N. Y. Superior Court.—Dorr et al. v. N. J. Steam Navigation Co.

to admit of no doubt that as matter of contract, carriers, innkeepers, stablers and others, may, with the consent of those who employ them, undertake only certain risks and responsibilities." In the case of The Merchants' Bank v. New Jersey Steam Navigation Company, 6 Howard, Mr. Justice Nelson says, "As the extraordinary duties, annexed to his employment concern only in the particular instance the parties to the transaction involving simply rights of property, the safe custody and delivery of the goods, we are unable to perceive any well-founded objection to the restriction, or any stronger reasons forbidding it, than exist in the case of any other insurer of goods, to which his obligation is analogous, and which depends altogether upon the contract between the parties." And Justice Daniel, in the same case, remarks, "But a carrier may, in a given case, be exempted from liability for loss without fraud, by express agreement with the person for whom he undertakes, for I cannot well imagine a principle creating a disability in a particular class of persons to enter into a contract fraught with no criminal or immoral element, a disability, indeed, extending injuriously to others who might find it materially beneficial to make a contract with them." In Gordon and Walker v. Little, 8 Sargent and Rawle, 533, where the suit was against the defendant as a common carrier, and where there was an exception in the bill of lading of the dangers of the river, &c., Chief Justice Tilghman says, "If the case had rested solely on the written contract, there would have been much to say in favor of the decision of the court, because, be the common law what it may, the parties have a right to alter or modify it by special contract, and when they have done so the question is, what is the construction of the contract?" In the decision of the case of Gould v. Hill, Mr. Justice Cowen refers to his opinion in the case of Cole v. Goodwin, as containing his reasons for that decision, reaffirming the position that there is no difference between a special acceptance or special contract, and a notice brought home to the owner of the goods, except in the evidence by which the responsibility of the parties is shown. This position was denied by the Supreme Court of the United States, in the case of New Jersey Navigation Company v. Merchants' Bank, and also by Mr. Justice Bronson in the case of Hollister v. Nowlen, where he says, "But conceding that there may be a special contract for a restricted liability, such a contract cannot, I think, be inferred from a general notice brought home to the employer. The argument is, that where a party delivers goods to be carried after seeing a notice that the carrier intends to limit his responsibility, his assent to the terms of the notice may be implied. But this argument entirely overlooks a very important consideration. Notwithstanding the notice, the owner has a right to insist that the carrier shall receive the goods subject to all the responsibilities incident to his employment. If the delivery of goods under such circumstances authorizes an implication of any kind, the presumption is as strong, to say the least, that the owner intended to insist on his legal rights as it is that he was willing to yield to the wishes of the carrier." It is said that there may be an implied

N. Y. Superior Court.-Dorr et al. v. N. J. Steam Navigation Co.

special contract, where the carrier's notice is brought home to the bailor, and the assent of the latter can be presumed. That there is is an express special contract, where the contents of the notice are reduced to the form of a contract and the express assent of the owner of the goods is given. While the courts of England have recognized the former, and have given to it force in favor of the carrier, the courts of this State have rejected it. But the power and right of a carrier to limit his liability by an express special contract, as before mentioned, has been denied only in the case of Goold v. Hill. A common carrier has, in truth, two distinct liabilities-the one for losses by accident or mistake, where he is liable by the custom of the realm or the common law as an insurer-the other, for losses by default or negligence, where he is answerable as an ordinary bailee. It would certainly seem but reasonable that he might by express special contract restrict his liability as insurer, that he might protect himself against misfortune, even though public policy should require that he should not be permitted to stipulate for impunity where the loss occurs from his own default or neglect of duty. Such we understand to be the doctrine laid down in the case of the New Jersey Transportation Company v. Merchants' Bank, in 6 Howard, and such we consider to be the law in the present case. The right and the power to make such contracts is for the benefit of all parties. The owner of the goods may prefer to select his own insurer. He may have confidence in the integrity and good faith of the carrier, and that his property will not be lost through default or neglect, when he knows that in case of its destruction by fire, or other calamity, the carrier will be unable to respond for the loss. If no contract can be made, he must pay the carrier for his risk as insurer, and he must also pay a premium to others for his protection against the same loss for which the carrier stands responsible. It may be remarked, that the act of 1 William IV., c. 68, passed in 1830, while it declares that no public notice or declaration shall be construed to limit or in anywise affect the liability at common law of common carriers, with a single exception, also provides that nothing in this act "shall extend or be construed to annul or in anywise affect any special contract between such common carrier and any other parties for the conveyance of goods and merchandize." If the courts of England had departed from the old rule of the common law by giving effect to notices, the statute has restored the rule, and in doing so expressly recognizes the power to make special contracts.

The necessity of allowing carriers upon the seas to make special contracts with the owners of property committed to their care, was early seen and recognized, and exceptions in bills of lading, restricting the carrier's liability, have from time to time been added. The same necessity exists as to the domestic commerce in this vast country of ours, where the internal trade is so extensive, reaching as it does over the greater part of a continent; traversing rivers in length equal to the distance across the Atlantic; stretching out over large inland seas; where the amount of property annually carried has

In Exchequer.-Rowe v. Ross.

swollen up to hundreds upon hundreds of millions of dollars; where there exist extensive lines of transportation extending through different States, and controlled in different parts by the several owners, and where insurance companies are organized for the protection of the owners of the property thus transported.

It will at once be seen how important it is that the law which regulates the duties and liabilities of those who are the owners and the carriers of this property, should be uniform throughout all the States. And when once an important question like the present is settled by the Supreme Court of the United States, there should be a uniformity as far as practicable. In the present case, if we were to follow the ruling in the case of Goold v. Hill, we should do so with the full knowledge that if the case, upon the same pleadings, was in the other end of the Hall, the judgment would be in favor of the defendants. It is not necessary to discuss the question whether a bill of lading is evidence of a special contract, or when accepted by the owner, forms such special contract. It has been so held; but the pleadings in this case admit that it does constitute a special contract.

We are all of opinion that a common carrier may, by an express special contract, limit or restrict his common law liability as an insurer for the safe transportation and delivery of goods entrusted to him.

The judgment must be for the defendants on the demurrer, but with liberty to the plaintiff, on payment of costs, to withdraw the demurrer, and take issue or reply any new matter.

SELECTIONS FROM RECENT ENGLISH DECISIONS.

In the Exchequer.

Before a Full Bench.

LOWE v. Ross.

ACTION FOR USE AND OCCUPATION-ENTRY BY LESSEE-NEW TRIAL.

A lessor cannot bring an action for use and occupation against the lessee unless the lessee has entered in pursuance of the lease, and it makes no difference whether the lease be to commence at once or in future.

THIS was an action for use and occupation, tried before Maule, J., at Kingston, at the last Spring Assizes. There was a verdict for the plaintiff for £22 10s., with liberty for the defendant to move to enter a nonsuit. A rule nisi was subsequently obtained, against which

Dowdeswell, (M. Chambers, Q. C., with him,) now showed cause. This rule must be discharged. The question is, whether an action for use and occupation can be brought against a lessee before entry.

In Exchequer.-Rowe v. Ross.

PARKE, B.-It is clear that where there has not been an entry, an action for use and occupation cannot be maintained. The only question in our minds is, whether there has been an entry.

Dowdeswell.-There was no entry. The defendant entered the house on a Sunday, and the plaintiff's family and a lodger were then in the house. He went there to see the house, and not for the purpose of taking possession. The entry was by special license, and in fact amounted to no entry.

ALDERSON, B.-The judge treated this as no entry. There does not seem to have been an entry at all.

PARKE, B.-An action of debt on the covenant in a lease may lie before entry, but in order to maintain an action for use and occupation there must be an entry. Here the entry was by leave, and where the act is congeable, there is no entry. (Co. Lit. 245, b.)

Shee, Serj., contra.-In this case there was an entry by the defendant. It comes more within the latter portion of the passage in Coke upon Lyttleton, "but if the mulier cometh upon the ground of his own head, and cutteth down a tree, or diggeth the soil, or take any profit, these shall be interruptions; for rather than the bastard shall punish him in an action of trespass, the act shall amount in law to an entry, because he hath a right of entry." Here also the defendant had a right of entry, and his entry must be considered an exercise of that right. There was on the 16th of August a complete contract, which would prevent the landlord from letting his house to anybody else. The defendant was tenant under that lease, and no action of trespass could be brought against him. There was no evidence of an invitation in this case, nor even of a permission.

ALDERSON, B.-The question is for a reasonable man to say what is the effect of the act-whether from its nature it appears to be ad

verse.

Shee.-2dly. An actual entry is not necessary. A distinction has been made between a present and a future demise. (Piners v. Judson, 6 Bing. 206; Wolley v. Watling, 7 Car. & Payne, 60.)

PARKE, B.-It is equally true as to a present as a future demise, that an entry is necessary.

Shee.-Tindal, C. J., in the case of Smith v. Twoart, 3 Scott, N. R. 372, has laid it down that an entry is not necessary. The same doctrine is also laid down in Neal v. Swind, 2 Cr. & Jer. 377.

PLATT, B.-In that case there was clear possession; the jury had found it.

PARKE, B.-It seems to me very odd this point should be started. I thought the point had been clearly settled. In order to occupy, a tenant must have possession of the land. In the meantime it is only

an interesse termini.

Bovill, on the same side.-The doctrine of interesse termini does not apply to a lease to commence at once. (Bellasis v. Burbury 1 Lord Raym. 171; Williams v. Bosanquet, 1 Br. & Bing. ; Ryan v. Clerk, 13 Jur. 1000.) Entry is not necessary to vest a lease.

Criminal Law.-The Queen v. Hawkins.

PARKE, B.-I assume that in this case there was a valid lease. There remain, therefore, two questions to be considered: first, whether there was an entry. That question was decided in the negative by the jury at the trial, and I do not see any reason to disturb their verdict in that particular. The second question is: there being no entry, can an action for use and occupation be maintained? I certainly consider that point fully decided in the case of Edge v. Stafford, 1 C. & J. 391, where it was held that the action will not lie. That case was followed by How v. Kennet, 3 Ad. & E. 659. The rule is also very clearly laid down in How v. Bennet. In Nation v. Tozer, the same law is also laid down. Against these authorities there is only the dictum of Tindal, C. J. It is unnecessary for the decision of the case. These cases have clearly decided that there must be a holding or occupation, in order to support an action for use and occupation. It is not necessary in every case that the defendant should be tenant to the plaintiff, but he must have possession of the land either actual or constructive. The rule must therefore be discharged.

ALDERSON, B., and PLATT, concurred.

Rule discharged.

Criminal Law,

CROWN CASES.

CASES RESERVED FOR THE CONSIDERATION OF THE Judges.

REGINA V. HAWKINS,

LARCENY EMBEZZLEMENT.

If a servant receives from his master goods to sell, and appropriates them to his own use, he is not guilty of embezzlement, but larceny.

THE prisoner was tried upon an indictment containing counts for larceny and for embezzlement. The evidence was, that he had received goods from his master for the purpose of selling them, and had fraudulently appropriated them to his own use. The jury were directed to acquit the prisoner of larceny, and convict him of embezzlement; but a case was reserved.

E. W. Cox, for the prisoner.

PATTERSON, J.-How can this be embezzlement ?

Collier, contra, was then called upon. R. v. Murray, 1 Mov. & C. 276, is certainly against a conviction; but there is an earlier case the other way; Ingham's Cap. 2 Russ, 179; and R. v. Murray has been somewhat qualified by R. v. Masters, 1 Den. C. C. 332.

WILDE, C. J.-The defendant did not receive these goods for and