of the service of process from the State court, I see no reason why it should not operate equally in favor of process from this court. And if a foreign corporation may appear after the issuing of process and defend a suit (of which no doubt was ever entertained), it is difficult to see why it may not agree beforehand that it will accept service of all process that may be served upon it. Authorities considered in this opinion: 14 Pet. 519; 8 Wall. 168; 1 Black, 286; 12 Wall. 81; 1 Blath. 628; 2 Biss. 26; 4 Blatch. 120. Jurisdiction sustained. English Court of Appeals. JANUARY 14, 1878. BERGHEIM vs. GREAT EASTERN RAILWAY CO. LIABILITY OF CARRIER OF PASSENGERS FOR LUGGAGE.-The liability of railway companies as common carriers does not apply in the case of luggage over which they have not absolute control. Plaintiff went to defendant's station some time before the train started. A porter, by plaintiff's direction, placed his bag in the carriage. Plaintiff went away for a short time, and on his return the bag was gone. In an action to recover the value of the bag, the jury found that neither defendant nor plaintiff had been guilty of negligence. Held: that defendant was not liable as a common carrier, and therefore was entitled to judgment. Appeal from the Common Pleas Division. The action was brought to recover the value of a traveling bag belonging to the plaintiff which had been lost from a passenger carriage on the defendants' railway. The plaintiff, who was going to Yarmouth by the Great Eastern Railway, arrived at the defendants' station at Shoreditch a considerable time before the train started. He directed a porter in the defendants' service to put his traveling bag on the seat of the carriage in which he intended to travel. The plaintiff asked the porter whether the bag would be safe, and the porter replied that it would be safe, and that he would be there himself until the train started. The plaintiff then went away to the refreshment room, and on his return the bag was missing and it never was found. At the trial before MANISTY, J., the jury found that the carriage was a proper place in which to put the bag; that the porter was acting in the scope of his employment in putting the bag into the carriage; that the porter had received the bag as the defendants' servant; that no felony had been committed by the servants of the defendants, and that neither the plaintiff nor the defendants had been guilty of negligence. On these findings MANISTY, J., directed judgment to be entered for the defendants, and the plaintiff appealed. Grantham, Q. C., and R. E. Webster, for plaintiff. COTTON, L. J. (After stating the facts.) It has been found that neither the company nor the plaintiff was guilty of negligence. The company, therefore, can not be held liable, unlsss they are to be held to have undertaken the liability of common carriers in respect to the bag, the loss of which is the cause of complaint in this action. The liability of a common carrier is, as compared with that of other bailees, exceptional. He is answerable for the loss of goods intrusted to him as such, though the loss be in no way caused by any default on his part. He is considered as having contracted to insure that is to say, as having contracted to carry and deliver safely and securely (the act of God and of the Queen's enemies excepted), the goods of which he, as common carrier, is bailee. The reason why the law implied that this is his contract was that the carrier had by himself or his servants during the bailment, at times and in places where he could not even be supervised, the exclusive control and care of the goods intrusted to him by the owner, and that the law considered it necessary, in order to prevent frauds, to impose on those who contracted to carry goods as common carriers the obligation also to undertake to insure their safety. The rule and the reason given are thus stated by HOLT, C. J., in Coggs vs. Bernard (Ld. Raym. 909): “The law charges this person thus intrusted to carry goods against all events but acts of God and of the enemies of the King. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point." This rule, though stringent, was apparently founded on good sense. But if this implication had been applied to goods of which, in consequence of the act of the owner, the carrier had not during their carriage the exclusive or absolute control or care, it would in our opinion have been unreasonable. So to apply it would have been to extend a contract of insurance, which the law had originally implied because the carrier had the exclusive, or at least absolute, control and care of the goods, to goods as to which his position was entirely different. When the reason for raising an implied contract does not exist, the implication ought not to be made, and in none of the earlier cases which dealt with and established the common carriers' liability was a contract of insurance implied in respect of goods over which he had not absolute control. In our opinion, as regards goods in such a position, no such contract ought to be implied. The next question, then, is whether it can be said that goods which, at the request of a passenger, are put into the carriage in which he travels, are under the control and care of the company to such an extent that a contract of insurance on the part of the company can be implied. They are put into that carriage because they may be required by the passenger during the journey, or because he wishes to take special care of them, and to have them under his eye; or because he desires to take them away with him as soon as the train stops. At all events they are put in that carriage at the request or with the consent of the passenger in order that he may have, or in such manner that he has, some control over them during the transit. While the train is in motion the company can exercise no control over the goods as distinct from the control they have over the train. There may be in the same carriage with the owner of the goods other persons who, by reason of the passenger's own negligence, may be tempted or enabled to injure the goods or to deprive the owner of them. If the company are in respect of the goods liable as common carriers, though this loss may happen by no fault of theirs, they must nevertheless make good the loss; and even if the loss happens by reason of the passenger's negligence, the company will be liable unless they can fulfill the difficult burden of proving that the negligence of the passenger occasioned the loss. This would not, in our opinion, be reasonable. But it was urged that, at least when the owner is reasonably absent from the carriage at stations during the journey, the company must be liable as common carriers for the goods of the passenger, and that the contract of the company may be considered as a contract of insurance with an exception that while the train is in motion and the owner in the carriage with some charge of the goods, there should be a different liability. But this would be implying a new form of contract entirely different from the contract of insurance implied in the case of a common carrier. Again it is said that the company have been held to be common carriers of passengers' luggage which is put into the van or other place appropriate for the purpose, and from this it is argued that the company, being common carriers of some passengers' luggage carried in a passenger train, are so of all such luggage carried in the train. But the real question is whether, as regards the particular goods, there is an implied contract of insurance. This must depend on the circumstances under which these goods are carried, and though the company do receive some passengers' luggage carried by a passenger train under circumstances from which a contract of insurance can be implied, it does not follow that this is the case as regards articles which, though carried by the same train, are received and carried under different circumstances. As regards that por tion of a passenger's luggage which is, at his request or with his consent, placed in the same carriage in which he is to travel, we think, for the reasons given above, that there is no sufficient ground upon which a court can properly make a presumption that the company carry it under a liability or implied contract to carry it safely at all hazards, the act of God and of the Queen's enemies alone excepted. But then it is urged that, if the company are not liable to the extent insisted on, they are not in any way liable for the luggage of a passenger placed at his request and with their assent in the carriage in which he is to travel, and that such an entire absence of liability is unreasonable, and therefore the only reasonable conclusion is to imply a common carrier's liability. But, in our opinion, it can not properly be said that the company, if not liable as common carriers, incur no liability. The company undertake to carry the passenger; they equally undertake to carry his goods, which, with their consent, are placed with him in the carriage in which he is. And they are not gratuitous bailees of those goods, as they receive them into their carriages in consideration of the passenger paying his fare. The company therefore, must, according to ordinary principles, be held liable for the loss or injury caused by their negligence in respect of those goods as bailees for hire and contractors to carry. The company have in fact the same liability with respect to the carriage of those goods as they have with respect to the carriage of the passenger himself. This is our view on principle. It remains for us to consider the decisions bearing on this question. Cohen vs. SouthEastern Railway Co. (L. R., 1 Ex. Div. 217), is the only case cited which came before a court of error. The question in that case was not as to luggage carried by the passenger in the carriage with him; and all that the court decided was that the company were liable for the loss of passenger's luggage carried in the same train but not in the same carriage with him, when occasioned by the negligence of the servants of the company. The plaintiff also relies on Robinson vs. Dunmore. The decision in that case is not in point; for the defendant had expressly contracted that the goods |