*114 By the Court,
Nelson, J.This case is peculiar in many 0f jts featUres, and must be determined by a recurrence to some °f the general and fundamental principles which gov-era actions of this kind. The rule of the common law in rela- . tion to common carriers has been frequently pronounced a rigorous one, and its vindication by Lord Holt affords abundant evidence, if any were wanting, of the truth of the observation. He says, in Lane v. Colton, 1 Vin. Abr. 219, though one máy think it a hard case, that a poor carrier that is robbed on the road without any manner of default in him, should be answerable for all the goods he takes, yet the inconveniency would be far more intolerable if it were not so, for it would be in his power to combine with robbers, or to pretend a robbery or some other accident, without a possibility of remedy to the party, and the law will not expose him to so great a temptation. • This reason, which I believe is the only one that has ever been given for the origin of the rule, and which probably had much foundation in fact in the early and rude age in which it must have been established, it is obvious at this day,is nearly as applicable to every person entrusted with the property of another as it is to the common carrier. In proportion, however, to the rigor of the liability, was exacted the compensation for it and the means of enforcing payment, which affords a sort of equivalent for the harshness of the rule. Accordingly we find it frequently laid down in actions of this kind as a fundamental proposition, that the common carrier is liable in respect to .his reward, and that the compensation should be in proportion to the risk. So strictly was this rule adhered to, that it was repeatedly decided by Lord Holt that the hackney coachman was not liable for the travelling trunk of the passenger which was lost, unless a distinct price had been paid for the trunk as well as for the person ; and that where it was the custom of the stage coach for passengers to pay for baggage above, a certain weight, the coachman was responsible only for the loss of goods beyond such weight. 1 Vin. Abr. 220, and cases there cited. So, in the analogous case of the innkeeper, if a guest stops at an inn, and departs for a few days leaving his goods, if they are stolen during his absence, the landlord is not liable as innkeeper ; for, at the *115rime of the loss, the owner was not his guest, and he had no benefit from the keeping of the goods. Cro. Jac. 188. 1 Vin. Abr. 225. It has since been determined that the stage coachsman is responsible for the baggage of the passenger, though no distinct price was paid for it; upon the ground, however, still consistent with the principle of the above cases, to wit, that the reward for carrying the same was included in the fare for the passenger. 1 Wheaton's Selwyn, 301, n. 1.
Now, upon the ground that the defendants in this case have received no compensation or reward from the plaintiffs or any other person for the transportation or risk of the money in question, and that they were deprived of such reward by the unfair dealing of the agent of the plaintiffs with the defendants, I am of opinion the plaintiffs cannot recover, and that they were properly nonsuited upon the trial. As a general rule, where there has been no qualified acceptance of goods by special agreement, or where an agreement cannot be inferred from notice, the carrier is bound to make inquiry as to the value of the bos or article received, and the owner must answer truly at his peril; and if such inquiries are not made, and it is received at such price for transportation as is asked with reference to its bulk, weight or external appearance, the carrier is responsible for the loss, whatever may be its value. If he has given general notice that he will not be liable over a certain amount, unless the value is made known to him at the time of delivery and a premium for insurance paid, such notice, if brought home to the knowledge of the owner, (and courts and juries are liberal in inferring such knowledge from the publication of the notice,) is as effectual in qualifying the acceptance of the goods as a special agreement, and the owner at his peril must disclose the value, and pay the premium. The carrier in such case is not bound to make the inquiry, and if the owner omits to make known the value, and does not therefore pay the premium at the time of the delivery, it is considered as dealing unfairly with the carrier, and he is liable only to the amount mentioned in his notice, or not at all, according to the terms of his notice. 1 Wheat. Sel. 305, 6, 8, and notes, 6 Com. Law R. 333. 4 Burr. 2298, 5 Com. L. R. 476. 8 Pick. 182. 11 Com. L. R. 243.
*116In this case no notice has been given by the defendants limiting their responsibility, and they are no doubt liable to the full value of the baggage of the passenger lost, or of the goods lost, which they have received without any special agreement qualifying'the risk for transportation. The defendants cannot succeed upon this ground. But in the absence of notice, if any means are used to conceal the value of the article, and thereby the owner avoids paying a reasonable compensation for the risk, this unfairness and its consequence to the defendants, upon the principles of common justice as well as those peculiar to this action, will exempt them from the responsibility; for such a result is alike due to the defendants, who have received no reward for the risk, and to the party who has been the cause of it by means of disingenuous and unfair dealing. Thus, where the plaintiff delivered to the carrier a box, telling him there was a book and tobacco in it, when it contained £100, and it was lost, he should not recover. It is true that in such a case a party did recover, though Rolle, Ch, J, considered it a cheat; but it is clear that at this day he could not recover. 4 Burr. 2301. So where a box in which there was a large sum of money was brought to -a carrier, who inquired its contents, and was answered it was filled with silk, upon which it -was taken and lost, it was held the owner could not recover. Ibid. So where a bag sealed was delivered to a carrier, and was said to contain £200, and a receipt was given for the same, when in fact it contained £400, and it was lost, the carrier was held answerable only for the £200, as the reward extended no farther. 4 Burr. 2301. Selw. 305, n. These cases all proceed upon the ground that the carrier is deprived of his reward for the extra value of the article, and consequent extra risk incurred, by means of the unfair if not fraudulent conduct of the owner; and therefore the rigor of the common law rule is not applied to him, and he is only held responsible for the loss in case of gross negligence. If the defendants are to be made responsible to the plaintiffs through the medium and acts of their agent, who was employed to carry the money from New-Yorkto the bank, the plaintiffs also must be held responsible to the defendant for his conduct; the obligation *117must be reciprocal. Instead of committing the several pack- , ages of money to the captain, which of themselves generally indicate their value, and in this case would have done so, as Ihe figures (by which I understand the quantity of money in each package) could be seen upon them, and thereby enable the captain to exact a reasonable compensation for the risk, and apprise him of the necessity of greater care and caution in the safe conveyance of the money, which he naturally would bestow in proportion to the value, the agent of the plaintiffs put them into his trunk and committed it to the captain as his baggage, affording no other indication of the value of its contents than that it was a trank of importance. This was enough to attract the attention of the felon who might be standing by to its contents, but certainly was not calculated to afford information to the captain of the extraordinary character and value of those contents. The captain might understand he had a costly wardrobe and other necessaries and conveniences for travelling of great value, but not that the trunk contained $11,000 in bank bills, which the traveller was carrying for hire or friendship, and not as travelling expenses.
It may be difficult to define with technical precision what may legitimately be included in the term baggage, as used in connection with travelling in public conveyances: but it may be safely asserted that money, except what may be carried for the expenses of travelling, is not thus included, and especially a sum like the present, which was taken for the mere purpose of transportation. We have already seen, that formerly so strictly was the rule that the carrier was liable only in respect to the reward adhered to, that he was not held liable for the loss of the baggage of the passenger unless a distinct price was paid for it. The law is now very properly altered, as a reasonable amount of baggage, by custom or the courtesy of the carrier, is considered as included in the fare for the person ; but courts ought not to permit this gratuity or custom to be abused, and under pretence of baggage to include articles not within the sense or meaning of the term, or within the object or intent of the indulgence of the carrier, and thereby defraud him of his just compensation, and subject him to *118unknown and illimitable hazards. If the amount of money in the trunk in this case is not fairly included under the term baggage, as' used in the connection we here find it, (and I cannot think it is,) then the conduct of the agent was a virtual concealment of that sum; his representation of his trunk and the contents as baggage was not a fair one, and was calculated to deceive the captain—and it would be a violation of first principles to permit the plaintiffs- to recover. The case of Miles v. Cattle et al. 19 Com. L. R. 219, in some respects resembles this .case. The plaintiff was going to L., and took a seat in a public conveyance. He had with him a bag labelled “ T. Miles, traveller,” containing clothes worth about £15. Before he started, G. delivered him a parcel containing a £50 bank note addressed to an attorney in L., which the plaintiff was desired to book at the defendants’ office, and to be forwarded by the defendants to L. The plaintiff, instead of doing so, put the parcel in his own. bag, intending to convey it to L. himself. If the parcel had been sent by the defendants, it would have cost 4s. Gd. The bag and contents were lost. The verdict was found for the £15, with leave to apply to increase it, on the facts in-the ■case, by adding the $50. The court denied the application, principally upon the ground that the plaintiff had no interest in the £50. But it was conceded by the court that the owner could not recover on the facts. Tindal, J. says, in violation of his trust, the plaintiff thought proper not to deliver the parcel to the defendants, but to deposit it in his own bag; thereby depriving the owner of any remedy he might have had against the defendant's, and the defendants of the sum they would otherwise have earned for the carriage of the parcel. In this case the president of the bank directed Phillips to commit the packages directly to the captain, and had he followed such directions, the captain would have been enabled to charge a reward for the carriage of the same, and the captain, or the defendants would have been responsible for its safety. His omission to follow the directions was a violation of his trust, for which the defendants are not accountable.
It was decided in Sewall, v. Allen et al. in the court of errors, 6 Wendell, 335, that the Dutchess and Orange Steam*119Boat Company, and the members thereof, were not liable for the loss of packages of bank bills entrusted to the captain of the boat, on the ground that the carriage of bank bills was not within the ordinary business of the company,and so far as the usage extended, it was a personal trust committed to the captain,who alone received the compensations or in other words, the company were neither by their charter or usage underit, common carriers of bank bills. From the facts appearing in that case, I presume the principle here decided by the highest judicial tribunal in the stale, would be equally applicable to this company, though from the direction the cause took upon the trial, facts sufficient do not appear to raise the question. If so, it seems to me impossible to maintain the proposition that the defendants would be holden responsible for the loss of an article in the trunk of a passenger, which in no sense of the term can be considered a part of the baggage of the passenger, and for the transportation of which no compensation is received by the company, when confessedly they would not be accountable for the same article, if it had been committed directly to the care of the captain, and a reasonable reward paid him for transportation. If it is said the difference between the cases consists in this, that in the one case it is a part of the baggage of the passenger, the carrying of which is within the ordinary business of the company, and for which they receive the reward, and in the other, it is a private transaction between the owner and the captain; the answer, I think is, that putting the article in the trunk, does not make it baggage. If it is included within that term, it is as much baggage when distinctly committed to the care of the captain as when in the trunk ; the place in which it is, cannot in this instance, at least, vary the character of the article, or the transaction : the object is the transportation of the money, without reference to a connection with the person of the passenger.
Having come to the conclusion upon what I view as the _ merits and principle of the case, that the plaintiffs cannot recover, it is unimportant to examine any other question discussed upon the argument.
Motion for new trial denied.