Gebhard v. The Canada Southern Railway Company. ada, but was to be performed in the State of New York, the place of payment being the place of performance; and a discharge of the obligation, which derives its vitality solely from the authority of a foreign sovereignty, is of no more effect than would be the case if New York were the place where the contract was made. One of the most common instances, in illustration of the rule, is where the defence of usury is interposed, in an action brought here upon an obligation made in a foreign State, and bearing a higher rate of interest than is permitted by the laws of that State. When the obligation is payable here, the cases all agree, that the usury laws of the foreign State have no application. Another class of cases, more analogous to the present, because they involve the effect of an ex post facto discharge of the obligation, is where a discharge in bankruptcy has been obtained under the laws of the State where the contract was made. Such a discharge is not a defence when the place of performance of the obligation is in a different State. The question has frequently been considered by the Supreme Court of the United States, and, although generally discussed in connection with constitutional questions, it has been ruled, with the concurrence of all the judges, that, irrespective of other considerations, the discharge is inoperative, when obtained in a different State from that where the debt was payable, because the contract and its obligation cannot be affected by the legislation of other States. (See opinions of Grier, Daniel, and Woodbury, JJ., in Cook v. Moffat, 5 How., 295.) The decision of the present case may properly rest upon this ground alone; but, if the obligations in suit were Canadian contracts, the defence would be untenable. The Act of the Canadian Parliament is an attempt to impair and destroy the obligation of a contract. Undoubtedly, it was supposed, in view of the financial embarrassments of the defendant, that the new obligations, authorized by the Act, would be acceptable to the holders of the original bonds, and would be of equal, if not of greater, value. But, the plaintiff was entitled to the money due by the terms of his bonds, and any legisla Gebhard v. The Canada Southern Railway Company. tive Act which attempts to deprive him of it, by compelling him to accept something different, violates fundamental principles of justice and is, in effect, an arbitrary confiscation of the plaintiff's property. Although, by the theory of the British Constitution, Parliament is omnipotent, the jurists and statesmen of England have denied its right to transcend the boundaries which confine the discretion of Parliament within the ancient landmarks. When it was proposed, by Act of Parliament, to impair vested property rights, by remodelling the charter of the East India Company, in 1783, the attempt was denounced by Lord Thurlow and Mr. Pitt, "as a total subversion of the law and constitution of the country;" and some of the greatest jurists and judges of England have declared that an Act of Parliament against common right and natural equity is void. (Angell and Ames on Corporations, § 767.) In our own country, we regard such Acts as so subversive of natural rights as not to be within the authority delegated to the legislative department of the Government. It is sometimes supposed, that, because the Constitution of the United States prohibits the States from passing such laws, and is silent as to the United States, the authority to pass them resides in Congress, by implication. This is an erroneous assumption. As is said by Nelson, J., in The People v. Morris, (13 Wend., 328 :) "It is now considered an universal and fundamental proposition, in every well regulated and properly administered Government, whether embodied in a constitutional form or not, that private property cannot be taken for strictly private purposes at all, nor for public without a just compensation; and that the obligation of contracts cannot be abrogated or essentially impaired. These and other vested rights of the citizen are held sacred and inviolable, even against the plenitude of power of the legislative department." The same views are expressed by the learned author of Cooley's Constitutional Limitations, (p. 176,) as follows: "However proper and prudent it may be expressly to prohibit those things which are not understood to be within the proper attributes of legisla Gebhard v. The Canada Southern Railway Company. tive power, such prohibition can never be regarded as essential, when the extent of the power apportioned to the legislative department is found, upon examination, not to be broad enough to cover the obnoxious authority. The absence of such prohibition cannot, by implication, confer power." A contract is property. To destroy it partially is to take it, and to do this by arbitrary legislative action is to do it without. due process of law. (Sinking Fund Cases, 99 U. S., 746, 747.) If any of our own States had passed such an Act as the one under consideration, it would have been the duty of the Courts of that State to treat it as an unlawful exercise of power; and, certainly, it cannot be expected that this Court will tolerate legislation by a foreign State, which it would not sanction if passed here, and which, if allowed to operate, would seriously prejudice the rights of a citizen of this State. Comity can ask no recognition of such unjust foreign legislation; and the case falls under the qualification of the general rule, which prescribes, that, when the foreign law is repugnant to the fundamental principles of the lex fori, it will be ignored. Judgment is ordered for the plaintiff. John M. Bowers, for the plaintiff. Joseph H. Choate, for the defendant. Wertheimer v. The Pennsylvania Railroad Company. LEOPOLD WERTHEIMER AND OTHERS vs. THE PENNSYLVANIA RAILROAD COMPANY. The defendant, a railroad company, received from W. goods for transportation to Pittsburgh, giving W. a bill of lading containing a condition that the company should not be responsible for loss or damage by fire, unless it could be shown that such damage or loss occurred through the negligence or default of the agents of the company. On the arrival at Pittsburgh of the car containing the goods, a mob took possession of it, and continued to hold it against the military power of the State, and ultimately fired and destroyed the goods; Held, that W. must prove that the loss by fire arose from the negligence of the defendant or its agents, and that, in the absence of such proof, the defendant was not liable for the value of the goods. (Before WALLACE, J., Southern District of New York, January 24th, 1880.) WALLACE, J. On or about July 17th, 1877, the defendant received from the plaintiffs, at the city of New York, for transportation to Pittsburgh, Penn., goods of the value of $1,710. At the time of receiving the goods the defendant delivered to the plaintiffs a bill of lading, whereby it agreed to transport the goods, subject to several conditions, among which was one that the company should not be responsible for loss or damage by fire, unless it could be shown that such damage or loss occurred through the negligence or default of the agents of the company. On the 17th of July the car containing the goods was dispatched by the defendant from Jersey City for Pittsburgh, reaching Pittsburgh about one o'clock A. M., July 20th, at which time a mob took possession of the defendant's property, including the car in question, and held possession until July 22d, when troops, ordered by the Governor of the State to aid the sheriff in re-taking the property, came in conflict with the mob, failed to dispossess the mob, and the mob fired the property and thereby destroyed it. Wertheimer v. The Pennsylvania Railroad Company. The delivery of the bill of lading by the defendant, and its acceptance by the plaintiffs at the time of the delivery of the goods, must be deemed to constitute a contract between the parties, with the conditions contained in the bill of lading. (York Co. v. Central Railroad Co., 3 Wallace, 107; Bank of Kentucky v. Adams Express Co., 93 U. S., 174; Grace v. Adams, 100 Mass., 505; McMillan v. Michigan Southern & N. I. R. R. Co., 16 Michigan, 79; Hopkins v. Westcott, 6· Blatchf. C. C. R., 64; Kirkland v. Dinsmore, 62 N. Y., 171.) These cases all hold, that the shipper who accepts the bill of lading cannot be heard to allege ignorance of its terms. It is unnecessary to refer to the cases where, from the peculiar circumstances attending the acceptance of the receipt, assent to its terms was held not to be implied, as the present case is the ordinary one, where no peculiar circumstances are shown. Neither are the cases in point which decide that assent on the part of the shipper will not be implied, to any conditions which do not appear on the face of the bill of lading. Such was the case in Ayres v. The Western Railroad Corporation, (14 Blatchf. C. C. R., 9,) which was decided upon the authority of Railroad Co. v. Manufacturing Co., (16 Wall., 318.) The effect of the contract made between the parties was to impose upon the plaintiffs the burden of proving that the loss of the goods by fire arose from the negligence of the defendant or its agents. In Clark v. Barnwell, (12 How., 272) Mr. Justice Nelson says, that, although the injury may have been occasioned by one of the excepted causes in the bill of lading, yet still the owners of the vessel are responsible if the injury "might have been avoided by the exercise of reasonable skill and attention on the part of the persons employed in the conveyance of the goods." But, the onus probandi then becomes shifted upon the shipper, to show the negli gence. In Transportation Co. v. Downer, (11 Wallace, 129.) the judgment of the Court below was reversed, because the jury were instructed that it was incumbent upon the defendant, the carrier, to bring itself within the exception, by show |