Theophilus Parsons.

Laws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics online

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Online LibraryTheophilus ParsonsLaws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics → online text (page 27 of 70)
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ble and just, will bind the party receiving it.

No party will be affected by any notice, neither the carrier, nor
a sender of goods, nor a passenger, unless a knowledge of it can
be brought home to him. In a case in Pennsylvania, where the
notice was in the English language, and the passenger was a Ger-
man, who did not understand English, it was held that the carrier
must prove that the passenger had actual knowledge of the limita-
tion in the notice.

But the knowledge may be brought home to him by indirect
evidence. As by showing that it was stated on a receipt given to
him, or on a ticket sold him, or in a newspaper which he read, or
even that it was a matter of usage, and generally known. This
question is one of fact, which the jury will determine upon all the
evidence, under the direction of the court. And if the notice is
ambiguous, they will be directed to give it the meaning which is
against the carrier, because it was his business to make it plain and

Any fraud towards the carrier, as a fraudulent disregard of a no-
tice, or an effort to cast on him a responsibility he is not obliged to
assume, or to make his liability seem to be greater than it really is,
will extinguish the liability of the carrier so far as it is affected by
such a fraud.

If a carrier gives notice which he is authorized to give, the party
receiving it is bound by it, and the carrier is under no obligation to
make a special inquiry or investigation to see that the notice is com-
plied with, but may assume that this is done.

It should, however, be remarked that such notice affects the lia-
bility of the common carrier only so far as it is peculiar to him ;
that is, his liability for a loss which occurs without his agency or
fault ; for he is just as liable as he would be without any notice,
for a loss or injury caused by his own negligence or default.


Perhaps a common carrier might make a valid bargain which
would protect him against every thing but his own wilful or fraudu-
lent misconduct. But no bargain could be made to protect him
against this.



A CAERIER of goods knows what goods, or rather what parcels
and packages, he receives and is responsible for. A carrier of pas-
sengers is responsible for the goods they carry with them as bag-
gage ; what that is, the carrier does not always know ; and he is
responsible only to the extent of what might be fairly and naturally
carried as baggage. This must always be a question of fact, to be
settled as such by the jury, upon all the evidence, and under the
direction of the court. But there can be no precise and definite
standard. A traveller on a long journey needs more money and
more baggage than on a short one ; one going to some places and
for some purposes needs more than one going to other places or
for other purposes.

Thus in New York it was decided that baggage does not properly
include money in a trunk, or any articles usually carried about thp
person. And in another New York case, it was held that, where
the baggage of a passenger consists of an ordinary travelling-trunk,
in which there is a large sum of money, such money is not consid-
ered as included under the term baggage, so as to render the carrier
responsible for it. But generally a passenger may carry as baggage,
money not exceeding an amount ordinarily carried for travelling-
expenses. So in Massachusetts it was held that common carriers
are responsible for money bond fide included in the baggage of a pas-
senger, for travelling-expenses and personal use, to an amount not
exceeding what a prudent person would deem proper and neces-
sary for the purpose.

In Pennsylvania, carriers have been held responsible for ladies'
trunks containing apparel and jewels. And in Illinois, a com-
mon carrier of passengers has been held liable for the loss of a


pocket-pistol, and a pair of duelling-pistols, contained in the car-
pet-bag of a passenger, which was stolen out of the possession of the
carrier. But in Tennessee, it has been held that " a silver watch,
worth about thirty-five dollars, also medicines, handcuffs, locks,
&c., worth about twenty dollars," were not included in the term bag-
gage, and that the carrier was not responsible for their loss. In Ohio,
it has been held that a gold watch, of the value of ninety-five dol-
lars, was a part of the traveller's baggage, and his trunk a proper place
to carry it in. In another New- York case, it has been held that
the owners of steamboats were liable as common carriers for the bag-
gage of passengers ; but, to subject them to damages for loss thereof,
it must be strictly baggage ; that is, such articles of necessity and
personal convenience as are usually carried by travellers. And it was
accordingly held, in that case, that the carrier was not liable for the
"loss of a trunk containing valuable merchandise and nothing else,
although it did not appear that the plaintiff had any other trunk
with him. But in a case in Pennsylvania, where the plaintiff was
a carpenter moving to the State of Ohio, and his trunk contained
carpenters' tools to the value of fifty-five dollars, which the jury
. found to be the reasonable tools of a carpenter, it was held that he
was entitled to recover for them as baggage.

There is some diversity, and perhaps some uncertainty, in the
Application of the rule ; but the rule itself is well settled, and a rea-
sonable construction and application of it must always be made ;
and, for this purpose, the passenger himself, and all the circum-
stances of the case, must be considered.

The purpose of the rule is to prevent the carrier from becoming
liable by the fraud of the passenger, or by conduct which would
have the effect of fraud ; for this would be the case if a passenger
should carry merchandise by way of baggage, and thus make the
carrier of passengers a carrier of goods without knowing it and with-
out being paid for it.

Generally, a common carrier of passengers, by stage, packet,
steamer, or cars, carries the moderate and reasonable baggage of
a passenger, without being paid specifically for it. But the law
considers a payment for this so far included in the payment of the
fare, as to form a sufficient ground for the carrier's liability to the
extent above stated.


The carrier is only liable for the goods or baggage delivered to
him and placed under his care. Hendb, if a sender of goods send
his own servant with them, and intrust them to him and not to the
carrier, the carrier is not responsible. So, if a passenger keeps his
baggage, or any part of it, on his person, or in his own hands, or
within his own sight and immediate control, instead of delivering it
to the carrier or his servants, the carrier is not liable, as carrier, for
any loss or injury which may happen to it; that is, not without
actual default in the matter. Thus, in an action brought in New
York to charge a railroad company, as common carriers, for the
loss of an overcoat belonging to a passenger, it appeared that the
coat was not delivered to the defendants, but that the passenger,
having placed it on the seat of the car in which he sat, forgot to
take it with him when he left, and it was afterwards stolen ; and it
was held that the defendants were not liable. But if the baggage
of a passenger is delivered to a common carrier, or his servant, he is
liable for it in the same way, and to the same extent, as he is for
goods which he carries.

In this country the rules of evidence permit the traveller to main-
tain his action against the carrier by proving, by his own testimony,
the contents of a lost trunk or box, and their value. And the tes-
timony of the wife of the owner is similarly admissible. But it is
always limited to such things in quantity, quality, kind, and
value as. might reasonably be supposed to be carried in such a
trunk or valise. The rule, with this limitation, seems reasonable
and safe, and is quite generally adopted. In Massachusetts it was
distinctly denied by the Supreme Court, but was afterwards estab-
lished by statute.

The common carrier of goods or of passengers is liable to third
parties for any injury done to them by the negligence or default of
the carrier, or of his servants. And it would seem that he is liable
even for the wilful wrong-doing of his servants, if it was committed
while in his employ, and in the management of the conveyance under
his control, although the wrong was done in direct opposition to his
express commands. So he is for injury to property by the wayside,
caused by his fault. But the negligence of the party suffering the
injury, if it was material and contributed to the injury, is a good


defence for the carrier ; unless malice on the carrier's part can be

Where the party injured is in fault, the common carrier has still
been held liable, if that fault was made possible and injurious
through the fault of the carrier. If passengers are carried gratui-
tously, that is, without pay, the common carrier is still liable for
injury caused by his negligence.

Whether a railroad company is responsible for fire set to build-
ings or property along the road, without negligence on its part, has
been much considered in this country. In some of our States they
are made so liable by statute provision. And this fact, together
wiih the general principles of liability for injury done, would seem
to lead to the conclusion that they are not liable, unless in fault, or
unless made so by statute.

Steam Packet Company.

Marks and Numbers.

Received from

the following articles, being marked and numbered as
in the margin, in apparent good order,- the contents
and value unknown,

to be transported from to on

one of the company's steamers, and to be delivered on
their wharf in , in like good order and

condition, the dangers of the sea, of fire on board or on
wharf, collision, and all other accidents excepted.


86 )

186 ) For the company.

The following form will show the terms and conditions on which
our express-companies carry their freight. This paper, given and
received, constitutes a contract.





Express Company.

Fast Freight Line.


Received from

the following packages, in apparent good
order, contents and value unknown :


Advanced Charges, $

D*ble 1st Class cts. per 100 Ibs.
1st Class cents per 100 Ibs.

2d Class cents per 100 Ibs.

3d Class cents per 100 Ibs.

4th Class cents per 100 Ibs.


Marked and numbered as in the margin, to
be forwarded by railroad and delivered at

upon payment of freight therefor,
as noted in the margin, subject to the condi-
tions and rules on the back hereof and those
of the several railroads over which the prop-
erty is transported, which constitute a part of
this contract.


On the back of this receipt is a minute and very full classification
of all articles likely to be offered for transportation, followed by the

Conditions and Hales.

The destination, name of the consignee, and weight of all articles of freight,
must be plainly and distinctly marked, or no responsibility will be taken for their
miscarriage or loss ; and when designed to be forwarded, after transportation on
the route, a written order must be given, with the particular line of conveyance
marked on the goods, if any such be preferred or desired.

The companies will not hold themselves liable for the safe carriage or custody
of any articles of freight, unless receipted for by an authorized agent ; and no
agent of the line is authorized to receive, or agree to transport, any freight, which
is not thus receipted for.

No responsibility will be admitted,, under any circumstances, to a greater


amount upon any single article of freight than $200. unless upon notice given of
such amount, and a special agreement therefor. Specie, drafts, bank-bills, and
other articles of great intrinsic or representative value, will only be taken upon a
representation of their value, and by a special agreement assented to by the super-
intendent of the receiving road.

The companies will not hold themselves liable at all for injuries to any articles
of freight during the course of transportation, arising from the weather, or acci-
dental delays, or natural tendency to decay. Nor will their guaranty of special
despatch cover cases of unavoidable or extraordinary casualties or storms, or delays
occasioned by low water and ice ; and may be stored at the risk and expense of the
owner. Nor will they hold themselves liable, as COMMON CARRIERS, for such
articles, after their arrival at their place of destination at the company's warehouses
or depots.

Carriages and sleighs, eggs, furniture, looking-glasses, glass and crockery ware,
machinery, mineral acids, piano-fortes, stoves and castings, sweet-potatoes, wrought
marble, all liquids put up hi glass or earthen ware, fruit, and live animals, will only
be taken at the owner's risk of fracture or injury during the course of transporta-
tion, loading and unloading, unless specially agreed to the contrary.

Gunpowder, friction matches, and like combustibles, will not be received on any
terms ; and all persons procuring the reception of such freight by fraud or conceal-
ment, will be held responsible for any damage which may arise from it while La tLe
custody of the company.

It is further stipulated and agreed, that goods shipped to points west of

shall be subject to a change hi classification and corresponding
change of rates beyond those points.

Cases or packages of boots and shoes, and of other articles liable to peculation
or fraudulent abstraction, must be strapped with iron or wood, or otherwise securely
protected, or the companies will not be liable for diminution of the original con-
tents, and the companies will hold the freighter, in all cases, to bear the loss arising
from improper packing.

It is also agreed between the parties that the said companies, and the railroads
and steamboats with which they connect, shall not be held accountable for any
deficiency hi packages if receipted for to them in good order.

All articles of freight arriving at their places of destination must be taken away
within twenty-fours hours after being unladen from the cars, each company
reserving the right of charging storage on the same, or placing the same hi store at
the risk and expense of the owner, if they see fit, after lapse of that tune.





ALL of our States have what is called a Statute of Limitations.
It is not exactly the same everywhere ; but generally it enacts that
all actions of account, and all which can be brought for indebtedness
or damages, and all actions of debt grounded upon any lending, or
contract without seal, and all actions for arrearages of rent, shall be
commenced and sued within six years next after the cause of such
actions or suit arises, and not after. In few words, all claims which
do not rest on a seal or a judgment must bo sued within six years
from the time when they arise.

In some States, a statute provides, in substance, that, if a debt or
promise be once barred by the Statute of Limitations, no acknowl-
edgment of the debt or new promise shall renew the debt, and take
away the effect of the statute, unless the new promise is in writing,
and^is signed by the party who makes the promise. But this
statute expressly permits a part-payment either of principal or inter-
est of the old debt to have the same effect as a new promise. And
this statute also provides, that if there be joint contractors or debtors,
and a plaintiff is barred by the statute against both, but the bar of
the statute is removed as to one by a new promise or otherwise, the
plaitftiff may have judgment against this one, but not against the

Such statutes have been passed in Maine, Massachusetts, Ver-
mont, New York, Indiana, Michigan, Arkansas, and California.




FOB the law of limitation there is a twofold foundation : in the
first place, the actual probability that a debt which has not been
claimed for a long time was paid, and that this is the reason of the
silence of the creditor. But, besides this reason, there is the inex-
pediency and injustice of permitting a stale and neglected claim or
debt, even if it has not been paid, to be set up and enforced after a
long silence and acquiescence.

Before inquiring into the rules of law which now apply to the case
of an acknowledgment or new promise, it should be remarked that
a prescription, or limitation, of common law, much more ancient
than the statutes above quoted, is still in full force. This is the
presumption of payment after twenty years, which is applicable to
all debts ; not only the simple contracts to which the Statutes of
Limitation refer, that is, contracts which are merely oral, or which
if written have no seal, but to specialties, or contracts or debts under
seal or by judgment of court. Of these it will not be necessary to
Bpeak here, excepting to remark, that in a few of our States the
Statute of Limitation excepts a promissory note which is signed
in the presence of an attesting witness, and is put in suit by the
original payee, or his executor or administrator ; such a note in
those States, as in Maine and Massachusetts, may be sued any time
within twenty years after it is due. Bank-bills and other evidences
of debt issued by banks, are everywhere excepted from the operation
of the statute.



WHAT is the new promise which suffices to take a case out of the
statute ? A mere acknowledgment, which does not contain, by any
reasonable implication or construction, a new promise, is not suffi-
cient, and still less so if it expressly excludes a new promise. In


the leading American case upon this point, before the Supreme Court
of the United States, it was proved, in answer to the plea of the
Statute of Limitations, that the defendant, one of the partners of a
firm then dissolved, said to the plaintiff, " I know we are owing
you ; " " I am getting old, and I wish to have the business settled : "
it was held that these expressions were insufficient to revive the
debt. So, in New Hampshire, in an action on a promissory note,
the defendant, on being asked to pay the note, said " he guessed the
note was outlawed, but that would make no difference, he was will-
ing to pay his honest debts, always." As he did not state in direct
terms that he was willing to pay the note, this was held not sufficient
to revive the debt. A new promise is not now implied by the law
itself, from a mere acknowledgment.

The new promise need not define the amount of the debt. That
can be done by other evidence, if only the existence of the debt and
the purpose of paying it are acknowledged. Still, the new promise
must be of the specific debt, or must distinctly include it ; for if
wholly general and undefined, it is not enough. A testator who
provides for the payment of his debts generally, does not thereby
make a new promise as to any one of them.

If the new promise is conditional, the party relying upon it must
be prepared to show that the condition has been fulfilled. Thus, if
the new promise be to pay " when I am able," the promisee must
prove not only the promise, but that the promisor is able to pay the

As the acknowledgment should be voluntary, it follows that one
made under process of law, as by a bankrupt, or by answers to inter-
rogatories which could not be avoided, should never have the effect
of a new promise.



A PART-PAYMENT of a debt is such a recognition of it as implies a
new promise ; even if it was made in goods or chattels, if they were
offered as payment, and agreed to be received as payment, or by


negotiable promissory note or bill. Thus, in a case where one
was sued for money due for a quantity of hay, and pleaded that it had
been due more than six years, which was a good defence, the plain-
tiff proved in reply that defendant had given him within six years a
gallon of gin as part-payment for his debt ; and it was held that this
took the case out of the Statute of Limitations, and the plaintiff re-
covered. But a payment has this effect only when the payment is
made as of a part of a debt. If it is made in settlement of the
whole, of course it is no promise of more. And a bare payment,
without words or acts to indicate its character, would not be con-
strued as carrying with it an acknowledgment that more was due
and would be paid.

If a debtor owes several debts, and pays a sum of money, he has
the right of appropriating that money to one debt or another as he
pleases. If he pays it without indicating his own appropriation, the
general rule is, that the creditor who receives the money may ap-
propriate it as he will. There is, however, this exception. If there
be two or more debts, some of which are barred by the statute, and
others are not barred by it, the creditor cannot appropriate the pay-
ment to a debt that is barred, for the purpose of taking it out of the
statute by such part-payment.



THE original English statute, which ours is taken from, also pro-
vides, that if a creditor, at the time when the cause of action accrues,
is a minor, or a married woman, or not of sound mind, or imprisoned,
or beyond the seas, the six years do not begin to run ; and he may
bring his action at any time within six years after such disability
ceases to exist. And also, if any person against whom there shall be
a cause of action, shall, when such cause accrues be beyond the seas
(which means out of the country, and here, out of the State), the
action may be brought at any time within six years after his return.
Similar exceptions and disabilities are usually contained in our own


The effect of these is, that the disability must exist when the debt
accrued ; and then, so long as the disability continues to exist, the
statute does not take effect. But it is a general rule, that, if the
six years begin to run, they go on without any interruption or sus-
pension from any subsequent disability. Thus, if a creditor be of
sound mind, or a debtor be at home, when the debt accrues, and
one month afterwards the creditor becomes insane, or the debtor
leaves the country, nevertheless the six years go on, and after the
end of that time no action can be commenced for the debt. Or if
the disability exists when the debt accrues, and some months after-
wards ceases, so that the six years begin to run when it ceases, and
afterwards the disability comes again, it does not interrupt the six

If, when a debt is due, the debtor is out of the State, the six years
do not begin to run. If afterwards he returns to the State, they
then begin to run; and, having begun, they continue to run,
although he goes out of the State again, and returns no more.

In this country, a rational construction has been given to the
disability of being out of the State, and its removal ; and it is not
understood to be terminated merely by a return of the debtor for a
few days, if during those days he was not within reach. If, how-
ever, the creditor knew that he had returned, or might have known
it by the exercise of reasonable care and diligence, soon enough to
have profited by it, this removal of the disability brings the statute
into operation, although the return was for a short time only.



IT is sometimes a question from what point of time the six years
are to be counted. And the general rule is, that they begin when
the action might have been commenced. If a credit is given, this
period does not begin until the credit has expired. If a note on
time be given, the six years do not begin until the time has expired,
including the additional three days of grace ; if a bill of exchange



be given, payable at sight, then the six years begin after present-
ment and demand ; but if a note be payable on demand, or money

Online LibraryTheophilus ParsonsLaws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics → online text (page 27 of 70)