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But, as we have already said, since the legislature | legislatnre to levy taxes in as full a manner as the which passed the act of 1865 had the power to make a constitution will permit. But so long as the macontract which should not be subject to repeal or jority of this court adhere to the contrary doctrine, modification by one of the parties to it without the he must, when the question arises, join with the other consent of the other, the main question here is, did judges in considering whether such a coutract has they intend to make such a contract ?
been made. The principal function of a legislative body is not to In the case now under consideration, it is conceded make contracts, but to make laws. These laws are put | on all hands that the act of 1865 was a contract for å into a form which, in all countries using the English tax of one-half of one per centum per annum on the language and inberiting the English common law, is cost of the Morris and Essex Railroad, and no more. called a statute.
But counsel for defendant says the contract was reUuless forbidden by some exceptional constitutional pealable; that the legislature of its own volition could provision, the same authority which can make a law impose other and more burdensome taxes at its discan repeal it. The constitution of the United States cretion; that it was a contract so long as the legislahas imposed such a limitation upon the legislative | ture of New Jersey was satisfied with it, and no longer. power of all the States by declaring that no State shall It is conceded, also, that this construction of it canpass any law impairing the obligation of a contract. not be sustained, unless we are bound to import into The frequency with which this court has been called | it, either the reservation clause of the act of 1836, on to declare State laws void, because they do impair or what is called the interpretation act of 1846. We the obligation of contracts, shows how very importaut have already shown how little reason there is for doand far-reaching that provision is.
ing this on general principles of construction. We It may safely be said that in far the larger number think it still clearer that it cannot be done, because it of cases brought to this court under that clause of the
is inconsistent with the legislative intent in passing constitution the question has been as to the existence the act of 1865. and nature of the contract, and not the construction 1. The legislature was not willing to rest this conof the law which is supposed to impair it; and the tract in the usual statutory form alone, depending for greatest trouble we have had on this point has been in its validity as a contract upon some action of the corregard to what may be called legislative contracts — poration under it to bind it to its terms, but they recontracts found in statute laws of the State if they quired of the company a formal written acceptance existed at all. It has become the established law of within sixty days, or else it became wholly inoperative. this court that a legislative enactment, in the ordinary The company duly executed this acceptance. There form of a statute, may contain provisions which, when was, then, the complete formal written instrument accepted as the basis of action by individuals or cor evidencing this contract, signed by the presiding porations, become contracts between them and the officers of the two houses of the New Jersey legislaState within the protection of the clause referred to ture, and the governor, for one party, and the presiof the Federal constitution.
dent and secretary and seal of the railroad company, The difficulty in this class of cases has always been of the other party. It does seem as if the legislative to distinguish what is intended by the legislature to intention was to make a contract in the same manner, be an exercise of its ordinary legislative function in and in the same terms, of equal obligation, as other making laws, which, like other laws, are subject to its contracts are made, and not to pass a statute which it full control by future amendments and repeals, from could repeal or amend the day after it was signed by what is intended to become a contract between the the parties. State and other parties when the terms of the statute
2. There was a well-understood subject of contract. have been accepted and acted upon by those parties.
The corporation wished authority to build a branch This has always been a very nice point, and when the road or roads, with favorable route, and power to acsupposed contract exists only in the form of a general quire right of way, and the State wished the rexed statute, doubts still recur after all our decisions on question of the right to tax the corporation to be setthat class of questions.
tled. For the company denied the right of the State These doubts are increased when the terms of the to tax them under their charter, until the road paid statute relate to a matter which is in its essential na them a net income of seven per cent per annum on its ture one of exclusive legislative cognizance, and which cost. at the same time requires money or labor to be ex The legislature said, if you will consent to pay the pended by individuals or corporations. In such cases
one-half of oue per cent tax as originally agreed, and the legislature may be supposed to be merely exercis commence to do this within one year from the time ing its powers of regulating the burdeus which are the road shall be open and in use to Phillipsburgh, to be borne for the public service, in which case it we will authorize an iucrease of ten millions of your could be modified from time to time as legislative dis capital stock and the franchises you seek as to the cretion might determine, or it might be a contract branch roads, and will agree that the tax shall be fixed founded on a fair consideration coming from the party at one-half of one per cent. Here was a subject of concerned to the State, and which in that case would disagreement adjusted, additional rights granted, and be beyond the power of the State to impair. Statutes the tax fixed, both as to its rate and the time of comfixing the taxes to be levied on corporations, partake, mencement. in a striking manner, of this dual character, and re
Can it be believed that it was intended by either quire for their coustruction a critical examination of party to this contract that after it was signed by both their terms and of the circumstances under which parties one was bound forever and the other only they are created.
for a day? That it was iutended to be a part of the The writer of this opinion has always believed, and contract that the State of New Jersey was at her opbelieves now, that one legislature of a State has no tion to be bound or not? That there was implied in power to bargain away the right of any succeeding Tit, when it was offered to the acceptance of the com
pany, the right on the part of the legislature to alter From this decision the petitioner appealed. or amend it at pleasure? If the State intended to re Inderwick, Q. C., Dr. Tristram and Bayford, for the zerve this right, what necessity for asking the com- appellant. The judge in the court below considered pany to accept in such formal manner the terms of a himself bound by Simonin v. Mallac. 2 Sw. & Tr. 67, contract which the State could at any time make to but that case is distinguishable from the present one. suit itself?
There the objection to the validity of the marriage 3. The language used by the legislature is inconsist was the absence of the consent of the parents, but ent with the right claimed.
that was a mere matter of form; while here the mar“Which tax (one-half of one per cent) shall be in riage is invalid by the law of Portugal, on the ground lieu and satisfaction of all other taxation or imposi of the consanguinity of the parties. In Conway v. tions whatsoever by or under authority of this State Beazley, 3 Hagg. 659, it was held that the lex loci conor any law thereof?” Is there here to be implied “ex tractus as to marriage will not prevail when either of cept such laws as may hereafter be enacted?” Such a the contracting parties is under a legal incapacity by provision would be to nullify the whole contract. How the law of the domicile, which clearly applies to the could the tax be in lieu and satisfaction of all other present case. Brook v. Brook, 9 H. of L. Cas. 193, is taxation, if other taxes might be imposed next day? | also in our favor. It decides that the forms of enterOr, how can it be said to be in satisfaction of all ing marriage are regulated by the lex loci contractus, taxes whatsoever, under authority of the State, if the | but that the essentials of the contract depend upon State could immediately impose another and more the lex domicilii. They also cited Warrender v. Warburdensome tax?
render, 2 Cl. & Fin. 488; Harford v. Morris, 2 Hagg. We admit the force of the doctrine that, when it ! Cons. Rep. 423; Story's Contlict of Laws, ss 110, 116 a. is asserted that a State has bargained away her right Willis, Q. C., and Jacques, for the Queen's Proctor. of taxation in a given case, the contract must be clear The lex loci contractus determines the validity of the and cannot be made out by dubious implications. marriage, both as regards the solemnities and as re
But of the existence of the present contract there gards the capacity of the contracting parties. In is no doubt. Its meaning and its terms are clear Brook v. Brook, Lord Wensleydale thus states the law enough, and, taken alone, no one denies but that it is a (at page 241 of 9 H. of L. Cas.): “It is the established contract which would be protected by the constitution principle that every marriage is to be universally reof the United States. The implication is of a right to cognized, which is valid according to the law of the revoke it and comes from the other quarter, and is one place where it was had, whatever that law may be. which we do not think exists by fair construction, and | This is the doctrine of Lord Stowell in the case of which we do not feel at liberty to import into the con Herbert v. Herbert, 2 Hagg. Cons. Rep. 271. The same tract to defeat its manifest purpose.
doctrine has been laid down in various authorities, as The judgment of the Court of Errors and Appeals by Sir Edward Simpson, in Serimshire v. Scrimshire, 2 is reversed, and the case remanded for further pro Hagg. Cons. Rep. 417, and by Story and others. If ceedings in conformity to this opinion.
valid where it was celebrated, it is valid everywhere, Mr. Justice BRADLEY took no part in the considera as to the constitution of the marriage and as to its tion of the case.
ceremonies; but as to the rights, duties and obliga
tions thence arising the law of the domicile of the LEX DOMICILII AND MARRIAGE.
parties must be looked to. That is laid down by
Story's Conflict of Laws, $ 110. But this universally ENGLISH COURT OF APPEAL-JULY 20 AND NOV. 26. approved rule is subject to a qualification." His
lordship then states the exception to the rule as SOTTOMAYOR V. DE BARROS.
laid down by Huber and Story, marriages involving The petitioner and respondent, Portuguese subjects and
polygamy and incest being the first exception, and first cousins, came with their parents to reside in Eng. reads Story's observation on the first exception: land in 1858. In 1866 they went through the civil form of marriage before the Registrar of the district of the city
“ Christianity is understood to prohibit polygamy and of London. They were both infants at the time of the incest; but this doctrine must be confined to such ceremony, and they went through the form at the earl
cases as by general consent of all Christendom are est solicitation of their parents, for the purpose of protecting some property in Portugal. The marriage was deemed incestuous.” The present case does not come never consummated. In 1873 they returned to Portugal, and continued to reside there. By the law of Portugal
within the exceptions, but is governed by the general the marriage was invalid, first cousins being within the rule; for marriages between first cousins are not reprohibited degrees of consanguinity. The wife brought a suit in the Euglish court praying for a decree of nul
garded as incestuous by the general consent of all lity, on the ground that the marriage was void by the Christendom, and even in Roman Catholie countries
law of Portugal. Held (reversing the decision of Sir R. J. Phillimore), that
they are frequently rendered valid by Papal dispensathe petitioner and respondent, as domiciled Portu tion. The petitioner asks that the lex domicilii may guese subjects, Jarried with them to England the incapacity to contract marriage with one another, in
determine the question as to the validity of the marflicted on them by the law of Portugal; that the Eng riage. They also cited 1 Burge's Colonial Law, 184; lish court was bound to recognize this incapacity; and that there must accordingly be a decree of nullity.
Ruding v. Smith, 2 Hagg. Cons. Rep. 369-90. (Simonin v. Mallac, 2 Sw. & Tr. 67, distinguished.)
Inderwick, Q. C., in reply. Cur. adv. vult. THIS was an appeal from a decision of Sir R. J. Philo COTTON, L. J., delivered the following written judgI limore.
ment of the court: This is an appeal from an order of The hearing in the court below is reported in 36 L. the Court of Divorce, dated the 17th March, 1877, disT. Rep. (N. S.) 746, where the facts of the case are fully missing a petition presented by Ignacia Sottomayor, stated.
praying the court to declare her marriage with the Sir R. J. Phillimore held that the lex loci contractus respondent, Gonzalo de Barros, to be null and void. must prevail; and that, as by the law of England the The respondent appeared to the petition, but did not marriage was good and binding, the court was bound file an answer or appear at the hearing; and, by the to uphold it.
direction of the judge, the Queen's Proctor was served with the petition, and appeared by counsel to argue ous, this, in my opinion, imposes on the subjects of the case against the petitioner. There were several that country a personal incapacity, which continues to grounds on which the petitioner originally claimed re affect them so long as they are domiciled in tbe counlief, but the only ground now to be considered is, that try where this law prevails, and renders invalid a marshe and the respondent were under a personal incapac
riage between persons, both at the time of their ity to contract marriage. The facts are these: The marriage subjects of and domiciled in the country petitioner and the respondent are Portuguese sub which imposes this restriction, wherever such marriage jects, and are and have always been domiciled in that may have been solemnized. In argument, several pascountry, where they both now reside. They are first sages in Story's Conflict of Laws were referred to in cousins, and it was proved that by the law of Portu support of the contention, that in an English court a gal first cousins are incapable of contracting marriage | marriage between persons who by our law can lawby reason of consanguinity; and that any marriage | fully intermarry ought not to be declared void, though between parties so related is by the law of Portugal declared incestuous by the law of the parties' domicile, held to be incestuous, and therefore null and void, unless the marriage is one which the general consent but though not proved, it was admitted before us that | of Christendom stamps as incestuous. It is hardly such a marriage would be valid if solemuized under possible to suppose that the law of England, or of any the authority of a Papal dispensation. In the year | Christian country, would consider as valid a marriage 1858 the petitioner, her father and mother, and her which the general consent of Christendom declared to uncle De Barros and his family, including the respond | be incestuous. Probably the true explanation of the ent, his eldest son, came to England, and the two | passages in Story is given in Brook v. Brook, 9 H. of L. families occupied a house jointly in Dorset square, Cas. 227–8, by Lord Cranworth, and by Lord WensleyLoudon. The petitioner's father came to this country dale, at pages 241-2, who express their opinion that he for the benefit of his health, and De Barros for the is referring to marriages not prohibited or declared to education of his children and to superintend the sale be incestuous by the municipal law of the country of of wine. De Barros subsequently, in 1861, became domicile. But it is said that the impediment imposed manager to a firm of wine merchauts in London, une by the law of Portugal can be removed by a Papal disder the style of Caldos, Brothers and Co., of which pensation, and, therefore, that it cannot be said that the petitioner's father was made a partner, and whien there is a personal incapacity of the petitioner and stopped payment in 1865. On the 21st June, 1866, the respondent to contract marriage. The evidence is petitioner, at that time of the age of fourteen years clear that by the law of Portugal the impediment to and a half, and the respondent, of the age of sixteen the marriage between the parties is such that in the years, were married at a registrar's office in London. absence of Papal dispensation the marriage would be No religious ceremony accompanied or followed the by the law of that country void as incestuous. The marriage; and although the parties lived together in statutes of the English Parliament contain a declarathe same house until the year 1872, they never slept tion that no Papal dispensation can sauction a martogether, and the marriage was never consummated. | riage otherwise incestuous; but the law of Portugal The petitioner stated that she went through the form does recognize the validity of such a dispensation: of marriage contrary to her own inclination, by the and it camuot, in my opinion, be held that such a dispersuasion of her uncle and mother, on the represen pensation is a matter of form affecting only the sultitation that it would be the means of preserving her ciency of the ceremony by which the marriage is effather's Portuguese property from the consequences fected, or that the law of Portugal, which prohibits of the bankruptcy of the wine business. Under these and declares incestuous, unless with such a dispeusacircumstances the appellant, in November, 1874, pre tion, a marriage between the petitioner and respondsented her petition for the object above mentioned, and ent, does not impose on them a personal incapacity Sir Robert Phillimore, before whom the case was heard, to contract marriage. It is proved that the courts of declined to declare the marriage invalid, and dismissed Portugal, where the petitioner and respondent are the petition; but did so, as I understand, rather because domiciled and resident, would hold the marriage void, he felt himself bound by the decision in the case of as solemnized between parties incapable of marryiug, Simonin v. Mallac, 2 Sw. & Tr. 67, than because he con- | and incestuous. How can the courts of this country sidered that on principle the marriage ought to be held hold the contrary, and, if appealed to, say the margood. If the parties had been subjects of Her Maj- riage is valid ? It was pressed upon us in argument esty, domiciled in Englaud, the marriage would that a decision in favor of the petitioner would lead undoubtedly have been valid. But it is a well-recog- | to many difficulties, if questions should arise as to the nized principle of law that the question of personal validity of a marriage between an English subject and capacity to enter into any contract is to be decided by a foreigner in cousequence of a prohibition imposed the law of domicile. It is, however, urged that this | by the law of the domicile of the latter. My opinion does not apply to the contract of marriage, and that a on this appeal is confined to the case when both the marriage valid according to the law of the country contracting parties are at the time of their marriage where it is solemnized is valid everywhere. This, in domiciled in a country the laws of which prohibit my opinion, is not a correct statement of the law. | their marriage. All persons are legally bound to The law of the country where a marriage is solemu take notice of the laws of the country where they ized must alone decide all questions relating to the are domiciled. No country is bound to recogvalidity of the ceremony by which the marriage is al nize the laws of a foreign State when they work leged to have been constituted; but, as in other con injustice to its own subjects, and this principle would tracts, so in that of marriage, personal capacity must prevent the judgment in the present case being relied depend on the law of domicile; and if the laws of any on as an authority for setting aside a marriage between country prohibit its subjects within certain degrees of a foreigner aud an English subject domiciled in Engconsanguinity from contracting marriage, and stamp | land, on the ground of any personal incapacity not a marriage between the prohibited degrees as incestu- ! recognized by the law of this country. The coun
sel for the appellant relied on the case of Brook would also include a loss occurring from an intentional v. Brook as a decision in favor of the appellant. or willful act on the part of servants. It is conceded If, in my opinion, that case had been a decision on the that the latter is not included. We must look at the question arising on this petition, I should have thought language in connection with the circumstances and deit to be sufficient without more to refer to that case as termine what was intended, and whether the exempdecisive. The judgment in that case, however, only | tion claimed was within the contemplation of the pardecided that the English courts must hold invalid a | ties. marriage between two English subjects domiciled in The defendant was a common carrier, and as such this country who were prohibited from intermarrying was absolutely liable for the safe carriage and delivery by an English statute, even though the marriage was of property intrusted to its care, except for loss or insolemnized during a temporary sojourn in a foreign jury occasioned by the acts of God or public enemies. country. It is, therefore, not decisive of the present The obligations are imposed by law, and not by concase; but the reasons given by the lords who delivered tract. A common carrier is subject to two distinct their opinions in that case strongly support the princi classes of liabilities - one where he is liable as an insurer ple on which this judgment is based. It only remains without fault on his part; the other, as an ordinary to consider the case of Simonin v. Mullac, 2 Sw. &. Tr. bailee for hire, when he is liable for default in not ex67. The objection to the validity of the marriage in ercising proper care and diligence, or, in other words, that case, which was solemnized in England, was the for negligence. General words, from whatever cause want of the consent of parents required by the law of arising, may well be satisfied by limiting them to such France, but not under the circumstances by that of extraordinary liabilities as carriers are under without this country. In my opinion this consent must be fault or negligence on their part. considered a part of the ceremony of marriage, and When general words may operate without including not a matter affecting the personal capacity of the the negligence of the carrier or his servants, it will not parties to contract marriage; and the decision in be presumed that it was intended to include it. Every Simonin v. Mallac does not, I think, govern the present presumption is against an intention to contract for imcase. I am of opinion that the judgment appealed munity for not exercising ordinary diligence in the from must be reversed, and a decree made declaring transaction of any business, and hence the general rule the marriage null and void.
is that contracts will not be so construed unless ex. pressed in unequivocal terms.
Iu New Jersey Steam Navigation Co. v. Merchants' LIABILITIES OF CARRIERS OF ANIMALS.
Bank, 6 How.(U. S.) 344, a contract that the carriers are
not responsible in any event for loss or damage, was held NEW YORK COURT OF APPEALS - NOV. 13, 1877.
not intended to exonerate them from liability for
want of ordinary care. Nelson, J., said: “The lanMYNARD V. SYRACUSE, BINGHAMTON AND NEw York
guage is general and broad, and might very well comRAILROAD Co.
prehend erery description of risk incident to the shipPlaintif shipped animals by railroad under a contract | ment. But we think it would be going further than
whereby he agreed to release and discharge the railroad company "from all claims, demands and liabilities of
the intent of the parties upon any fair and reasonable every kind whatsoever for or on account of or con
construction of the agreement were we to regard it as nected with any damage or injury to or loss of said stock or any portion thereof from whatsoever (ause aris.
stipulating for willful misconduct, gross negligence or ing." Held, ihat the contract did not release the com want of ordinary care, either in the seaworthiness of pany from liability for loss resulting from the negligence of its servants.
the vessel, her proper equipments and furniture, or in A carrier of animals is excused from liability for loss caused
her management by the master and hands." This rule by the inherent tendencies or qualities of the animals, but beyond this the common-law liabilities exist against
has been repeatedly followed in this State. hiin the same as agaiust the carrier of any other kind In Alexander v. Greene, 7 Hill, 533, the stipulation of property.
was to tow plaintiff's caual boat from New York to APPEAL from a judgment of the General Term of Albany at the risk of the master or owners, and the A the Supreme Court for the Third Department re Court of Errors reversed a judgment of the Supreme versing a judgment of the County Court of Cortland. Court with but a single dissenting vote, and decided Enough facts appear in the opinion. The decision at that the language did not include a loss occasioned by the General Term is reported 7 Hun, 399.
the negligence of the defendants or their servants. CHURCH, Ch. J. The parties stipulated that the In one of several opinions delivered by members of animal was lost by reason of the negligence of some the court, it was said in respect to the claim for imof the employees of the defendant without the fault munity from negligence: “To maintain a proposition of the plaintiff. The defense rested solely upon ex so extravagant as this would appear to be, the stipulaemption from liability contained in the contract of ship tion of the parties ought to be the most clear and exment by which, for the consideration of a reduced plicit, showing that they comprehended in their arrate, the plaintiff agreed to “ release and discharge the | rangement the case that actually occurred.” said company from all claims, demands and liabilities Wells v. Steam Navigation Co., 8 N. Y. 375, expressly of every kind whatsoever for or on account of, or con- | approved of the decision of Alexander v. Greene, and nected with any damage or injury to or the loss of said | reiterated the same principle. Gardiner, J., in speakstock, or any portion thereof, from whatsoever cause ing of that case, said: “We held then if a party vested arising."
with a temporary control of another's property for a The question depends upon the construction to be special purpose of this sort, would shield himself from given to this contract whether the exemption "from responsibility on account of the gross neglect of him. whatever cause arising," should be taken to include a self or his servants, he must show his immunity on loss accruing by the negligence of the defendant or its the face of his agreement; and that a stipulation so exservants. The language is general and broad. Taken traordinary, so contrary to usage and the general unliterally it would include the loss in question, and it I derstanding of men of business, would not be implied from a general expression to which effect might other- of an act of Parliament on the subject, under which wise be given."
the courts have since acted. See 10 H. L. Cas. 473. So in Steinweg v. Erie Ry.Co., 43 N. Y. 123, the contract It is argued that the rule does not apply to the carreleased the carrier “from damage or loss to any arti riage of animals, that in respect to such property the cle from or by fire or explosion of any kind," and this common-law liabilities of common carriers do not atcourt held that the release did not include a loss by tach, that the carrier is only liable for negligence, and fire occasioned by the negligence of the defendant, and hence, that the stipulation can apply to nothing else. in Magnin v. Dinsmore, 56 N.Y. 168, still more recently There might be some force in this point if the posidecided by this court, the contract with the express | tion, that carriers of animals are only liable for neglicompany contained the stipulation, “and if the value of gence or misconduct, is correct. But that position the property above described is not stated by the ship cannot be maintained. The liability of carriers of aui. per, the holder thereof will not demand of the Adams' mals is modified only so far as the cause of damage, Express Company a sum exceeding fifty dollars for for which recompense is sought, is in consequence of the loss or detention of, or damage to, the property the conduct or propensities of the animals undertaken aforesaid.” It was held, reversing the judgment be- to be carried. In other respects the common-law relow, that the stipulation did not cover a loss occurring sponsibilities of the carrier will attach. This was er. through negligence, Johnson, J., in the opinion, say- pressly held in Clark v. Railroad Co., 14 N. Y. 573. ing: “But the contract will not be deemed to except | Denio, J., said: “ But the rule which would exempt losses occasioned by the carrier's negligence unless | the carrier altogether from accidents arising out of the that be expressly stipulated.” In each of these cases peculiar character of the freight, irrespective of the the language of the contract was sufficiently broad to question of negligence, would be equally uureasonainclude losses occasioned by ordinary or gross negli ble. It would relieve the carrier altogether from those gence, but the doctrine is repeated that if the carrier necessary precautions which any person becoming the asks for immunity for his wrongful acts it must be l bailee, for hire, of animals is bound to exercise, and expressed, and that general words will not be deemed the owner, where he did not himself assume the duty to have been intended to relieve him from the conse of seeing to them, would be wholly at the mercy of quences of such acts.
the carrier. The nature of the case does not call for These authorities are directly in point, and they ac | any such relaxation of the rule, and, considering the cord with a wise public policy, by which courts should law of carriers to be established upon considerations be guided in the construction of contracts designed of sound policy, we would not depart from it, except to relieve common carriers from obligations to exer- where the reason upon which it is based wholly fails, cise care and diligence in the prosecution of their busi- and then uo further than the cause for the exemption ness which the law imposes upon ordinary bailees for | requires." hire engaged in private business. In the recent case The case of Palmer v. Railway Co., 4 Mees. & Wels. of Lockwood v. Railroad Co., 17 Wall. 357, the Supreme | 749, is cited, where the same principle is decided. AniCourt of the United States decided that a common mals may die of fright, by refusing to eat, or break from carrier cannot lawfully stipulate for exemption from their fastenings and kill themselves, although every responsibility for the negligence of himself or his sery proper precaution was used, but there mar be many ants. If we felt at liberty to review the question, accidents producing loss or injury to animals which the reasoning of Justice Bradley in that case would are not attributable to acts of God, and which were be entitled to serious consideration, but the right thus not caused by the peculiar character of the property. to stipulate has been so repeatedly affirmed by this By the act of God is meant something which operates court that the question cannot with propriety be re- without any aid or interference from man. Merritt v. garded as an open one in this State. 8 N. Y. 375; 11 Earle, 29 N. Y. 115. In that case it was held that the id. 485; 24 id. 181-196; 25 id. 442; 42 id. 212; 49 id. 263 ; carrier was liable for the value of a span of horses lost 51 id. 61. The remedy is with the legislature, if rem by the sinking of a steamboat, caused by coming in edy is needed. But upon the question involved here contact with the mast of a sloop which had been sunk it is correctly stated in that case that " a review of the in a squall two days before. The court decided that cases decided by the courts of New York shows that siuking the steamboat was not caused by the act of though they have carried the power of the common God, and that the sinking of the sloop, although by carrier to make special contracts to the extent of ena the act of God, was too remote, and many accidents bling him to exonerate himself from the effects of even might happen producing loss to animals for which the gross negligence, yet that this effect has never been given carrier would be liable, although no fault or negligence to a contract general in its terms." Such has been could be imputed, and in respect to such the commonthe uniform course of decisions in this and most of law liability would attach. Augell on Carriers, 190, the other States, and public policy demands that it | lays down the same rule. The same qualification of should not be relaxed. It cannot be said that parties liability applies to all property. in making such contracts stand on equal terms. The The carrier is excused from liability for loss caused shipper, in most cases, from motives of convenience, by inherent infirmity or tendency to decay. necessity, or apprehended injury, feels obliged to ac | It has been held that a carrier is not responsible for cept the terms proposed by the carrier, and practi the evaporation of liquids, nor for the dimiuution of cally the coutract is made by one party only, and | molasses, caused by the oozing through reut holes should, therefore, be construed most strongly against necessary to prevent the bursting of the barrels him, and especially should he not be relieved from the (Augell on Carriers, $ 211, and cases cited); and exconsequences of his own wrongful acts under general emptions from liability for loss by inherent qualities words or by implication.
of animals rests upon the same principle. Beyond There was a period when the courts of England were this the common-law liabilities exist against the carinclined to relax this rule, and this led to the adoption rier of animals the same as the carrier of other prop