§ 950. And this leads naturally to the consideration of the effect of an indirect or implied contract growing out of a general or particular notice given by the carrier. By the rules of the old common law, there were but two exceptions to the liability of a common carrier, in case of loss; first, by the "act of God," and second, "by the king's enemies." 4 This broad rule was first judicially restricted in England by a decision in 1804, in which it was held that a carrier could limit his liability by a general or special notice that he would not be responsible for loss.6 Since that decision, although much dissatisfaction has been repeatedly expressed, the doctrine has steadily grown, until it has become rooted into the common law of England.6 It has found an able apologist in Mr. Justice
1 Kimball v. Rutland & Burlington Railroad, 26 Vt. 248; Shaw v. York & N. Midland Railway, 13 Q. B. 347; Austin v. Manchester, etc, Railway Co., 16 Q. B. 600; 5 Eng. Law & Eq. 329; Crouch v. London & North Western Railway, 7 Exch. 705.
2 Davidson v. Graham, 2 Ohio St. 131; Fowles v. The Great Western Railway Co., 7 Exch. 699; 16 Eng. Law & Eq. 531.
3 Kimball v. Rutland & Burlington Railroad, 26 Vt. 248. See also Latham v. Rutley, 2 B. & C. 20; 3 Dowl. & Ryl. 211; Hughes v. Great Western Railway Co., 14 C. B. 637; White v. Great Western Railway Co., 2 C. B. (n. s. ) 7; York, etc, Railway Co. v. Crisp, 14 C. B. 527; Walker v. York & North Midland Railway Co., 2 El. & B. 750.
4 Hyde v. Trent & Mersey Nav. Co., 1 Esp. 36; Leeson v. Holt, 1 Stark. 186; Coggs v. Bernard, 2 Ld. Raym. 909; Forward v. Pittard, 1 T. R. 27.
5 Nicholson v. Willan, 5 East, 507. In Smith v. Home, 8 Taunt. 144, Mr. Justice Burroughs says: "The doctrine of notice was never known until the case of Forward v. Pittard, 1 T. R. 27," decided in 1785, but nothing in relation to the doctrine of notice appears in such case, or in any case subsequent until that of Nicholson v. Willan.
6 Southcote's Case, 4 Co. 84; Morse v. Slue, 1 Vent. 238; Nicholson v.
Best; but the general opinion has been, that its operation is injurious. Mr. Bell, in a lively manner, thus states its consequences: "Of the extravagance into which this doctrine has run, and the distracting points which come to be involved in it, the newspapers and the books of reports are full. One carrier frees himself from responsibility for fire; another even from the common responsibility of the contract, for negligence. One man is bound by a notice, which has appeared in a newspaper that he has been accustomed to read.; another, because a large board was stuck up in the office; while a third is freed from the effect of the notice in the office because handbills were circulated of a different import. Then, it is said, what if he cannot read ? or if he does not go himself, but sends a porter, and he cannot read ? Or, what if he be blind, and cannot see the placard ? And thus difficulties multiply; the courts are filled with questions, and the public left in uncertainty.." The same learned writer also says: "There seems to be only one point to which, legitimately, notices of carriers could be admitted, namely, the regulation of the consideration for risk. Saving always the power of making an express contract, the effect of a mere notice ought justly to be restricted to this point; as to which alone it is competent for a carrier to refuse employment. Had this been attended to, the law on this subject would have been conformable to the general system of jurisprudence, and we should not have seen a sort of legislative power assumed by carriers. Any exorbitancy of charge would at once have been brought to a true standard by judicial determination; while the responsibilities of the carrier, under the common law of his contract, and on the principles of public policy, would have remained untouched but by positive agreement in each individual case." 1
Willan, 5 East, 507; Clay v. Willan, 1 H. Bl. 298; Harris v. Packwood, 8 Taunt. 264; Evans v. Soule, 2 M. & S. 1; Smith v. Home, 8 Taunt, 146; Batson v. Donovan, 4 B. & Al. 39; Riley v. Home, 5 Bing. 217; Boden-ham v. Bennett, 4 Price, 34; Down v. Froraont, 4 Camp. 41; Story on Bailm. § 549, 554; Stat. 11 Geo. IV.; Stat. 1 Will. IV. ch. 68. There is an abridged statement of these statutes in Harrison's Digest, vol. i. p. 551, tit. Carriers; also in Hollister v. Nowlen, 19 Wend. 243; Smith on Merc. Law, B. 3, ch. 2, p. 233-238. 1 1 Bell, Comm. 382.
§ 951. This view taken by Mr. Bell seems to represent the general opinion in England; and an act of Parliament, recently passed on the subject, has in a measure re-established the old common-law doctrine, with the modifications here proposed.1 In the case of Hollister v. Nowlen,2 Mr. Justice Bron-son makes the following clear analysis of this act: "The act of Parliament already mentioned enumerates various articles of great value in proportion to the bulk, and others which are peculiarly exposed to damage in transportation, and declares that the carrier shall not be liable for the loss3 or injury of those articles when the value exceeds .£10, unless at the time of delivery the owner shall declare the nature and value of the property,4 and pay the increased charge which the carrier is allowed to make for his risk and care. If the owner complies with this requirement, the carrier must give him a receipt for the goods,' acknowledging the same to have been insured;' and if he refuse to give the receipt, he remains ' liable and responsible as at the common law." The provision extends to the proprietors of stage-coaches as well as all other carriers, and to property which may 'accompany the person of any passenger' as well as other goods; and the statute declares that after the first day of September, 1830, ' no public notice or declaration heretofore made, or hereafter to be made, shall be deemed or construed to limit or in any wise affect the liability at common law' of any carriers; but that all and every such carrier shall be ' liable as at the common law to answer' for the loss or injury of the property, 'any public notice or declaration by them made and given contrary thereto, or in any wise limiting such liability, notwithstanding.' " *