bailments, made by Holt, C. J., in Coggs v. Bernard, 2 Ld. Raym. 918. Mr. Fish is a private person contracting to carry for hire. The next question is, what are his liabilities? And this brings us to the main point of error charged upon the court below, and that is, that it erred in ruling that according to his contract the plaintiff in error was liable as a common carrier. In all cases of carrying for hire by a private person, we state that he is bound to ordinary diligence and a reasonable exercise of skill, and is not responsible for any losses not occasioned by ordinary negligence, unless he has expressly, by the terms of his contract, taken upon himself such risk: Story on Bail., sec. 457; Coggs v. Bernard, 2 Ld. Raym. 909, 917, 918; Hodgson v. Fullarton, 4 Taunt. 787; Hatchwell v. Cooke, 6 Id. 577; 2 Marsh. Ins. 293; Jones on Bail. 103, 106, 121; 1 Bell's Com. 461, 463, 467; Robinson v. Dunmore, 2 Bos. & Pul. 416; Brind v. Dale, 8 Car. & P. 207; 2 Kent. 597.

In this case there is a special contract defining the party's liability, and he does not, therefore, come under the rule last stated; he is liable according to his contract. There are two things to be carefully noted in it, to wit: 1. The undertaking of the bailee (having, as the receipt expresses it, received the goods in "good order and condition "), to deliver them "in like good order and condition;" 2. The qualification of the liability of the bailee, which is expressed in these words, to wit, "unavoidable accidents only excepted." As we understand it, the contract means that the plaintiff in error will deliver the goods in good order and condition, unless prevented by unavoidable accident. If the exception were out of the contract, what then would be the liability of Mr. Fish? Upon the authority of the case of Robinson v. Dunmore, 2 Bos. & Pul. 417, I should be inclined to hold that the undertaking to deliver the goods in good order and condition, is equivalent to a warranty to carry them safely, or to deliver them safely. If it is, Mr. Fish, according to that case, would be liable as a common carrier: See Story on Bail., sec. 457; Robinson v. Dunmore, 2 Bos. & Pul. 417, supra.

But we do not rest our decision upon this view of the contract; we look at that with the exception in it. What, then, is make him liable

the effect of the exception? We think it is to at all events, and for everything except for unavoidable accidents. It remains, then, to inquire into and the legal meaning and effect of these words. be material to say, that the word unavoidable is not the word

determine what is

And, first, it may

usually used in the books in this connection, but inevitable. And, further, to say, that these words are in legal as well as common parlance, synonymous. Unavoidable accidents are, in our opinion, the acts of God. The latter words express the same acts, and no more than the former; the two phrases mean the same thing: See Story on Bail., secs. 25, 511; 2 Kent. 597.

What, then, are acts of God or unavoidable accidents? For it is from these only that this party is protected. By the act of God is meant, any accident produced by physical causes which are irresistible; such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death, or illness: Story on Bail., sec. 25; 2 Kent, 597. The act of God excludes all idea of human agency: Mc Arthur and Hurlbut v. Sears, 21 Wend. 190. In this case it is said, "no matter what degree of prudence may be exercised by the carrier or his servants, although the delusion by which it is baffled, or the force by which it is overcome be inevitable, yet, if it be the result of human means, the carrier is responsible:" See also Backhouse v. Sneed, 1 Murphy, 173; 2 Bailey, 157; Id. 421. As the exception in this contract extends only to unavoidable accident, or acts of God, and does not embrace the king's enemies, the bailee could not be protected from liability of losses occasioned by them. Even if the goods had been destroyed by the public enemy, he would have, in that event, been liable. The liability of common carriers goes even yet further; for if goods committed to them are lost by their neglect, through the agency of natural causes which are in themselves irresistible, they are liable; so rigid and severe are the obligations and duties of this common but not very well understood calling. Our opinion is, then, that the exception of unavoidable accidents excludes all other exceptions in this case, "expressio unius est exclusio alterius."

And that Mr. Fish was liable at all events and on every account, but for losses occasioned by unavoidable accidents; that unavoidable or inevitable accidents are the same with the acts of God; and as common carriers are liable for losses on every account but for the acts of God and the king's enemies, so, therefore, is his liability the same as that of a common carrier, except in so far as it is greater in this, that he is not, by his contract, protected as the common carrier is at common law, against losses caused by the public enemy. The upsetting of the wagon on a decayed bridge across a stream, which was the accident which occasioned the loss in this case, is not, in our judgment, an unavoidable accident. We therefore find no error

in the court, in holding that Mr. Fish was on his contract liable as a common carrier. With these views of this contract, we do not conceive that it is at all important to say a word upon the question of negligence.

I have said that a common carrier can not vary his liability, as it existed at common law in 1776, by notice or special acceptance. On account of the importance of this subject, I propose to give it a more minute exposition. This is an age of railroads, steamboat companies, stage companies, locomotion, and transportation. It is an era of stir-men and goods run to and fro-and common carriers are multiplied. The convenience of the people and safety of property depend more now, I apprehend, upon the rules which regulate the liability of these public ministers, than at any other period of the world's history. Steam, as a transporting power, has supplanted almost all other agencies, and it is used for the most part by public companies or associations. It is very important that their liability should not only be accurately defined, but publicly declared. Anterior to 1776, the common carrier was an insurer for the delivery of goods intrusted to him, and liable for losses occasioned by all causes except the act of God and the king's enemies, and without the power to limit his responsibility. That this was the law, is proven by the numerous authorities which I have before referred to. No adjudication before that time had relaxed its stringent but salutary severity. It is of consequence to establish this fact, because the common law, as it was usually of force before the revolution, is made obligatory upon this court by our adapting statute. It is said by Mr. Story, that Lord Coke recognized the right of modification, in a note to Southcote's Case; and also, that this right was admitted in Morse v. Slue, 1 Vent. 238. These are dicta which recognized the right before the era of 1776. And these are not adjudications--mere dicta, unsupported by authoritative decisions they reverse nothing, establish nothing. Mr. Story does not himself claim that there was any modification of the rule before that era. He does say, that the right to modify their common law liability "is now (1832) fully recognized:" Story on Bail., sec. 549. All the cases (and they are numerous) in support of his statement, are since our revolution. We do not, however, question that statement. Chancellor Kent says: "The doctrine of the carrier's exemption by means of notice, from his extraordinary responsibility, is said not to have been known until the case of Forward v. Pittard, 1 T. R. 27, in 1785,

and it was finally recognized and settled by judicial decision, in Nicholson v. Willan, 5 East, 507, in 1804:" 2 Kent, 606.

The saying to which the chancellor has reference was made in 1818 by Burrough, J., in Smith v. Horne, 8 Taunt. 144, and is this: "The doctrine of notice was never known until the case of Forward v. Pittard, 1 T. R. 27, which I argued many years ago.' "I lament that the doctrine of notice was ever introduced into Westminster Hall." The case then of Forward v. Pittard is the first in which the doctrine of notice is recognized according to Mr. Justice Burrough, and that was in 1785. It was not until 1804, that it was finally settled by judicial decision in Nicholson v Willan, 5 East, 507. Twenty-eight years after the declaration of independence, the question of notice in all its bearings was reviewed with great learning and ability in Hollister v. Nowlen, 19 Wend. 234 [32 Am. Dec. 455]. I refer to that case now simply for the purpose of saying that the learned judge in that opinion declared "that the doctrine that a carrier may limit his responsibility by notice, was wholly unknown to the common law at the time of our revolution. Thus we think it is made manifest. that in 1776, by the common law, a carrier could not limit or modify his extraordinary responsibility by notice. That it has been allowed since that time we admit, and to this point see Nicholson v. Willan, 5 East, 507; Clay v. Willan, 1 H. Bl. 298; Harris v. Packwood, 3 Taunt. 264; Evans v. Soule, 2 Mau. & Sel. 1; Smith v. Horne, 8 Taunt. 146; Batson v. Donovan, 4 Barn. & Ald. 39; Riley v. Horne, 5 Bing. 217; Bodenham v. Bennett, 4 Price, 34; Down v. Fromont, 4 Camp. 41. Still, however, in England, by common law, since the revolution, a carrier can not by special agreement exempt himself from all responsibility, so as to evade altogether the policy of the law; he can not exempt himself from liability in case of gross negligence and fraud: Story on Bail., sec. 549; Riley v. Horne, 5 Bing. 218; S. C., 2 Moo. & P. 331, 341; Sleat v. Fagg, 5 Barn. & Ald. 342; Wright v. Snell, Id. 350; Birkett v. Willan, 2 Id. 356; Beck v. Evans, 3 Camp. 267; S. C., 16 East, 244; Smith v. Horne, 4 Price, 31; S. C., 2 Moore, 18; Newborn v. Just, 2 Car. & P. 76. "It is perfectly well settled (we quote from Kent) that the carrier, notwithstanding notice has been given and brought home to the party, continues responsible for any loss or damage resulting from gross negligence or misfeasance in him or his servants:" 2 Kent, 607. The notices which are allowed in England since the revolution, go only the length of protecting the carrier from that responsibility which belongs to him as an insurer.

AM. DEO. VOL. XLVI-26

A distinction is sought to be drawn in some of the books between a notice carried home to the knowledge of the bailor and a special acceptance or contract. I can not see that there is any difference. A notice contains the terms and conditions upon which the carrier will serve the public, or some limitation of his extraordinary responsibility, which when known and acted upon by his customer, is a contract, as much so as if the same stipulations were made by a separate contract with each individual customer. The only difference is in the mode of proof; the rule of evidence is different, and that is all. It has been so decided, particularly in New York: Gould v. Hill, 2 Hill (N. Y.), 624; Cole v. Goodwin, 19 Wend. 281 [32 Am. Dec. 470].

It may be safely asserted that the American decisions, with scarcely an exception, sustain the old common-law doctrine. Mr. Wallace, in his notes to Smith's Leading Cases, holds the following language: "That it is possible for a common carrier by either a general notice or a special acceptance to limit his extraordinary liability, is a position which it is believed is not supported by the authority of any adjudged case in the United States:" 1 Smith's Lead. Cas. 183. The reverse doctrine is permanently settled in New York. We, then, adhere to the sound principles of the common law, sustained by the courts of our own union, and hold notices, receipts, and contracts, in restriction of the liability of a common carrier, as known and enforced in 1776, void, because they contravene the policy of the law: Hollister v. Nolen, 19 Wend. 234 [32 Am. Dec. 455]; Camden and Amboy Transportation Company v. Belknap, 21 Id. 355; Cole v. Goodwin, 19 Id. 251 [32 Am. Dec. 470]; Gould v. Hill, 2 Hill (N. Y.) 623; Alexander v. Greene, 3 Id. 9, 20; Story on Bail., 4th ed., 558, note; Atwood v. Reliance T. Co., 9 Watts, 87; Barney v. Prentiss, 4 Harr. & J. 317 [7 Am. Dec. 670]; Jones v. Voorhees, 10 Ohio, 145; 2 Kent, 608, note. The British parliament, declaring the sense of the British lawyers to a very great extent, has restored the old law as to the responsibility of carriers. See stat. 11, Geo. IV., and stat. 1, Wm. IV., c. 68; for these statutes, consult 1 Harr. Dig. 551, tit. Carriers, 4th ed., 1837; also, Hollister v. Nowlen, 19 Wend. 243, 249 [32 Am. Dec. 455]; and Smith's Mercantile Law, 233, 238, 2d Lond. ed., 1838.

The only modification of the common law rule which we admit, is the right of the carrier, by notice brought home to the passenger, to require the latter to state the nature and value of the property bailed, and to avail himself of any fraudulent acts