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portant that railroad companies should be held to the exercise of due diligence at least. And as to the distinction taken by some, that negligence of servants may be stipulated for, the court pertinently says: "This doctrine, when applied to a corporation which can only act through its agents and servants, would secure complete immunity for the neglect of every duty" (pp. 75, 76). And in relation to a drover's pass, substantially the same as that in the present case, the same court, in Cleveland, etc., R. R. v. Curran, 19 Ohio St. 1, held: 1. That the holder was not a gratuitous passenger; 2. That the contract constituted no defense against the negligence of the company's servants, being against the policy of the law, and void. The court refers to the cases of Bissell v. The New York Central R. R., 25 N. Y. 442; and of Pennsylvania R. R. v. Henderson, 51 Penn. St. 315; and expresses its concurrence in the Pennsylvania decision (pp. 12, 13). This was in December term, 1869.

The Pennsylvania and Ohio decisions differ mainly in this, that the former give to a special contract (when the same is admissible) the effect of converting the common carrier into a special bailee for hire, whose duties are governed by his contract, and against whom, if negligence is charged, it must be proved by the party injured; whilst the latter hold that the character of the carrier is not changed by the contract, but that he is a common carrier still, with enlarged exemptions from responsibility, within. which the burden of proof is on him to show that an injury occurs. The effect of this difference is to shift the burden of proof from one party to the other. It is unnecessary to adjudicate that point in this case, as the judge on the trial charged the jury, as requested by the defendants, that the burden of proof was on the plaintiff.

In Maine, whilst it is held that a common carrier may, by special contract, be exempted from responsibility for loss occasioned by natural causes, such as the weather, fire, heat, frost, etc. (Fillbrown v. Grand Trunk R. R. Co., 55 Me. 462), yet, in a case where it was stipulated that a railroad company should be exonerated from all damages that might happen to any horses or cattle that might be sent over the road, and that the owners should take the risk of all such damages, the court held that the company were not thereby excused from the consequences of their negligence, and that the distinction between negligence and gross negligence in such a case is not tenable. "The very great danger," says the court, "to be anticipated by permitting them" (common carriers) "to enter into contracts to be exempt from losses occasioned by misconduct or negligence, can scarcely be overestimated. It would remove the principal safeguard for the preservation of life and property in such conveyances." Sager v. Portsmouth, 31 Me. 228, 238.

To the same purport it was held in Massachusetts

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in the late case of School District v. Boston, etc., R. R. Co., 102 Mass. 552, where the defendant set up a special contract that certain iron castings were taken at the owner's risk of fracture or injury during the course of transportation, loading, and unloading, and the court say: "The special contract here set up is not alleged, and could not by law be permitted, to exempt the defendants from liability for injuries by their own negligence" (p. 556).

To the same purport, likewise, are many other decisions of the State courts, as may be seen by referring to the cases cited in the margin, some of which are argued with great force and are worthy of attentive perusal, but, for want of room, can only be referred to here.*

These views as to the impolicy of allowing stipulations against liability for negligence and misconduct are in accordance with the early English authorities. St. Germain, in The Doctor and Student, Dial. 2, c. 38, pointedly says of the common carrier: "If he would per case refuse to carry it" (articles delivered for carriage) "unless promise were made unto him that he shall not be charged for no misdemeanor that should be in him, the promise were void, for it were against reason and against good manners, and so it is in all other cases like."

A century later this passage is quoted by AttorneyGeneral Noy in his book of Maxims as unquestioned law. Noy's Max. 92. And so the law undoubtedly stood in England until comparatively a very recent period. Sergeant Steven, in his Commentaries, vol. 2, p. 135, after stating that a common carrier's liability might, at common law, be varied by contract, adds that the law still held him responsible for negligence and misconduct.

The question arose in England principally upon. public notices given by common carriers that they would not be responsible for valuable goods unless entered and paid for according to value. The courts held that this was a reasonable condition, and, if brought home to the owner, amounted to a special contract valid in law. But it was also held that it could not exonerate the carrier if a loss occurred by his actual misfeasance or gross negligence. Or, as Starkie says, "proof of a direct misfeasance or gross negligence is in effect an answer to proof of notice." Evid., vol. 2, p. 205, 6th Am. ed. But the term gross negligence" was so vague and uncertain that it came to represent every instance of actual negligence of the carrier or his servant- or ordinary negligence in the accustomed mode of speaking. Hinton v. Dibbin, 2 A. & E., N. Ser. 649; Wild v. Pickford, 8

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* Indianapolis R. v. Allen, 31 Ind. 394; Mich. South. R. v. Heaton, 31 id. 397, note; Flinn v. Phila., Wilm. & Balt. R., 1

Houston's Del. R. 472; Orndorff v. Adams' Exp. Co., 3 Bush. (Ky.) R. 194; Swindler v. Hilliard & Brooks, 2 Rich. (S. C.) 286; Berry v. Cooper, 28 Ga. 543; Steele v. Townsend, 37 Ala. 247; Southern Express Co. v. Crook, 44 id. 468; Whitesides v. Thurl kill, 12 Sm. & Mar. 599; Southern Express Co. v. Moon, 39 Miss. 822; N. O. Mutual Ins. Co. v. Railroad Co., 20 La. Ann. 302.

M. & W. 460. Justice Story in his work on bailments, originally published in 1832, says that it is now held that, in cases of such notices, the carrier is liable for losses and injury occasioned not only by gross negligence, but by ordinary negligence, or, in other words, the carrier is bound to ordinary diligence. Story on Bailments, § 571.

In estimating the effect of these decisions it must be remembered that, in the cases covered by the notices referred to, the exemption claimed was entire, covering all cases of loss, negligence as well as others. They are, therefore, directly in point.

383. On the precise point now under consideration, Justice Nelson said: “If it is competent at all for the carrier to stipulate for the gross negligence of himself and his servants or agents, in the transportation of goods, it should be required to be done, at least, in terms that would leave no doubt as to the meaning of the parties."

As to carriers of passengers, Mr. Justice Grier, in the case of Philadelphia and Reading R. R. v. Derby, 14 How. 486, delivering the opinion of the court, said: "When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance, or the negligence of careless agents. Any negligence, in such cases, may well deserve the epithet of 'gross.'” That was the case of a free passenger, a stockholder of the company, taken over the road by the president to examine its condition; and it was contended in argument, that as to him, nothing but "gross negligence" would make the company liable. In the subsequent case of The Steamboat New World v. King, 16 How. 469, which was also the case of a free passenger carried on a steamboat, and injured by the explosion of the boiler, Curtis, Justice, delivering the

In 1863, in the great case of Peek v. The North Staffordshire Railway Co., 10 House of Lords Cases, 473, Mr. Justice Blackburn, in the course of a very clear and able review of the law on the subject, after quoting this passage from Justice Story's work, proceeds to say: "In my opinion, the weight of authority was, in 1832, in favor of this view of the law, but the cases decided in our courts between 1832 and 1854 established that this was not the law, and that a carrier might, by a special notice, make a contract limiting his responsibility even in the cases here mentioned of gross negligence, misconduct, or fraud on the part of his servants; and, as it seems to me, the reason why the legislature intervened in the railway and canal traffic act, 1854, was because it thought that the companies took advantage of those decisions (in Story's language), 'to evade altogether the salu-judgment, quoted the above proposition of Justice tary policy of the common law.'"

Grier and said: "We desire to be understood to reaffirm that doctrine, as resting not only on public

This quotation is sufficient to show the state of the law in England at the time of the publication of Jus-policy, but on sound principles of law" (p. 474). tice Story's work; and it proves that, at that time, common carriers could not stipulate for immunity for their own or their servants' negligence. But in the case of Carr v. Lancashire R. Co., 7 Exch. 707, and other cases decided whilst the change of opinion al- | luded to by Justice Blackburn was going on (several of which related to the carriage of horses and cattle), it was held that carriers could stipulate for exemption from liability for even their own gross negligence. Hence the act of 1854 was passed, called the railway | and canal traffic act, declaring that railway and canal companies should be liable for negligence of themselves or their servants, notwithstanding any notice or condition, unless the court or judge trying the cause should adjudge the conditions just and reasonable. 1 Fisher's Dig. 1466. Upon this statute ensued a long list of cases deciding what conditions were or were not just and reasonable. The truth is, that this statute did little more than bring back the law to the original position in which it stood before the English courts took their departure from it. But as we shall have occasion to advert to this subject again, we pass it for the present.

It remains to see what has been held by this court on the subject now under consideration.

We have already referred to the leading case of The N. J. Steam Nav. Co. v. Merchants' Bank, 6 How.

In York Company v. Central Railroad, 3 Wall. 113, the court, after conceding that the responsibility imposed on the carrier of goods by the common law, may be restricted and qualified by express stipulation, adds: “When such stipulation is made, and it does not cover losses from negligence or misconduct, we can perceive no just reason for refusing its recognition and enforcement." In the case of Walker v. The Transportation Co., decided at the same term (3 Wall. 150), it is true, the owner of a vessel destroyed by fire on the lakes, was held not to be responsible for the negligence of the officers and agents having charge of the vessel; but that was under the act of 1851, which the court held to apply to our great lakes as well as to the sea. And in Express Co. v. Kountze Brothers, 8 Wall. 342, where the carriers were sued for the loss of gold-dust delivered to them on a bill of lading excluding liability for any loss or damage by fire, act of God, enemies of the government, or dangers incidental to a time of war, they were held liable for a robbery by a predatory band of armed men (one of the excepted risks), because they negligently and needlessly took a route which was exposed to such incursions. The judge, at the trial, charged the jury that although the contract was legally sufficient to restrict the liability of the defendants as common carriers, yet if they were guilty of

actual negligence, they were responsible; and that they were chargeable with negligence unless they exercised the care and prudence of a prudent man in his own affairs. This was held by this court to be a correct statement of the law.

CURRENT TOPICS.

The bankrupt law, especially as to the portion relating to involuntary bankruptcy, has become exceedingly oppressive to the business community, and we hope that the agitation for a repeal which, during the late monetary crisis had gained considerable strength, will now make itself felt in the national legislature. While now and then a debtor may, by the provisions of this law, be prevented from a partial or dishonest disposition of his estate, in most instances the only persons who reap any benefit are the various officials connected with the Federal courts. And it is not alone through the official costs and fees that those interested in the estate of a bankrupt suffer. The property taken possession of under the bankruptcy warrant is very frequently injured, lost or stolen while in the hands of the officers of the court. In fact involuntary bankruptcy means the sacrifice of the debtor's estate, and such is the general feeling among merchants upon the subject, that no one anxious to have the affairs of an insolvent debtor honestly and equitably settled ever thinks of invoking the aid of bankruptcy process.

There is some hope, however, that the creditors of a debtor.who falls into the hands of the Federal marshals will hereafter stand a chance to obtain some share of his property, at least if such debtor lives in Michigan, East District. Judge Longyear has decided that a marshal is not entitled to travel fees unless he travels, and that he can charge but one journey at one time. That is to say, constructive mileage is forbidden and where an officer has two or more processes in his hands at the same time, in the same matter or proceeding, he can charge mileage but once. These holdings, to which we invite the attention of United States marshals and deputies in this State, are in the Matter of Donahue & Page, 8 National Bakruptcy Register, 453.

age for themselves, although we cannot see what justice there is, or ever has been, in the government | affording to the publishers of those sheets, favors which the rest of the people do not enjoy. The feeling of our people and the tendency of the age, is against class privileges, and we trust that a step backward will not be taken in the matter of postal legislation.

The constitution proposed for adoption in Pennsylvania, whether it meet the approval of the politicians or not, is an epitome of the best ideas of the present day in regard to what ought to be the fundamental law. It is a clear, consistent document, embodying no crude theories, but filled with sensible provisions for the regulation of the State government. The men who framed this organic act were evidently those of experience in the business of legislation, knowing the dangers to which a democratic form of government is exposed, and what practical measures would be most likely to guard the body politic against them. Many things which we have hoped to see in our own constitution we find here, and we believe that the future experience of Pennsylvania, if the proposed constitution shall be adopted, will be such as to justify and encourage our hope. Article III of this instrument, upon the subject of legislation, contains perhaps the more important provisions. The limitations to legislative power are numerous, but we believe no more so than they ought to be. The legislature is restricted to a fixed mode of enacting laws. No law can be passed except by bill, and no amendment can be made to a bill changing its original purpose. Provisions also exist to prevent the hurrying of legislation. The legislature is prohibited from passing special laws in most instances, and is very strictly limited in the matter of appropriations. No appropriation can be made except for certain specified public purposes in the general bill, but every private appropriation must be by special bill. And by sections 17 and 18 of the article "no appropriation shall be made to any

charitable or educational institution not under the absolute control of the Commonwealth, other than normal schools established by law for the professional training of teachers for the public schools of the State, except by a vote of two-thirds of all the members elected to each house. No appropriations, except for pensions or gratuities for military services, shall be made for charitable, educational or benevolent purposes to any person or community, nor to any denominational or sectarian institution, corporation or association." Section 21 forbids the limitation, by legislative enactment, of the amount to be recovered for death from injuries or for injuries; forbids a special statute of limitation for corporations and abrogates all existing acts of the character forbidden. These provisions are doubtless in consequence of legislation now in force

Up to Monday, the 8th inst., nearly 500 bills had been introduced into congress. As that body commenced operations only the Wednesday previous, its members cannot be said to be deficient in energy, at least, in the direction of law-making. How much of the proposed legislation is in the interest of the country it is impossible to say, but we think that there will be reason to be thankful if such part of it as becomes law does no harm. Among the bills introduced into congress are a dozen or more looking to a modification of the 'aw of the last session, repealing the franking privilege. The country newspapers are clamorous for free post-limiting the recovery in case of injury by acci

dent from negligence, to very small amounts. Of course these various provisions provoke a large amount of discussion, and there is in some localities a bitter opposition to the constitution. Prejudice and personal interest, or both combined, impel many influential individuals to advocate its defeat, but the friends of good government in Pennsylvania are earnest in its behalf, and we trust that the setting of the sun on Tuesday next will find it chosen as the fundamental law of that rich and populous Commonwealth.

tially revoking a will by the obliteration of portions of it, and that the will in question, as originally executed, should be admitted to probate.

As to the impossibility of changing or revoking a will by modes other than those named in the statute, this case is in harmony with Jackson v. Holloway, 7 Johns. 394; Onions v. Tyree, 1 P. Wms. 343; Short v. Smith, 4 East, 419; Ex parte The Earl of Ilchester, 7 Ves., Jr., 348; Rudy v. Ulrich, 69 Penn. St., 8 Am. Rep. 238.

THE DEATH OF JUDGE PECKHAM. The Court of Appeals on Thursday week gave formal expression of their sense of the loss sustained by the

The procedure in England of inducting a Lord Chief Justice into office, is no doubt very solemn and impressive to those who have been properly instructed, public and by members of the court by the death of

but we must confess that to our imperfect apprehen-
sion it seems very ridiculous. The inauguration of
Sir John D. Coleridge, recently, as we gather it from
the English law papers, was conducted something as
follows: Justices Keating and others took their seats
upon the bench, Sir John at the same moment ap-
peared at the back of the bar and walked up to the front
where he halted. A mock lawsuit, or as it is called
a pleading on a writ of dower, was gone through
Mr. Sergeant Ballantine appearing for the plaintiff,
and Sir J. D. Coleridge for the defendant, who, hav-
ing "counted," read the counts in the declaration and
pleaded thereto. Mr. Sergeant Parry prayed leave
to impart. The writ and pleadings having been read
by the Master of the court were ordered to be re-
corded, and Sir John, who had now become Sergeant
Coleridge, was called within the bar. Then, said Mr.
Justice Keating, "Brother Coleridge, will you move
any thing?" Brother C. seeing nothing to move,
and being about to move himself, bowed, shook hands
all round and bid farewell to the bar. The court ad-
journed for a few moments. When it re-convened,
the late sergeant appeared in the robes of office and
wearing a gold chain, took the customary oaths and
entered upon the discharge of his duties as Lord
Chief Justice of the Court of Common Pleas.

NOTE OF CASE.

In Quinn v. Quinn, 1 N. Y. Sup. Ct. Rep. 437, a will was presented for probate which had, after being duly executed by the testator, been by him written upon, and in portions obliterated. The testator having changed his mind as to certain legacies, attempted to alter his will in accordance therewith by blotting out the names of the legatees and interlining other names; in some instances giving his reasons for the change. He also, in the same way, attempted to appoint a new executor as a substitute for one named in the will. The question before the court was what effect the obliterations had upon the will, there evidently being no intention on the part of the testator to revoke the whole will thereby. It was held that they had no effect, there being no provision for par

Judge Peckham. The court room and the chair of the deceased judge were draped in mourning.

Directly after the opening of the court, Chief Judge Church presented the following:

The judges of the Court of Appeals, at their first meeting in consultation after the receipt of the melancholy intelligence of the death of their late associate, Hon. Rufus W. Peckham, by the terrible disaster at sea on the 22d ult., in view of the public loss sustained by his death, and of their private grief at the sudden decease of their friend and associate, deem it proper to place upon the records of the court this expression of their estimate of his services and character.

Judge Peckham has, for many years, been identified with the judiciary of the State. His judicial career began as a judge of the Supreme Court, to which he was elected in the district where he had spent the whole of his professional life; and the qualities which distinguished him as a judge in that position led to his nomination and election as an associate judge of this court on its organization. His firmness, his learning and his fearlessness and independence in maintaining his convictions, guided always by a strong sense of justice, which was a distinguishing feature of his character, won the confidence and respect of the bar and bench, and of all with whom he was associated.

Exhausted by continual application to the discharge of the duties of his position, at the suggestion of his medical advisers, and with the cordial concurrence of his associates, but with reluctance on his part, he sought for a time relief from labor, and to recruit his energies by temporary absence. At almost the first step of his journey - from which his friends hoped he would derive so much benefit- he met with a tragic death.

While we regard the public loss sustained as the paramount one, we cannot refrain from expressing in this public manner our personal attachment to the deceased.

The association of the members of the court with each other is necessarily most intimate, and it devel

oped in the character of our deceased brother rare and attractive qualities. His candor in discussion, patience under opposition, his uniform courtesy to his associates, his kindness and tenderness of feeling, evinced a manly and generous nature, and so endeared him to us, both as a man and colleague, that his death is felt by us as a family affliction. We tender to the surviving relatives of the deceased our deep sympathy, and commend them to the consolation (though inadequate) to be found in the record of a useful and honorable life.

The members of the court will wear the usual badge

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A meeting of the bar of Albany county was held at the City Hall this afternoon, for the purpose of initiating arrangements for a more formal meeting, to give expression to the sentiments of the bar with reference to the loss it has sustained in the death of Judge Peckham.

The meeting was called to order by Orlando Meads, Esq., on whose motion Matthew Hale was appointed chairman. T. J. Van Alstyne was appointed secretary of the meeting.

On motion of Judge Clute, seconded by Mr. Meads, a resolution was adopted that a committee be appointed to consist of the chairman, secretary and five others, to be designated by the chair, to make arrangements for a meeting in memory of Judge Peckham, to be held during the present session of the Court of Appeals, to which the members of the bar of the county and the State should be invited.

The chair designated Messrs. J. H. Clute, Orlando Mead, A. J. Parker, John H. Reynolds and Paul F. Cooper to serve on such committee.

THE RESIGNATION OF JUDGE SHERMAN.

In tendering the president his resignation as judge of the United States District Court for the northern district of Ohio, Judge Charles T. Sherman says he is not aware that he has been suspected or accused of official misconduct, and refers to recent action of the Cleveland bar in asking him to resign as being influenced by motives far worse than any attributed to him. He adds:

"The only fault that has been found with me by those who took part in the proceeding of the Cleveland bar grows out of my employment by the late Mr. Lockwood to aid him and other brokers of New York in procuring the reversal or repeal of a grossly erroneous and unjust construction by a revenue officer of a revenue law that affected only the brokers residing in the XXXIId district of New York. This employment could in no way conflict with my official duties. The subject-matter could in no form come before me for judicial action. No law or moral obligation prohibits a judge from seeking the repeal of any law, with or without compensation. The gentleman who employed me knew of my official position, and that it could not aid him. He knew, also, that I would not personally aid him in Washington, but would rely on Judge Bartley and R. C. Parsons to present the matter to the proper authorities. I did all that I assumed to do. The law was repealed, and I believed it was done through their agency. The claim for compensation was founded upon that belief. I erred when making the claim in not specifically stating who rendered the services, instead of treating their rights as my own, which I had a right to do. But nothing was done by either of these gentlemen which I could not lawfully

and properly do. I deny, therefore, that I have done any thing that I might not lawfully and properly do, either as a citizen or as a judge, and upon this issue I might cheerfully and with great confidence appeal to the only tribunal that can try any accusation against me. But the leading and governing motive which actuates me in offering this resignation is the wish to avoid the publicity that must necessarily result in meeting this accusation. Constituted as I am, rather than undergo the pain of having my name and actions and motives, and those of my family and relatives, canvassed and commented upon in a friendly or unfriendly spirit by persons either in or out of congress, I would prefer to retire from my present position."

JUDGE SHERMAN'S SUCCESSOR.

Of ex-congressman Martin Welker, who has been appointed judge of the United States District Court for northern Ohio, in place of Charles T. Sherman, resigned, the Cleveland Leader says: "Judge Welker is a native of Knox county, Ohio, where he was born on the 25th of April, 1819. He gained his primary law education by hard study while working on a farm, and was admitted to the bar in 1840. In 1846 he was clerk of the Court of Common Pleas for Holmes county, which position he held until 1851, when he was elected judge of the Common Pleas] for the sixth district, in which office he served five years. He removed to Wooster, Wayne county, in 1857, and was immediately afterward elected lieutenant-governor of Ohio, and at the end of his term, two years later, declined a renomination for that position. During the war he was first aid-de-camp and acting judge-advocate-general of the staff of the governor of Ohio; then in 1862 was made adjutant-general of the State and superintended the drafts of 1863 and 1864, until elected during the autumn of the latter year to a seat in the thirty-ninth congress, where he served on the committees on resolutions, pensions, and the District of Columbia. Judge Welker is a hearty and consistent republican, and a gentleman of high integrity."

ATTORNEY-GENERAL WILLIAMS' REPORT.

It appears by the report of Attorney-General Williams that the civil suits on July last to which the United States were a party, were as follows: Customs' suits, 3.759; internal revenue suits, 1,482; post-office suits, 142; miscellaneous suits, 2,216-making in the aggregate 7,599 suits pending on that day. During the same year the aggregate amount of judgments in favor of the United States in these suits was $3,208,402, and the amount actually realized on the judgments was $1,698,133. There were pending on July 1, last, in Circuit and District Courts of the United States, 6,274 criminal prosecutions, the result of which is given in the report.

Exhibits are also given of the number and results of civil suits in the Federal courts. A total of 15,141 suits of all classes were commenced in the year ending with June last. The total number terminated was 7,276. A summary of the business transacted by the Court of Claims for the past year shows that the miscellaneous cases disposed of amounted to 1,493; cotton cases, 107; total, 1,600. The amount claimed was $7,015,223. The amount awarded was as follows: In the miscellaneous cases, $753,402; in the cotton cases, $3,130,398, making a

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