall, obliged to lament while we enforce the law.

5*

THE NEW JERSEY STEAM NAVIGATION COMPANY,
RESPONDENTS AND APPELLAnts,

vs.

THE MERCHANTS' BANK OF BOSTON, LIBELLANts.

Supreme Court of the United States, (6 Howard's Rep. 344.)

A decree of the Circuit Court of Rhode Island affirmed, which was a judgment upon a libel in personam against a steamboat company for the loss of specie carried in their boat by one of the persons called "express carriers," and lost by fire in Long Island Sound.

[N. B. The following is so far an abridged Report of this case, that the arguments of counsel, and all the opinions of the Judges upon the question of admiralty jurisdiction, which was decided in favor of the libellants, are omitted. The portion of it which is given, is considered to be important, as illustrating the law in respect to the power of common carriers to restrict their Common Law responsibility, by special contracts and notices, and in respect to their responsibility for negligence, notwithstanding they have entered into such contracts, or given such notices; and also the law as to the liability of common carriers to be sued by an owner of goods delivered to them to be carried by an “express” agent.]

THIS was an appeal from the Circuit Court of the United States for the District of Rhode Island, in the exercise of admiralty jurisdiction.

In February, 1839, the State of New Jersey chartered a company by the name of the New Jersey Steam Navigation Company. with a capital of five hundred thousand dollars, for the purpose of purchasing, building, repairing, and altering any vessel or vessels propelled by steam, and in the navigation of the same, &c., &c.; under which charter they became proprietors of the steamboat Lexington.

On the 1st of August, 1839, the following agreement was made:

"This agreement, made and entered into this 1st day of August, A. D. 1839, in the city of New York, by William F. Harnden, of Boston, Massachusetts, on the one part, and Ch. Overing Handy, President of the New Jersey Steam Navigation Company, of the other part, witnesseth :

"That the said William F. Harnden, for and in consideration of the sum of two hundred and fifty dollars per month, to be paid monthly to the said New Jersey Steam Navigation Company, is to have the privilege of transporting in the steamers of said company, between New York and Providence, via Newport and Stonington, not to exceed once on each day, from New York and from Providence, and as less frequently as the boats may run between and from said places, one wooden crate, of the dimensions of five feet by five feet in width and height, and six feet in length (contents unknown), until the 31st of December, A. D. 1839, and from this date.

"The following conditions are stipulated and agreed to, as part of this contract, to wit:-The said crate, with its contents, is to be at all times exclusively at the risk of the said William F. Harnden; and the New Jersey Steam Navigation Company will not, in any event, be responsible, either to him or his employers, for the loss of any goods, wares, merchandise, money, notes, bills, evidences of debt, or property of any and every description, to be conveyed or transported by him in said crate, or otherwise, in any manner, in the boats of the said company.

"Further, that the said Harnden is to attach to his advertisements, to be inserted in the public prints, as a common carrier, exclusively responsible for his acts and doings, the following notice, which is also to attach to his receipts or bills of lading, to be given in all cases for goods, wares, and merchandise, and other property committed to his charge, to be transported in said crate or otherwise:

"Take notice. William F. Harnden is alone responsible for the loss or injury of any articles or property committed to his care; nor is any risk assumed by, nor can any be attached to, the proprietors of the steamboats in which his crate may be, and is transported, in respect to it or its contents, at any time.'

"Further, that the said Harnden is not to violate any provisions of the post-office laws, nor to interfere with the New Jersey Steam Navigation Company in its transportation of letters and papers, nor to carry any powder, matches, or other combustible materials of any kind, calculated to endanger the safety of said boats, or the property or persons on board of them.

"And that this contract may be at any time terminated by the New Jersey Steam Navigation Company, or by the said Harnden, upon one month's notice given in writing.

"Further, that a contract made by the said Harnden with the Boston and New York Transportation Company, on the 5th day of July, A. D. 1839, is hereby dissolved by mutual consent.

"In witness whereof, the said William F. Harnden has hereunto set his hand and seal, and the President of the said New Jersey Steam Navigation Company has hereto affixed his signature and the corporate seal of the company.

It is proper to remark, that, prior to the date of this agreement, Harnden had made a similar one with the Boston and New York Transportation Company, which became merged in the New Jersey Steam Navigation Company on the 1st of August, 1839. Harnden, having begun to advertise in the newspapers in July, 1839, whilst his contract with the Boston company was in force, continued to use the name of that company in the following advertisement, which was inserted in two of the Boston newspapers, until the end of the year 1839.

"Boston and New York Express Package Car. Notice to Merchants, Brokers, Booksellers, and all Business Men.

"Wm. F. Harnden, having made arrangements with the New York and Boston Transportation, and Stonington and Providence