ton, 39 L. T. Rep. (N. S.) 535; L. R., 4 Q. B. Div. 35; Root v. French, 13 Wend. 570.

COCKBURN, C. J. This was an action for the wrongful conversion of a quantity of flour alleged to be the property of the plaintiffs. The facts were shortly these: The plaintiffs, who are merchants at Liverpool, had lent to the firm of Denis Daly & Sons, also merchants at Liverpool, their acceptances for the sum of £11,500 (for which Denis Daly & Sons undertook to provide at or before maturity), on the security of certain flour, a memorandum as to such security being given by Denis Daly & Sons in these terms: "As security for the due fulfillment on our part of this undertaking, we have warehoused in your name sundry lots of flour, and in consideration of your delivering to us or our order said flour as sold, we further undertake to specifically pay you proceeds of all sales thereof immediately on their receipt." The flour was accordingly warehoused in the name of the plaintiffs in a room let to them for the purpose, and of which they kept the key and paid the rent. Three of the acceptances thus given by the plaintiffs, amounting in the whole to £6 500, having been in due time provided for by Denis Daly & Sons, it was agreed between them and the plaintiffs that the two remaining bills, for £2,500 each, should be renewed, which was accordingly done, a memorandum similar to the former one being again given by Denis Daly & Sons, whereby they undertook to provide for the acceptances at or before maturity, with this addition: "As security for the due fulfillment on our part of this undertaking, you hold two lots of Baltic whites flour, warehoused in December and January last." The Baltic whites flour thus mentioned consisted of 1,500 sacks, being the flour originally pledged to the plaintiffs. In the interval between the giving of these last-mentioned acceptances and the time of their becoming due, one of the firm of Denis Daly & Sons, on the 13th of May, 1878, applied to the defendants to advance them a sum of £2,500 on the security of the 1,500 sacks of flour deposited, as has been stated, with the plaintiffs, but without in any way communicating to them the fact of the flour having been so deposited. The defendants, in entire ignorance of this fact, and believing the flour to be the property of Denis Daly & Sons, agreed to advance the £2,500 on the security of the flour, but on the terms that they were to have absolute possession of the flour, and to warehouse it in their own name, and to have power to sell it. For the fraudulent purpose of obtaining possession of the flour, so as to be able to give possession of it to the defendants, Arthur Daly, one of the firm of Denis Daly & Sons, brought to the plaintiffs, but unknown to the defendants, a memorandum in these terms: "14th May, 1878. We have sold Messrs. R. & J. Lawson 1,500 sacks Baltic whites, payment as follows: "£1,000 upon delivery, £1,000 in fourteen days, £1,000 in a month, which amounts we will hand you as received. D. Daly & Sons." The plaintiffs, by the fraudulent misrepresentation that Denis Daly & Sons had found a purchaser for the flour, and would hand over to them the amount to be received as the price, were induced to part with the possession of the flour, and for that purpose gave, as requested, on the 14th of May, a delivery order to Denis Daly & Sons; and subsequently addressed a written direction to the landlord of the warehouse, which they delivered to Arthur Daly, to transfer the room in which the flour was deposited to Lawson & Co., which was accordingly done. The defendants, on the same day that the delivery order was given by the plaintiffs to Denis Daly & Sons, namely, the 14th May, advanced to Denis Daly & Sons the sum of £1,725, and on the next day the further sum of £775 in cash. It is stated in the case that the fraudulent memorandum of the sale to the defendants, by which the plaintiffs were

induced to give the delivery order for the flour, was brought to them by Arthur Daly after banking hours on the 14th, from which it may be inferred that the £1,725 advanced by the defendants to Denis Daly & Sons on that day was advanced before the possession of the flour had been given up to the latter by the plaintiffs. Possession of the flour having been transferred to defendants, they, between the 18th May and the 1st June, by virtue of the right to sell vested in them by the agreement with Denis Daly & Sons, sold the flour in the Liverpool market for sums amounting in the whole to £2.647 10s. 3d., and the flour was delivered to the respective purchasers. Of the £2,500 thus advanced by the defendants to Denis Daly & Sons, £500 was paid by the latter to the plaintiffs, as part of the price received on the sale of the flour. But the plaintiffs have received no further payment, and Denis Daly & Sons have become bankrupts. We have in this case to discharge the unpleasant duty of deciding on which of two innocent parties the loss, occasioned to one or other of them by the fraud of a third, shall fall. In discharging such a duty, a court, to use the words of Lord Cairns in Cundy v. Lindsay, ubi sup.. "can do no more than apply rigorously the settled and well-known rules of the law." Unfortunately, however, some difficulty presents itself in the present case in applying the law. For the case is, so far as we are aware, sui generis, the contract out of which the claim of the plaintiffs arises being of an altogether exceptional character. The contract is not one in which goods are deposited upon the ordinary terms incidental to a bailment of pledge, namely, that the thing pledged shall remain in the possession of the pledgee until the engagement of the pledgor, which it was given to insure, has been fulfilled. Here the pledgors, when they find a purchaser, are to have possession of the thing pledged, in order to sell it, not in the name, or even on behalf of the pledgees, but as their own, subject only to the condition of handing over the proceeds in liquidation of the debt. It may be doubted whether under such a contract any special property, however limited, vested in the pledgees, or whether their right was not limited to the possession and custody of the goods, so as to secure to them the knowledge of any sale which the owners might be able to make, and so to afford them the opportunity of insisting on the price being handed over to them as soon as paid. Assuming, however, that under the contract with Denis Daly & Sons the plaintiffs acquired, as pledgees, a special property in the flour deposited in their name, it was subject to the right of the pledgors to have the flour given up to them on their finding a purchaser for the purpose of the sale by them as owners, without any intervention on the part of the pledgees. If, having obtained the goods for the purpose of selling them, and having sold them, the pledgors had kept the price instead of handing it over to the pledgees, the latter could not have disputed the title of the buyer, and would have had no remedy except by action against the pledgors for breach of contract. In compliance with the agreement, the flour was delivered by the plaintiffs to Denis Daly & Sons, the pledgors, with the full intention that they should sell it as their own and make a good title to it to their vendees. It is true that the possession of the goods was obtained by the fraud of the pledgors, but this appears to us to make no difference in the result. The flour having been given up by the plaintiffs to Denis Daly & Sons, conformably to the contract, to sell as their own, the special property vested in the plaintiffs as pledgees, whatever it may have been, was intentionally surrendered; and the possession having been parted with, the contract of pledge was, at all events for the time being, at an end. The abandonment of the property in, and the surrender of, the thing pledged might, as between the pledgees and pledgors, have been revoked as having been obtained

by fraud, so long as the goods remained in the hands of the pledgors. But wheu, prior to any such revocation, the property in the goods had been transferred by the owners for good consideration to a bona fide transferee, the latter acquired, as it appears to us, an indefeasible title. The analogy to a case of sale where the vendor is induced to part with his property by fraud appears to us complete; and the principle laid down by the Court of Common Pleas in White v. Garden, ubi sup., and by the House of Lords in Cundy v. Lindsay, ubi sup., and acted upon by this court in Moyce v. Newington, ubi sup., is, we think, applicable to the case before us; and we are therefore of opinion that the defendants acquired a good title to the flour by their contract with Denis Daly & Sons. Our view of the case being founded on the assumption that the property in the goods became, by the act of the pledgees, revested in the pledgors, it makes no difference that the goods, having been parted with by the plaintiffs with a view to their being sold, were, instead of being sold, pledged. The property having, by the act of the pledgees, become revested in the pledgors, the latter were as competent to dispose of the goods by way of pledge as by that of sale. Nor in this view of the case is it in any way material that the larger portion of the money advanced by the defendants to Denis Daly & Sons was paid (if we are to take the fact to have been so) before the possession of the flour was given up by the plaintiffs. The property in the flour was made over to the defendants, and the possession of it given up to them, by Denis Daly & Sons, for good consideration, when the full property in it was, as we think, in the latter, and the transfer took place by virtue of a contract whereby the money was to be advanced on the pledge of the goods. That the money was paid down before the goods were delivered, provided the property in the goods was in Denis Daly & Sous when, in fulfillment of the contract, they transferred the property in, and gave possession of, the flour, can make no difference. But there is a further ground on which we are of opinion that the defendants are entitled to our judgment. We are prepared to hold, as we intimated in Moyce v. Newington, ubi sup., that where one of two innocent parties must suffer from the fraud of a third, the loss should fall on the one who enabled the third party to commit the fraud. It has been so held by the Supreme Court of Judicature of the State of New York in a case of Root v. French, 13 Wend. 570. In Vickers v. Hertz, L. R., 2 H. of L. Sc. 115, Lord Chancellor Hatherley says: "If one person arms another with a symbol of property, he should be the sufferer, and not the person who gives credit to the operation and is misled by it." It is on this principle that the legislation with reference to fraudulent sales made by factors or agents intrusted with the possession of goods or of the documents of title to goods has been based. It was on this ground that the Court of Session in Pochin v. Robinow, 3d Series, vol. 7, p. 622, and in Vickers v. Hertz, L. R., 2 H. of L. Sc. 115, independently of the factors acts, and proceeding on general principles, decided in favor of an innocent purchaser. And though in Vickers v. Hertz, in the House of Lords, the case was decided in favor of the defendant, as coming under the factors acts, Lord Colonsay expressly says that the judgment appealed from was well founded independently of those acts. Now, in the case before us, Denis Daly & Sons were allowed by the plaintiffs to appear as the ostensible owners of the flour, and to exercise uncontrolled dominion over it, without the plaintiffs, by intervening themselves in the transaction, as they might have done, securing themselves against any fraudulent conduct on the part of Denis Daly & Sons. It would therefore be in the highest degree unjust and inequitable that the defendants, Lawson & Co., who have innocently advanced money on the goods in the or

dinary course of commercial dealing, should be sufferers through the improvident contract of the plaintiff's with Denis Daly & Sons, or want of proper caution on their part. We therefore on both grounds give judgment for the defendants.

Judgment for defendants.

LIABILITY OF CARRIERS OF PASSENGERS FOR BAGGAGE.

SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1879.

NEW YORK CENTRAL AND HUDSON RIVER RAILROAD, Plaintiff in Error, V. FRALOFF.

1. It is competent for passenger carriers, by specific regulations, distinctly brought to the knowledge of the passenger, which are reasonable, and not inconsistent with any statute or its duties to the public, to protect itself against liability, as insurer, for baggage exceeding a fixed amount in value, except upon additional compensation proportioned to the risk.

2. As a condition precedent to any contract for the transportation of baggage, the carrier may require information from the passenger as to its value, and demand extra compensation for any excess beyond that which the passenger may reasonably demand, to be transported as baggage under the contract to carry the per

son.

3. The carrier may be discharged from liability for the full value of the passenger's baggage, if the latter, by any device or artifice, puts off inquiry as to such value, whereby is imposed upon the carrier responsibility beyond what it is bound to assume in consideration of the ordinary fare charged for the transportation of the person.

4. In absence of legislation, or special regulations by the carrier, or of conduct by the passenger misleading the carrier as to the value of baggage, the failure of the passenger, unasked, to disclose the value of his baggage is not, in itself, a fraud upon the carrier.

5. To the extent that articles carried by a passenger for his personal use when travelling exceed in quantity and value such as are ordinarily or usually carried by passengers of like station and pursuing like journeys, they are not baggage for which the carrier, by general law, is responsible as insurer.

6. Whether a passenger has carried such an excess of baggage is not a pure question of law for the sole or final determination of the court, but a question of fact for the jury, under proper guidance as to the law of the case, and its determination of the facts- no error of law appearing-is not subject to re-examination in this

court.

7. Section 4281 of Revised Statutes has no reference to the liability of carriers by land for the baggage of passengers.

N error to the Circuit Court of the United States for

the Southern District of New York. The action was brought against the plaintiff in error by Olga de Maluta Fraloff to recover for the loss of baggage. The opinion states the facts.

Mr. Justice HARLAN delivered the opinion of the court.

This is a writ of error to a judgment rendered against the New York Central and Hudson River Railroad Company, in an action to recover the value of certain articles of wearing apparel alleged to have been taken from the trunk of the defendant in error, while a passenger upon the cars of the company, and while the trunk was in its charge for transportation as part of her baggage.

There was evidence before the jury tending to establish the following facts:

The defendant in error, a subject of the Czar of Russia, possessing large wealth, and enjoying high social position among her own people, after traveling in Europe, Asia, and Africa, spending some time in London

and Paris, visited America, in the year 1869, for the double purpose of benefiting her health and seeing this country. She brought with her to the United States six trunks, of ordinary travel-worn appearance, containing a large quantity of wearing apparel, including many elegant, costly dresses, and also rare and valuable laces, which she had been accustomed to wear upon different dresses, when on visits, or frequenting theatres, or attending dinners, balls, and receptions. A portion of the laces was made by her ancestors upon their estates in Russia. After remaining some weeks in the city of New York she started upon journey westward, going first to Albany, and taking with her, among other things, two of the trunks brought to this country. Her ultimate purpose was to visit a warmer climate, and, upon reaching Chicago, to determine whether to visit California, New Orleans, Havana, and probably Rio Janeiro. After passing a day or so at Albany, she took passage on the cars of the New York Central and Hudson River Railroad Company for Niagara Falls, delivering to the authorized agents of the company for transportation as her baggage the two trunks above described, which contained the larger portion of the dress-laces brought with her from Europe. Upon arriving at Niagara Falls she ascertained that one of the trunks, during transportation from Albany to the Falls, had been materially injured, its locks broken, its contents disturbed, and more than two hundred yards of dress-lace abstracted from the trunk in which it had been carefully placed before she left the city of New York. The company declined to pay the sum demanded as the value of the missing laces, and having denied all liability therefor, this action was instituted to recover the damages which the defendant in error claimed to have sustained by reason of the loss of her property.

Upon the first trial of the case, in 1873, the jury, being unable to agree, was discharged. A second trial took place in the year 1875. Upon the conclusion of the evidence in chief at the last trial, the company moved a dismissal of the action, and at the same time, submitted numerous instructions which it asked to be then given to the jury, among which was one peremptorily directing a verdict in its favor. That motion was overruled, and the court declined to instruct the jury as requested. Subsequently, upon the conclusion of the evidence upon both sides, the motion for a peremptory instruction in behalf of the company was renewed, and again overruled. The court thereupon gave its charge, to which the company filed numerous exceptions, and also submitted written requests, forty-tvo iu number, for instructions to the jury. The court refused to instruct the jury as asked, or otherwise than as shown in its own charge. To the action of the court in the several respects indicated, the company excepted in due form. The jury returned a verdict against the company for the sum of $10.000, although the evidence, in some of its aspects, placed the value of the missing laces very far in excess of that

amount.

It would extend this opinion to an improper length, and could serve no useful purpose, were we to enter upon a discussion of the various exceptions, unusual in their number, to the action of the court in the admission and exclusion of evidence as well as in refusing to charge the jury as requested by the company. Certain controlling propositions are presented for our consideration, and upon their determination the substantial rights of parties seem to depend. If in respect of these propositions, no error was committed, the judgment should be affirmed without any reference to points of a minor and merely technical nature, which do not involve the merits of the case, or the just rights of parties.

In behalf of the company it is earnestly claimed that the court erred in not giving a peremptory in

struction for a verdict in its behalf. This position, however, is wholly untenable. Had there been no serious controversy about the facts, and had the law upon the undisputed evidence precluded any recovery whatever against the company, such an instruction would have been proper. 1 Wall. 369; 11 How. 372; 19 id. 269; 22 Wall. 121. The court could not have given such an instruction in this case without usurping the functions of the jury. This will, however, more clearly appear from what is said in the course of this opinion.

The main contention of the company, upon the trial below, was that good faith required the defendant in error, when delivering her trunks for transportation, to inform its agents of the peculiar character and extraordinary value of the laces in question; and that her failure, in that respect, whether intentional or not, was, in itself, a fraud upon the carrier which prevented any recovery in this action.

The Circuit Court refused, and in our opinion, rightly, to so instruct the jury. We are not referred to any legislative enactment restricting or limiting the responsibility of passenger carriers, by land, for articles carried as baggae. Nor is it pretended that the plaintiff in error had, at the date of these transactions, established or promulgated any regulation as to the quantity or value of baggage which passengers upon its cars might carry, without extra compensation, under the general contract to carry the person. Further, it is not claimed that any inquiry was made of the defendant in error, either when the trunks were taken into the custody of the carrier, or at any time prior to the alleged loss, as to the quantity or value of their contents. It is undoubtedly competent for a carrier of passengers, by specific regulations, distinctly brought to the knowledge of the passenger, which are reasonable in their character and not inconsistent with any statute or its duties to the public, to protect itself against liability, as insurer, for baggage exceeding a fixed amount in value, except upon additional compensation, proportioned to the risk. And in order that such regulations may be practically effective, and the carrier advised of the full extent of its responsibility, and consequently of the degree of precaution necessary upon its part, it may rightfully require, as a condition precedent to any contract for the transportation of baggage, information from the passenger as to its value; and if the value thus disclosed exceeds that which the passenger may reasonably demand to be transported as baggage without extra compensation, tho carrier, at its option, can make such additional charge as the risk fairly justifies. It is also undoubtedly true that the carrier may be discharged from liability for the full value of the passenger's baggage, if the latter, by false statements, or by any device or artifice, puts off inquiry, as to such value, whereby is imposed upon the carrier responsibility beyond what it was bound to assume in consideration of the ordinary fare charged for the transportation of the person. But in the absence of legislation limiting the responsibility of carriers for the baggage of passengers in the absence of reasonable regulations upon the subject by the carrier, of which the passenger has knowledge-in the absence of inquiry of the passenger as to the value of the articles carried, under the name of baggage, for his personal use and convenience when travelling — and in the absence of conduct upon the part of the passenger misleading the carrier as to the value of his baggage, the court cannot, as mere matter of law, declare, as it was in effect requested in this case to do, that the mere failure of the passenger, unasked, to disclose the value of his baggage, is a fraud upon the carrier, which defeats all right of recovery. The instructions asked by the company virtually assumed that the general law, governing the rights, duties and responsibilities of passenger carriers, prescribed a definite, fixed limit

of value, beyond which the carrier was not liable for baggage, except under a special contract or upon previous notice as to value. We are not, however, referred to any adjudged case, or to any elementary treatise which sustains that proposition, without qualification. In the very nature of things no such rule could be established by the courts in virtue of any inhereut power they possess. The quantity or kind or value of the baggage which a passenger may carry under the contract for the transportation of his person depends upon a variety of circumstances which do not exist in every case. "That which one traveller," says Erle, C. J., in Philpot v. North-western Railway Co., 19 C. B. (N. S.) 321,"would consider indispensable would be deemed superfluous and unnecessary by another. But the general habits and wants of mankind will be taken in the mind of the carrier when he receives a passenger for conveyance." Some of the cases seem to announce the broad doctrine, that by general law, in the absence of legislation, or special regulations by the carrier, of the character indicated, a passenger may take, without extra compensation, such articles adapted to personal use as his necessities, comfort, convenience, or even gratification may suggest; and that whatever may be the quantity or value of such articles, the carrier is responsible for all damage or loss to them, from whatever source, unless from the act of God or the public enemy. But that, in our judgment, is not an accurate statement of the law. Whether articles of wearing apparel, in any particular case, constitute baggage, as that term is understood in the law, for which the carrier is responsible as insurer, depends upon the inquiry whether they are such in quantity and value as passengers under like circumstances ordinarily or usually carry for personal use when travelling. "The implied undertaking," says Mr. Angell, of the proprietors of stage-coaches, railroads and steamboats, to carry in safety the baggage of passengers, is not unlimited and cannot be extended beyond ordinary baggage, or such baggage as a traveller usually carries with him for his personal convenience." Angell on Carriers, § 115. In Hannibal Railroad v. Swift, 12 Wall. 275, this court, speaking through Mr. Justice Field, said that the contract to carry the person "only implies an undertaking to transport such a limited quantity of articles as are ordinarily taken by travellers for their personal use and convenience, such quantity depending, of course, upon the station of the party, the object and length of his journey, and many other considerations." To the same effect is a decision of the Queen's Bench in Macrow v. Great Western Railway Co., L. R., 6 Q. B. 121, where Chief Justice Cockburn announced the true rule to be "that whatever the passenger takes with him for his personal use or convenience, according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities, or to the ultimate purpose of the journey, must be considered as personal luggage." 2 Pars. on Cont. 199. To the extent, therefore, that the articles carried by the passenger for his personal use exceed in quantity and value such as are ordinarily or usually carried by passengers of like station and pursuing like journeys, they are not baggage for which the carrier, by general law, is responsible as insurer. In cases of abuse by the passenger of the privilege which the law gives him, the carrier secures such exemption from responsibility, not, however, because the passenger, uninquired of, failed to disclose the character and value of the articles carried, but because the articles themselves, in excess of the amount usually or ordinarily carried, under like circumstances, would not constitute baggage within the true meaning of the law. The laces in question confessedly constituted a part of the wearing apparel of the defendant in error. They were adapted to, and exclusively designed for, personal use, according to her convenience, comfort, or tastes, during the

extended journey upon which she had entered. They were not merchandise, nor is there any evidence that they were intended for sale or for purposes of business. Whether they were such articles in quantity and value as passengers of like station and under like circumstances ordinarily or usually carry for their personal use, and to subserve their convenience, gratification or comfort while travelling, was not a pure question of law for the sole or final determination of the court, but a question of fact for the jury, under proper guidance from the court as to the law governing such cases. It was for the jury to say to what extent, if any, the baggage of defendant in error exceeded in quantity and valuo that which was usually carried without extra compensation, and to disallow any claim for such

excess.

Upon examining the carefully guarded instructions given to the jury, we are unable to see that the court below omitted any thing essential to a clear comprehension of the issues, or announced any principle or doctrine not in harmony with settled law. After submitting to the jury the disputed question as to whether the laces were, in fact, in the trunk of the defendant in error, when delivered to the company at Albany for transportation to Niagara Falls, the court charged the jury, in substance, that every traveller was entitled to provide for the exigencies of his journey in the way of baggage, was not limited to articles which were absolutely essential, but could carry such as were usually carried by persons travelling, for their comfort, convenience and gratification upon such journeys; that the liability of carriers could not be maintained to the extent of making them responsible for such unusual articles as the exceptional fancies, habits or idiosyncracies of some particular individual may prompt him to carry; that their responsibility, as insurers, was limited to such articles as it was customary or reasonable for travellers of the same class in general, to take for such journeys as the one which was the subject of inquiry, and did not extend to those which the caprice of a particular traveller might lead that traveller to take; that if the company delivered to the defendant in error, aside from the laces in question, baggage which had been carried, and which was sufficient for her as reasonable baggage, within the rules laid down, she was not entitled to recover; that if she carried the laces in question for the purpose of having them safely kept and stored by railroad companies and hotel keepers, and not for the purpose of using them, as occasion might require, for her gratification, comfort or convenience, the company was not liable; that if any portion of the missing articles were reasonable and proper for her to carry, and all was not, they should allow her the value of that portion.

Looking at the whole scope and bearing of the charge, and interpreting what was said, as it must necessarily have been understood both by the court and jury, we do not perceive that any error was committed to the prejudice of the company, or of which it can complain. No error of law appearing upon the record, this court cannot reverse the judgment because, upon examination of the evidence, we may be of the opinion that the jury should have returned a verdict for a less amount. If the jury acted upon a gross mistake of facts, or were governed by some improper influence or bias, the remedy therefor rested with the court below under its general power to set aside the verdict. But that court finding that the verdict was abundantly sustained by the evidence, and that there was no ground to suppose that the jury had not performed their duty impartially and justly, refused to disturb the verdict, and overruled a motion for new trial. Whether its action, in that particular, was erroneous or not, our power is restricted by the Constitution to the determination of the questions of law arising upon the record. Our authority does not extend

to re-examination of facts which have been tried by the jury under instructions correctly defining the legal rights of parties. Parsons v. Bedford, 3 Pet. 446; 21 How. 167; Insurance Co. v. Folsom, 18 Wall. 249.

It is, perhaps, proper to refer to one other point suggested in the elaborate brief of counsel for the company. Our attention is called to section 4281 of the Revised Statutes, which declares that "if any shipper of platina, gold, gold dust, coins, jewelry, * * * trinkets, ** * * silk in a manufactured or unmanufactured form, whether wrought up or not wrought up with any other material, furs or laces, or any of them, contained in any parcel, package or bundle, shall lade the same as freight or baggage on any vessel, without, at the time of such lading, giving to the master, clerk, agent or owner of such vessel receiving the same a written notice of the true character and value thereof, and having the same entered on the bill of lading therefor, the master and owner of such vessel shall not be liable as carriers thereof in any form or manner; nor shall any such master or owner be liable for any of such goods beyond the value and according to the character thereof, so notified and entered."

It is sufficient to say that that section has no application whatever to this case. It has reference alone to the liability of carriers by water who transport goods and merchandise of the kind designated. It has no reference to carriers by land, and does not assume to declare or restrict their liability for the baggage of passengers.

The judgment is affirmed.

FIELD, J. I dissent from the judgment of the court in this case. I do not think that two hundred and seventy-five yards of lace, claimed by the owner to be worth seventy-five thousand dollars, and found by the jury to be of the value of ten thousand dollars, can, as a matter of law, be properly considered as baggage of a passenger, for the loss of which the railroad company, in the absence of any special agreement, should be held liable; and I am authorized to state that Mr. Justice Miller and Mr. Justice Strong concur in this view.

VALIDITY OF COVENANT WAIVING EXEMPTION.

IOWA SUPREME COURT, OCTOBER 22, 1879.

FEJAVARY V. BROESCH.

A lessee covenanted in a lease of a farm that the rents therefrom agreed to be paid "whether due or to become due, shall be a perpetual lien on any and all the crops raised on the farm and on any and all the cattle, etc., kept on the premises, etc., whether the same be exempt from execution or not.". Held, that the covenant was valid, and created a lien upon exempt property named therein.

AP

PPEAL by plaintiff from an order discharging the levy of an attachment.

The defendant, on the ninth day of September, 1876, leased of the plaintiff a certain farm, for the term of six years, from March 1, 1877, and agreed to pay as rent therefor the sum of $900 yearly, payable in equal semiannual installments, on the first day of February and the last day of November of each year. The defendant also agreed in the contract of lease to pay all the taxes levied upon the demised property during the term. The lease was in duplicate, was signed by both parties, acknowledged by them, and afterward placed on record. The lease, in addition to the usual covenants and agreements, contained the following clause: "And the said second party, in consideration of this lease, and the covenants herein contained, on the part of the said first party, hereby covenants and agrees to pay the said

first party the aforesaid yearly rent of $900, and taxes, in manner and form hereinbefore specified; hereby covenanting that said rents, whether due or to become due, shall be a perpetual lien on any and all the crops raised on the farm, and on any and all the cattle, hogs and pigs kept upon the premises, and belonging to said second party, whether the same be exempt from execution or not."

In this petition the plaintiff asked for a writ of attachment, to be levied on "all the crops raised on the said premises, and any and all the cattle, hogs and pigs kept upon said premises, and belonging to said defendant, whether the same be exempt from execution or not."

The sheriff made the levy accordingly. The defendant claimed the property attached to be exempt from execution, and moved the court to discharge the levy, which was done.

Geo. E. Hubbell and Brannan & Jayne, for appelJant.

No appearance for appellee.

SEEVERS, J. It has been held that the waiver of the benefit of the exemption laws, in a promissory note, was against public policy and void. Curtis v. O'Brien et al., 20 Iowa, 376. Does the case at bar come within the rule established in that case? We think not. In the cited case the contract was executory, and this court refused to enforce it because such a waiver is not recognized by statute, and was against public policy: but the statute does recognize the validity of a mortgage on property which is exempt from execution. The validity of such a mortgage has never been doubted, nor is it material that the property mortgaged was not in existence at the time it was executed. Whatever doubts there may have been on this subject, were settled in this State in Scharfenburg v. Bishop, 35 Iowa, 60.

The same principle was recognized in Brown v. Allen, id. 306. Technically, it is said the instrument in this case cannot be regarded as a mortgage, because it does not contain a grant or conveyance of the property; but clearly, it creates a lien or equitable charge, and the right of a party to execute it, and its validity must depend on the same principle as a mortgage. What does it matter what this instrument is called? The substantial right created is the same as a mortgage. Why may not the one be executed as well as the other? The validity of the lien should be recognized in the one case as in the other. Both may be executed by a party capable of contracting on a sufficient consideration, and for a lawful purpose. There is no essential difference between a mortgage and the instrument in question, unless it be in the mode of enforcement; but this does not touch or affect the question of power or validity of either instrument when executed. Such instruments as that in the present case have been upheld in Everman & Co. v. Robb, 52 Miss. 653; McCaffrey v. Wodin, 65 N. Y. 459; and Butt v. Ellett, 19 Wall. 545. The motion to discharge the property was not based on the ground that the plaintiff had not proceeded in the proper manner. It cannot be made here for the first time. We must not be understood as intimating it would have prevailed if the objection had been made below.