ful or ambiguous. Barney v. Prentiss &c. 4 Har. & J. 317. Supposing the owner to have knowledge of the notice, there is to be gathered from its terms the true nature and effect of the special contract. Cobden v. Bolton, 2 Camp. 108; Evans &c. v. Soule, 2 M. & S. 1; Maving v. Todd &c. 1 Stark. 72, 2 Eng. Com. Law Rep. 301. A simple notice of "all baggage at the risk of the owner," will certainly not exempt from liability for a parcel delivered not as baggage but as merchandize, and placed as such under the carrier's superintendence. Dwight &c. v. Brewster, 1 Pick. 50; Beckman &c. v. Shouse c. 5 Rawle 188.

How far the notice is rendered unavailing by the carrier or his agent knowing what the property is, and being told its value, was a question in Wilson v. Freeman, 3 Camp. 527, and Down v. Fromont, 4 Id. 40. Since these cases, it has been decided that the mere knowledge of what the parcel contained, and the value thereof, will not prevent the carrier from being protected by the notice. Harris v. Packwood, 3 Taunt. 271; Levi v. Waterhouse, 1 Price 280. Nor is it otherwise because the price of the carriage is to be paid on the delivery of the goods; for the notice would preclude the carrier on such delivery from charging any sum beyond the reasonable price of the carriage, exclusive of the responsibility of the risk for loss. Marsh v. Horne, 5 Barn. & Cress. 322, 11 Eng. Com. Law Rep. 243.

11. Effect of plaintiff's negligence in defeating lien; and of carrier's negligence in charging him notwithstanding The result after all depends on what the

the notice. contract is.

Though the notice be not an absolute bar, the plaintiff may be precluded from recovering when he has brought the loss upon himself by his manner of conducting the business. Bradley v. Waterhouse &c. 3 C. & P. 318, 14 Eng. Com. Law Rep. 326.

On the other hand, notwithstanding the notice, a carrier has been held responsible for a loss by felony arising through the gross negligence of the defendants or their servants, Butt &c. v. Great Western Railway Co. 11 Com. Bench (2 J. Scott) 140, 73 Eng. Com. Law Rep. 140; and indeed for negligence, whether the loss arose from a felony or not, Brooke v. Pickwick, 4 Bingh. 218, 13 Eng. Com. Law Rep. 404. He has been held responsible for a loss arising from the insufficiency of his machinery, Camden & Amboy Co. v. Burke, 13 Wend. 611; and responsible where goods which ought to

have been delivered at one place have been wrongfully carried beyond it, Ellis v. Turner, 8 T. R. 531; or where on its being found in the course of a journey in a wagon that a cask of brandy leaked, the wagoner, though informed of it, took no step to prevent the leakage and a considerable quantity of the brandy was lost, Beck v. Evans, 3 Camp. 267, 16 East 244. In such cases the carrier who would not have been liable if ordinary diligence had been used, was held liable because of what was deemed gross negligence. Bodenham &c. v. Bennett &c. 4 Price 31; Birkott v. Willan &c. 2 Barn. & Ald. 356. Though exempt from those peculiar liabilities which attach to him only in his character of carrier, he was considered not exempt from liability for such misfeasance as every bailee is responsible for. Garnett &c. v. Willan &c. 5 Barn. & Ald. 53, 7 Eng. Com. Law Rep. 19. In the greater number of the cases in which the carrier was held responsible for gross negligence, Bayley, B. considered him guilty of misfeasance. Owen v. Burnett, 2 C. & M. 353. He regarded as such the carrier's delivering the parcel to a wrong person, Duff &c. v. Budd, 6 J. B. Moore 469, 3 Brod. & Bingh. 177, 17 Eng. Com. Law Rep. 177; his carrying it (as in Ellis v. Turner) beyond the place of delivery; the substitution of a different mode of conveyance in Sleat &c. v. Fagg, 5 Barn. & Ald. 342, 7 Eng. Com. Law Rep. 123; and the leaving his cart in the public street unprotected whilst the porter went to deliver another parcel, Smith v. Horne &c. 2 J. B. Moore 18, 8 Taunt. 144, 4 Eng. Com. Law Rep. 50.

With reference to the responsibility of the carrier, Best, J. considered there was no sound distinction between negligence and misfeasance. 5 Barn. & Ald. 53. Whether to make him responsible after the notice there must be misfeasance or gross negligence, or whether it was enough to shew ordinary negligence was regarded by Parke, B. a question on which there was some uncertainty. Wyld v. Puckford, 8 M. & W. 461. "It may," says Lord Denman, "well be doubted whether between 'gross negligence' and negligence merely any intelligible distinction exists." 2 Adol. & El. N. S. 661, 42 Eng. Com. Law Rep. 854.

In a late case in which the question turned upon a contract which in express terms exempted the railway company from responsibility for damages, however caused, to horses &c. the court thought that giving those words the most limited meaning, they must apply to all risks of whatever kind, and however encountered in the course of the journey; one of which (it said) undoubtedly is the risk of a wheel taking fire owing to a neglect to grease it. Whether, said the court, that is

called negligence merely, or gross negligence, or whatever other epithet may be applied to it, we think it is within the exemption from respousibility provided by the contract. Austin v. Railway Co. 10 Com. Bench (1 J. Scott) 475, 70 Eng. Com. Law Rep. 474.

12. How the common law liability of carriers is altered in England by the statute of 1 Will. IV. c. 68. This statute proposed in Virginia but not adopted as proposed.

The common law liability of carriers having often pressed heavily upon them in respect to articles of great value for which they received a small compensation, a mode by which they might secure themselves from such liability, was provided by the act of 11 Geo. IV. and 1 Will. IV. c. 68, cited in 1 Car. & Marsh. 48, (41 Eng. Com. Law Rep. 32,) 6 W. H. & G. 773, and 9 Eng. Law & Eq. 506, 7; under which act decisions were made in Mayhew Sc. v. Nelson &c. 6 C. & P. 58; Syms v. Chaplin &c. 5 Adol. & El. 634; Owen v. Burnett, 2 C. & M. 353, 4 Tyrwh. 133; Boys v. Pink &c. 8 C. & P. 361, 34 Eng. Com. Law Rep. 429; Davey v. Mason, 1 Car. & Marsh. 45, 41 Eng. Com. Law Rep. 30; Stoessiger v. So. Eastern Railway Co. 3 El. & Black. 549, 77 Eng. Com. Law Rep.; 25 Eng. Law & Eq. 235.

Considering that there was great doubt and uncertainty, if not hardship to be removed by the act, and that protection to carriers was its object, the court of queen's bench thought there was no reason for putting upon it a more limited construction than its language requires. By holding the carrier exempt from liability as to the enumerated articles, unless the owner shall declare their nature and pay for them, in the manner prescribed, the court has furthered the object of the act and given it the effect of removing doubts and difficulties as to the carrier's liability after he had sought to limit it by a notice. Hinton v. Dibbin, 2 Adol. & El. N. S. 663; 42 Eng. Com. Law Rep. 855. In no case of an article so enumerated can the sender recover unless he has in the first instance, given information of the nature and value. Hart v. Basendale, 6 W. H. & G. 769, 9 Eng. Law & Eq. 505.

While the act declares that the carrier shall not be liable unless the article sent be insured, it goes on to provide that whether it be insured or not, the carrier shall still be liable "to answer for loss or injury to any goods or articles whatsoever arising from the felonious acts of any coachman, guard, book-keeper, porter or other servant in his employ." Whoever discharges the duty which a railway company may have

undertaken, is considered, in point of law, their servant within the meaning of this statute. Macher v. Railway Co. 2 W. H. & G. 426.

Under 4, the liability of a carrier is not to be affected by any public notice or declaration; this was to avoid the question which so often arose, whether notice had been brought home to a customer. But 6 provides that nothing in the act shall affect a special contract. Under this section the

owner may sign a ticket, such as is mentioned ante, p. 530, limiting his liability. Having thus entered into a special contract, he is bound by it. Morville v. Gt. N. Railway Co. 10 Eng. Law & Eq. 366. Though the ticket be not signed by him, yet if it be given to him at the time the money is paid, that is evidence of a special contract. Y. N. & B. Railway v. Crisp &c. 14 Com. Beuch (5 J. Scott) 527, 78 Eng. Com. Law Rep. 527, 25 Eng. Law & Eq. 396. The act says nothing as to the mode in which such a special contract shall be made it is not required to be in writing or signed; nor is there any other formal requisite; so that in every case it is a question of fact whether there was such a contract. Walker v. Y. & N. M. Railway, 2 El. & Black. 750, 75 Eng. Com. Law Rep. 750, 22 Eng. Law & Eq. 315.

The revisors of the Code of Virginia thinking the statute (11 Geo. IV. and 1 Will. IV. c. 68,) a proper one to be incorporated in the Code, with certain modifications of it which they made, proposed the following as chapter 147:

§ 1. No common carrier shall be liable for the loss of or injury to any gold or silver, precious stone, trinket, jewelry, watch, clock, bank note, security for money, deed, or other writing, gold or silver plate, or plated article, glass, china, silk not made up as apparel, furs or lace, contained in any parcel or package delivered to be carried for hire, or to accompany the person of any passenger, in any conveyance of such carrier, when the value of what is contained in such parcel or package shall exceed fifty dollars, unless at the time of the delivery thereof at the receiving place of such carrier, for the purpose of being carried, or of accompanying the person of any passenger as aforesaid, the value and nature of such article of property shall be declared by the person delivering the same, and such increased charge as hereinafter mentioned be paid or tendered to, or an engagement to pay the same be accepted by the person receiving such parcel or package.

§ 2. When any parcel or package containing any of the said articles shall be so delivered and its value and contents declared as aforesaid, and such value shall exceed fifty dollars, it shall be lawful for such carrier to demand and receive an increased rate of charge, not exceeding one per centum on the value of such contents, (over and above the ordinary rate of carriage,) as a compensation for the greater risk and care to be taken for the safe conveyance of such valuable articles.

Such increased rate of charge shall be stated in a notice affixed in legible characters, in some conspicuous part of the warehouse or other place where such packages or parcels are received by the said carrier for the purpose of conveyance; and every person sending or delivering a parcel or package containing any of the said articles at such warehouse or other place, shall be bound by such notice, without further proof of the same having come to his knowledge.

§ 3. When the value shall have been so declared, and an increased rate of charge paid or tendered, or an engagement to pay the same accepted, as before mentioned, the person to whom such payment or tender is made, or by whom such engagement is accepted, shall, if thereto required, sign a receipt for the package or parcel, acknowledging the same to have been insured. If such receipt shall not be given when required, or if such notice as aforesaid shall not have been affixed, such carrier shall not have any benefit from this chapter, but shall be liable as at the common law, and refund the increased rate of charge.

§ 4. No public notice or declaration, other than is allowed by this chapter, shall be construed to limit or affect the liability at common law of any such carrier, for, or in respect of any article carried after the commencement of this chapter. But this chapter shall not be construed to annul or in any wise affect any special contract between such carrier and any other party for the conveyance of any article.

§ 5. Nothing in this chapter shall protect any common carrier for hire, from liability for loss of, or injury to any article, arising from the felonious act of any of his agents or servants, nor protect any such agent or servant from liability for loss or injury occasioned by his own neglect or misconduct.

§ 6. Where common carriers are not incorporated, any one or more of them may be sued by his or their name or names only, to recover damages for loss or injury to any parcel, package or person; and such suit shall not abate for the want of joining any of his coproprietors or copartners.

§ 7. No common carrier shall be concluded as to the value of any such parcel or package by the value so declared as aforesaid, but he or they shall, in all cases, be entitled to require from the party suing in respect of any loss or injury, proof of the actual value of the contents, by the ordinary legal evidence; and the carrier shall be liable to such damages only as shall be so proved not exceeding the declared value.

This chapter was reported by the joint committee on revision and passed the house of delegates; but in the senate the whole chapter was struck out except the 6th section. That section is now chapter 147 of the Code, p. 588.

13. When the liability of the carrier begins; and how long it continues; distinction between the liability of carrier and that of warehouseman.

Carriers of passengers and their baggage, who in conducting their business keep an office where they are in the habit