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But, as we have already said, since the legislature which passed the act of 1865 had the power to make a contract which should not be subject to repeal or modification by one of the parties to it without the consent of the other, the main question here is, did they intend to make such a contract?

The principal function of a legislative body is not to make contracts, but to make laws. These laws are put into a form which, in all countries using the English language and inheriting the English common law, is called a statute.

Unless forbidden by some exceptional constitutional provision, the same authority which can make a law can repeal it. The constitution of the United States has imposed such a limitation upon the legislative power of all the States by declaring that no State shall pass any law impairing the obligation of a contract. The frequency with which this court has been called on to declare State laws void, because they do impair the obligation of contracts, shows how very important and far-reaching that provision is.

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It may safely be said that in far the larger number of cases brought to this court under that clause of the constitution the question has been as to the existence and nature of the contract, and not the construction of the law which is supposed to impair it; and the greatest trouble we have had on this point has been in regard to what may be called legislative contracts contracts found in statute laws of the State if they existed at all. It has become the established law of this court that a legislative enactment, in the ordinary form of a statute, may contain provisions which, when accepted as the basis of action by individuals or corporations, become contracts between them and the State within the protection of the clause referred to of the Federal constitution.

The difficulty in this class of cases has always been to distinguish what is intended by the legislature to be an exercise of its ordinary legislative function in making laws, which, like other laws, are subject to its full control by future amendments and repeals, from what is intended to become a contract between the State and other parties when the terms of the statute have been accepted and acted upon by those parties. This has always been a very nice point, and when the supposed contract exists only in the form of a general statute, doubts still recur after all our decisions on that class of questions.

These doubts are increased when the terms of the statute relate to a matter which is in its essential nature one of exclusive legislative cognizance, and which at the same time requires money or labor to be expended by individuals or corporations. In such cases the legislature may be supposed to be merely exercising its powers of regulating the burdens which are to be borne for the public service, in which case it could be modified from time to time as legislative discretion might determine, or it might be a contract founded on a fair consideration coming from the party concerned to the State, and which in that case would be beyond the power of the State to impair. Statutes fixing the taxes to be levied on corporations, partake, in a striking manner, of this dual character, and require for their construction a critical examination of their terms and of the circumstances under which they are created.

The writer of this opinion has always believed, and believes now, that one legislature of a State has no power to bargain away the right of any succeeding

legislature to levy taxes in as full a manner as the constitution will permit. But so long as the majority of this court adhere to the contrary doctrine, he must, when the question arises, join with the other judges in considering whether such a contract has been made.

In the case now under consideration, it is conceded on all hands that the act of 1865 was a contract for a tax of one-half of one per centum per annum on the cost of the Morris and Essex Railroad, and no more. But counsel for defendant says the contract was repealable; that the legislature of its own volition could impose other and more burdensome taxes at its discretion; that it was a contract so long as the legislature of New Jersey was satisfied with it, and no longer. It is conceded, also, that this construction of it cannot be sustained, unless we are bound to import into it, either the reservation clause of the act of 1836, or what is called the interpretation act of 1846. We have already shown how little reason there is for doing this on general principles of construction. We think it still clearer that it cannot be done, because it is inconsistent with the legislative intent in passing the act of 1865.

1. The legislature was not willing to rest this contract in the usual statutory form alone, depending for its validity as a contract upon some action of the corporation under it to bind it to its terms, but they required of the company a formal written acceptance within sixty days, or else it became wholly inoperative. The company duly executed this acceptance. There was, then, the complete formal written instrument evidencing this contract, signed by the presiding officers of the two houses of the New Jersey legislature, and the governor, for one party, and the president and secretary and seal of the railroad company, of the other party. It does seem as if the legislative intention was to make a contract in the same manner, and in the same terms, of equal obligation, as other contracts are made, and not to pass a statute which it could repeal or amend the day after it was signed by the parties.

2. There was a well-understood subject of contract. The corporation wished authority to build a branch road or roads, with favorable route, and power to acquire right of way, and the State wished the vexed question of the right to tax the corporation to be settled. For the company denied the right of the State to tax them under their charter, until the road paid them a net income of seven per cent per annum on its cost.

The legislature said, if you will consent to pay the one-half of one per cent tax as originally agreed, and commence to do this within one year from the time the road shall be open and in use to Phillipsburgh, we will authorize an increase of ten millions of your capital stock and the franchises you seek as to the branch roads, and will agree that the tax shall be fixed at one-half of one per cent. Here was a subject of disagreement adjusted, additional rights granted, and the tax fixed, both as to its rate and the time of commencement.

Can it be believed that it was intended by either party to this contract that after it was signed by both parties one was bound forever and the other only for a day? That it was intended to be a part of the contract that the State of New Jersey was at her option to be bound or not? That there was implied in it, when it was offered to the acceptance of the com

pany, the right on the part of the legislature to alter or amend it at pleasure? If the State intended to reserve this right, what necessity for asking the company to accept in such formal manner the terms of a contract which the State could at any time make to suit itself?

3. The language used by the legislature is inconsistent with the right claimed.

"Which tax (one-half of one per cent) shall be in lieu and satisfaction of all other taxation or impositions whatsoever by or under authority of this State or any law thereof?" Is there here to be implied "except such laws as may hereafter be enacted?" Such a provision would be to nullify the whole contract. How could the tax be in lieu and satisfaction of all other taxation, if other taxes might be imposed next day? Or, how can it be said to be in satisfaction of all taxes whatsoever, under authority of the State, if the State could immediately impose another and more burdensome tax?

We admit the force of the doctrine that, when it is asserted that a State has bargained away her right of taxation in a given case, the contract must be clear and cannot be made out by dubious implications.

But of the existence of the present contract there is no doubt. Its meaning and its terms are clear enough, and, taken alone, no one denies but that it is a contract which would be protected by the constitution of the United States. The implication is of a right to revoke it and comes from the other quarter, and is one which we do not think exists by fair construction, and which we do not feel at liberty to import into the contract to defeat its manifest purpose.

The judgment of the Court of Errors and Appeals is reversed, and the case remanded for further proceedings in conformity to this opinion.

Mr. Justice BRADLEY took no part in the consideration of the case.

LEX DOMICILII AND MARRIAGE.

ENGLISH COURT OF APPEAL-JULY 20 AND NOV. 26.

SOTTOMAYOR V. DE BARROS.

The petitioner and respondent, Portuguese subjects and first cousins, came with their parents to reside in England in 1858. In 1866 they went through the civil form of marriage before the Registrar of the district of the city of London. They were both infants at the time of the ceremony, and they went through the form at the earnest solicitation of their parents, for the purpose of protecting some property in Portugal. The marriage was never consummated. In 1873 they returned to Portugal, and continued to reside there. By the law of Portugal the marriage was invalid, first cousins being within the prohibited degrees of consanguinity. The wife brought à suit in the English court praying for a decree of nullity, on the ground that the marriage was void by the law of Portugal.

Held (reversing the decision of Sir R. J. Phillimore), that the petitioner and respondent, as domiciled Portuguese subjects, carried with them to England the incapacity to contract marriage with one another, inflicted on them by the law of Portugal; that the English court was bound to recognize this incapacity; and that there must accordingly be a decree of nullity. (Simonin v. Mallac, 2 Sw. & Tr. 67, distinguished.)

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From this decision the petitioner appealed. Inderwick, Q. C., Dr. Tristram and Bayford, for the appellant. The judge in the court below considered himself bound by Simonin v. Mallac, 2 Sw. & Tr. 67, but that case is distinguishable from the present one. There the objection to the validity of the marriage was the absence of the consent of the parents, but that was a mere matter of form; while here the marriage is invalid by the law of Portugal, on the ground of the consanguinity of the parties. In Conway v. Beazley, 3 Hagg. 639, it was held that the lex loci contractus as to marriage will not prevail when either of the contracting parties is under a legal incapacity by the law of the domicile, which clearly applies to the present case. Brook v. Brook, 9 H. of L. Cas. 193, is also in our favor. It decides that the forms of entering marriage are regulated by the lex loci contractus, but that the essentials of the contract depend upon the lex domicilii. They also cited Warrender v. Warrender, 2 Cl. & Fin. 488; Harford v. Morris, 2 Hagg. Cons. Rep. 423; Story's Conflict of Laws, §§ 110, 116 a.

Willis, Q. C., and Jacques, for the Queen's Proctor. The lex loci contractus determines the validity of the marriage, both as regards the solemnities and as regards the capacity of the contracting parties. In Brook v. Brook, Lord Wensleydale thus states the law (at page 241 of 9 H. of L. Cas.): "It is the established principle that every marriage is to be universally recognized, which is valid according to the law of the place where it was had, whatever that law may be. This is the doctrine of Lord Stowell in the case of Herbert v. Herbert, 2 Hagg. Cons. Rep. 271. The same doctrine has been laid down in various authorities, as by Sir Edward Simpson, in Serimshire v. Scrimshire, 2 Hagg. Cons. Rep. 417, and by Story and others. If valid where it was celebrated, it is valid everywhere, as to the constitution of the marriage and as to its ceremonies; but as to the rights, duties and obligations thence arising the law of the domicile of the parties must be looked to. That is laid down by Story's Conflict of Laws, § 110. But this universally approved rule is subject to a qualification." His lordship then states the exception to the rule as laid down by Huber and Story, marriages involving polygamy and incest being the first exception, and reads Story's observation on the first exception: Christianity is understood to prohibit polygamy and incest; but this doctrine must be confined to such cases as by general consent of all Christendom are deemed incestuous." The present case does not come within the exceptions, but is governed by the general rule; for marriages between first cousins are not regarded as incestuous by the general consent of all Christendom, and even in Roman Catholie countries they are frequently rendered valid by Papal dispensation. The petitioner asks that the lex domicilii may determine the question as to the validity of the marriage. They also cited 1 Burge's Colonial Law, 184; Ruding v. Smith, 2 Hagg. Cons. Rep. 369–90.

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Inderwick, Q. C., in reply. Cur. adv. vult.

COTTON, L. J., delivered the following written judgment of the court: This is an appeal from an order of the Court of Divorce, dated the 17th March, 1877, dismissing a petition presented by Ignacia Sottomayor, praying the court to declare her marriage with the respondent, Gonzalo de Barros, to be null and void. The respondent appeared to the petition, but did not file an answer or appear at the hearing; and, by the direction of the judge, the Queen's Proctor was served

with the petition, and appeared by counsel to argue the case against the petitioner. There were several grounds on which the petitioner originally claimed relief, but the only ground now to be considered is, that she and the respondent were under a personal incapacity to contract marriage. The facts are these: The petitioner and the respondent are Portuguese subjects, and are and have always been domiciled in that country, where they both now reside. They are first cousins, and it was proved that by the law of Portugal first cousins are incapable of contracting marriage by reason of consanguinity; and that any marriage between parties so related is by the law of Portugal held to be incestuous, and therefore null and void, but though not proved, it was admitted before us that such a marriage would be valid if solemnized under the authority of a Papal dispensation. In the year 1858 the petitioner, her father and mother, and her uncle De Barros and his family, including the respondent, his eldest son, came to England, and the two families occupied a house jointly in Dorset square, London. The petitioner's father came to this country for the benefit of his health, and De Barros for the education of his children and to superintend the sale of wine. De Barros subsequently, in 1861, became manager to a firm of wine merchants in London, under the style of Caldos, Brothers and Co., of which the petitioner's father was made a partner, and which stopped payment in 1865. On the 21st June, 1866, the petitioner, at that time of the age of fourteen years and a half, and the respondent, of the age of sixteen years, were married at a registrar's office in London. No religious ceremony accompanied or followed the marriage; and although the parties lived together in the same house until the year 1872, they never slept together, and the marriage was never consummated. The petitioner stated that she went through the form of marriage contrary to her own inclination, by the persuasion of her uncle and mother, on the representation that it would be the means of preserving her father's Portuguese property from the consequences of the bankruptcy of the wine business. Under these circumstances the appellant, in November, 1874, presented her petition for the object above mentioned, and Sir Robert Phillimore, before whom the case was heard, declined to declare the marriage invalid, and dismissed the petition; but did so, as I understand, rather because he felt himself bound by the decision in the case of Simonin v. Mallac, 2 Sw. & Tr. 67, than because he considered that on principle the marriage ought to be held good. If the parties had been subjects of Her Majesty, domiciled in England, the marriage would undoubtedly have been valid. But it is a well-recognized principle of law that the question of personal capacity to enter into any contract is to be decided by the law of domicile. It is, however, urged that this does not apply to the contract of marriage, and that a marriage valid according to the law of the country where it is solemnized is valid everywhere. This, in my opinion, is not a correct statement of the law. The law of the country where a marriage is solemnized must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted; but, as in other contracts, so in that of marriage, personal capacity must depend on the law of domicile; and if the laws of any country prohibit its subjects within certain degrees of consanguinity from contracting marriage, and stamp a marriage between the prohibited degrees as incestu

ous, this, in my opinion, imposes on the subjects of that country a personal incapacity, which continues to affect them so long as they are domiciled in the country where this law prevails, and renders invalid a marriage between persons, both at the time of their marriage subjects of and domiciled in the country which imposes this restriction, wherever such marriage may have been solemnized. In argument, several passages in Story's Conflict of Laws were referred to in support of the contention, that in an English court a marriage between persons who by our law can lawfully intermarry ought not to be declared void, though declared incestuous by the law of the parties' domicile, unless the marriage is one which the general consent of Christendom stamps as incestuous. It is hardly possible to suppose that the law of England, or of any Christian country, would consider as valid a marriage which the general consent of Christendom declared to be incestuous. Probably the true explanation of the passages in Story is given in Brook v. Brook, 9 H. of L. Cas. 227-8, by Lord Cranworth, and by Lord Wensleydale, at pages 241-2, who express their opinion that he is referring to marriages not prohibited or declared to be incestuous by the municipal law of the country of domicile. But it is said that the impediment imposed by the law of Portugal can be removed by a Papal dispensation, and, therefore, that it cannot be said that there is a personal incapacity of the petitioner and respondent to contract marriage. The evidence is clear that by the law of Portugal the impediment to the marriage between the parties is such that in the absence of Papal dispensation the marriage would be by the law of that country void as incestuous. The statutes of the English Parliament contain a declaration that no Papal dispensation can sanction a marriage otherwise incestuous; but the law of Portugal does recognize the validity of such a dispensation; and it cannot, in my opinion, be held that such a dispensation is a matter of form affecting only the sufficiency of the ceremony by which the marriage is effected, or that the law of Portugal, which prohibits and declares incestuous, unless with such a dispensation, a marriage between the petitioner and respondent, does not impose on them a personal incapacity to contract marriage. It is proved that the courts of Portugal, where the petitioner and respondent are domiciled and resident, would hold the marriage void, as solemnized between parties incapable of marrying, and incestuous. How can the courts of this country hold the contrary, and, if appealed to, say the marriage is valid? It was pressed upon us in argument that a decision in favor of the petitioner would lead to many difficulties, if questions should arise as to the validity of a marriage between an English subject and a foreigner in consequence of a prohibition imposed by the law of the domicile of the latter. My opinion on this appeal is confined to the case when both the contracting parties are at the time of their marriage domiciled in a country the laws of which prohibit their marriage. All persons are legally bound to take notice of the laws of the country where they are domiciled. No country is bound to recognize the laws of a foreign State when they work injustice to its own subjects, and this principle would prevent the judgment in the present case being relied on as an authority for setting aside a marriage between a foreigner and an English subject domiciled in England, on the ground of any personal incapacity not recognized by the law of this country. The coun

sel for the appellant relied on the case of Brook v. Brook as a decision in favor of the appellant. If, in my opinion, that case had been a decision on the question arising on this petition, I should have thought it to be sufficient without more to refer to that case as decisive. The judgment in that case, however, only decided that the English courts must hold invalid a marriage between two English subjects domiciled in this country who were prohibited from intermarrying by an English statute, even though the marriage was solemnized during a temporary sojourn in a foreign country. It is, therefore, not decisive of the present case; but the reasons given by the lords who delivered their opinions in that case strongly support the principle on which this judgment is based. It only remains to consider the case of Simonin v. Mallac, 2 Sw. &. Tr. 67. The objection to the validity of the marriage in that case, which was solemnized in England, was the want of the consent of parents required by the law of France, but not under the circumstances by that of this country. In my opinion this consent must be considered a part of the ceremony of marriage, and not a matter affecting the personal capacity of the parties to contract marriage; and the decision in Simonin v. Mallac does not, I think, govern the present case. I am of opinion that the judgment appealed from must be reversed, and a decree made declaring the marriage null and void.

LIABILITIES OF CARRIERS OF ANIMALS.

NEW YORK COURT OF APPEALS-NOV. 13, 1877.

MYNARD V. SYRACUSE, BINGHAMTON AND NEW YORK RAILROAD Co.

Plaintiff shipped animals by railroad under a contract whereby he agreed to release and discharge the railroad company" from all claims, demands and liabilities of every kind whatsoever for or on account of or connected with any damage or injury to or loss of said stock or any portion thereof from whatsoever cause arising." Held, that the contract did not release the company from liability for loss resulting from the negligence of its servants.

A carrier of animals is excused from liability for loss caused by the inherent tendencies or qualities of the animals, but beyond this the common-law liabilities exist against him the same as against the carrier of any other kind of property.

APPEAL from a judgment of the General Term of

the Supreme Court for the Third Department reversing a judgment of the County Court of Cortland. Enough facts appear in the opinion. The decision at the General Term is reported 7 Hun, 399.

CHURCH, Ch. J. The parties stipulated that the animal was lost by reason of the negligence of some of the employees of the defendant without the fault of the plaintiff. The defense rested solely upon exemption from liability contained in the contract of shipment by which, for the consideration of a reduced rate, the plaintiff agreed to "release and discharge the said company from all claims, demands and liabilities of every kind whatsoever for or on account of, or connected with any damage or injury to or the loss of said stock, or any portion thereof, from whatsoever cause arising."

The question depends upon the construction to be given to this contract whether the exemption "from whatever cause arising," should be taken to include a loss accruing by the negligence of the defendant or its servants. The language is general and broad. Taken literally it would include the loss in question, and it

would also include a loss occurring from an intentional or willful act on the part of servants. It is conceded that the latter is not included. We must look at the language in connection with the circumstances and determine what was intended, and whether the exemption claimed was within the contemplation of the parties.

The defendant was a common carrier, and as such was absolutely liable for the safe carriage and delivery of property intrusted to its care, except for loss or injury occasioned by the acts of God or public enemies. The obligations are imposed by law, and not by contract. A common carrier is subject to two distinct classes of liabilities - one where he is liable as an insurer without fault on his part; the other, as an ordinary bailee for hire, when he is liable for default in not exercising proper care and diligence, or, in other words, for negligence. General words, from whatever cause arising, may well be satisfied by limiting them to such extraordinary liabilities as carriers are under without fault or negligence on their part.

When general words may operate without including the negligence of the carrier or his servants, it will not be presumed that it was intended to include it. Every presumption is against an intention to contract for immunity for not exercising ordinary diligence in the transaction of any business, and hence the general rule is that contracts will not be so construed unless expressed in unequivocal terms.

In New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. (U. S.) 344, a contract that the carriers are not responsible in any event for loss or damage, was held not intended to exonerate them from liability for want of ordinary care. Nelson, J., said: "The language is general and broad, and might very well comprehend every description of risk incident to the shipment. But we think it would be going further than the intent of the parties upon any fair and reasonable construction of the agreement were we to regard it as stipulating for willful misconduct, gross negligence or want of ordinary care, either in the seaworthiness of the vessel, her proper equipments and furniture, or in her management by the master and hands." This rule has been repeatedly followed in this State.

In Alexander v. Greene, 7 Hill, 533, the stipulation was to tow plaintiff's canal boat from New York to Albany at the risk of the master or owners, and the Court of Errors reversed a judgment of the Supreme Court with but a single dissenting vote, and decided that the language did not include a loss occasioned by the negligence of the defendants or their servants. In one of several opinions delivered by members of the court, it was said in respect to the claim for ammunity from negligence: "To maintain a proposition so extravagant as this would appear to be, the stipulation of the parties ought to be the most clear and explicit, showing that they comprehended in their arrangement the case that actually occurred."

Wells v. Steam Navigation Co., 8 N. Y. 375, expressly approved of the decision of Alexander v. Greene, and reiterated the same principle. Gardiner, J., in speaking of that case, said: "We held then if a party vested with a temporary control of another's property for a special purpose of this sort, would shield himself from responsibility on account of the gross neglect of himself or his servants, he must show his immunity on the face of his agreement; and that a stipulation so extraordinary, so contrary to usage and the general understanding of men of business, would not be implied

from a general expression to which effect might otherwise be given."

So in Steinweg v. Erie Ry. Co., 43 N. Y. 123, the contract released the carrier "from damage or loss to any article from or by fire or explosion of any kind," and this court held that the release did not include a loss by fire occasioned by the negligence of the defendant, and in Magnin v. Dinsmore, 56 N.Y. 168, still more recently decided by this court, the contract with the express company contained the stipulation, "and if the value of the property above described is not stated by the shipper, the holder thereof will not demand of the Adams' Express Company a sum exceeding fifty dollars for the loss or detention of, or damage to, the property aforesaid." It was held, reversing the judgment below, that the stipulation did not cover a loss occurring through negligence, Johnson, J., in the opinion, saying: "But the contract will not be deemed to except losses occasioned by the carrier's negligence unless that be expressly stipulated." In each of these cases the language of the contract was sufficiently broad to include losses occasioned by ordinary or gross negligence, but the doctrine is repeated that if the carrier asks for immunity for his wrongful acts it must be expressed, and that general words will not be deemed to have been intended to relieve him from the consequences of such acts.

These authorities are directly in point, and they accord with a wise public policy, by which courts should be guided in the construction of contracts designed to relieve common carriers from obligations to exercise care and diligence in the prosecution of their business which the law imposes upon ordinary bailees for hire engaged in private business. In the recent case of Lockwood v. Railroad Co., 17 Wall. 357, the Supreme Court of the United States decided that a common carrier cannot lawfully stipulate for exemption from responsibility for the negligence of himself or his servants. If we felt at liberty to review the question, the reasoning of Justice Bradley in that case would be entitled to serious consideration, but the right thus to stipulate has been so repeatedly affirmed by this court that the question cannot with propriety be regarded as an open one in this State. 8 N. Y. 375; 11 id. 485; 24 id. 181-196; 25 id. 442; 42 id. 212; 49 id. 263; 51 id. 61. The remedy is with the legislature, if remedy is needed. But upon the question involved here it is correctly stated in that case that "a review of the cases decided by the courts of New York shows that though they have carried the power of the common carrier to make special contracts to the extent of enabling him to exonerate himself from the effects of even gross negligence, yet that this effect has never been given to a contract general in its terms." Such has been the uniform course of decisions in this and most of the other States, and public policy demands that it should not be relaxed. It cannot be said that parties in making such contracts stand on equal terms. The shipper, in most cases, from motives of convenience, necessity, or apprehended injury, feels obliged to accept the terms proposed by the carrier, and practically the contract is made by one party only, and should, therefore, be construed most strongly against him, and especially should he not be relieved from the consequences of his own wrongful acts under general words or by implication.

There was a period when the courts of England were inclined to relax this rule, and this led to the adoption

of an act of Parliament on the subject, under which the courts have since acted. See 10 H. L. Cas. 473.

It is argued that the rule does not apply to the carriage of animals, that in respect to such property the common-law liabilities of common carriers do not attach, that the carrier is only liable for negligence, and hence, that the stipulation can apply to nothing else.

There might be some force in this point if the position, that carriers of animals are only liable for negligence or misconduct, is correct. But that position cannot be maintained. The liability of carriers of animals is modified only so far as the cause of damage, for which recompense is sought, is in consequence of the conduct or propensities of the animals undertaken to be carried. In other respects the common-law responsibilities of the carrier will attach. This was expressly held in Clark v. Railroad Co., 14 N. Y. 573. Denio, J., said: "But the rule which would exempt the carrier altogether from accidents arising out of the peculiar character of the freight, irrespective of the question of negligence, would be equally unreasonable. It would relieve the carrier altogether from those necessary precautions which any person becoming the bailee, for hire, of animals is bound to exercise, and the owner, where he did not himself assume the duty of seeing to them, would be wholly at the mercy of the carrier. The nature of the case does not call for any such relaxation of the rule, and, considering the law of carriers to be established upon considerations of sound policy, we would not depart from it, except where the reason upon which it is based wholly fails, and then no further than the cause for the exemption requires."

The case of Palmer v. Railway Co., 4 Mees. & Wels. 749, is cited, where the same principle is decided. Animals may die of fright, by refusing to eat, or break from their fastenings and kill themselves, although every proper precaution was used, but there may be many accidents producing loss or injury to animals which are not attributable to acts of God, and which were not caused by the peculiar character of the property. By the act of God is meant something which operates without any aid or interference from man. Merritt v. Earle, 29 N. Y. 115. In that case it was held that the carrier was liable for the value of a span of horses lost by the sinking of a steamboat, caused by coming in contact with the mast of a sloop which had been sunk in a squall two days before. The court decided that sinking the steamboat was not caused by the act of God, and that the sinking of the sloop, although by the act of God, was too remote, and many accidents might happen producing loss to animals for which the carrier would be liable, although no fault or negligence could be imputed, and in respect to such the commonlaw liability would attach. Angell on Carriers, 190, lays down the same rule. The same qualification of liability applies to all property.

The carrier is excused from liability for loss caused by inherent infirmity or tendency to decay.

It has been held that a carrier is not responsible for the evaporation of liquids, nor for the diminution of molasses, caused by the oozing through vent holes necessary to prevent the bursting of the barrels (Angell on Carriers, § 211, and cases cited); and exemptions from liability for loss by inherent qualities of animals rests upon the same principle. Beyond this the common-law liabilities exist against the carrier of animals the same as the carrier of other prop

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