the power to limit liability rests on public policy. At common law, if property was lost or injured while in the hands of the carrier, the burden of proof was on the carrier to show the existence of such circumstances as were sufficient to excuse him from liability. Such is still the general rule, but when a special contract is entered into between the shipper and the carrier, the contract takes the place of the common-law rule, and fixes the liability of the carrier.

In the case at bar, Raiordon shipped a car-load of horses, eighteen in all, over the railroad of the defendant from Walkersville, Maryland, to Philadelphia. The bill of lading provided that the shipper should "send a proper person or persons in charge of said stock, and assume all risks of damage and injury to, delay, depreciation, and escape of, said stock while in transit, releasing said company and other carriers from all claims or demands therefor, except when proved to have occurred through gross negligence." The plaintiff, in accordance with his undertaking to send a proper person in charge of the stock, went himself upon the train with it, and, as he testified on the trial, went to the car in which his horses were every time the train stopped, and looked into it, but saw nothing to attract his attention. When the train arrived in Philadelphia, one of the horses was found dead in the car, and this action was brought to recover its value from the railroad company. The plaintiff showed that he shipped the horses, eighteen in number, for Philadelphia, and that on the arrival of the train. one of them was dead; but he did not show whether the horse died from disease or fright, or injuries received in the course of the transportation, nor was it alleged that any accident happened to the train, or the car in which the plaintiff's horses were, while on the journey. The defendant, in view of this state of the evidence, offered the bill of lading, and rested. The court was then asked to charge the jury "that under the terms of the bill of landing their verdict should be for the defendant." This instruction was refused, and then a binding instruction to find in favor of the plaintiff for the value of the horse was given. The learned judge did not place his reasons for this instruction upon the record.

As the right of the carrier to limit his liability is well settled in Pennsylvania, we are left to conjecture that the instruction was induced by an opinion that there was a legal presumption of negligence against the defendant that shifted the burden of proof, and put upon the carrier the duty of showing that the

death of the horse was not due to the negligence of its agents or servants.

The rule in relation to the presumption of negligence against a carrier is well stated in Laing v. Colder, 8 Pa. St. 479: "Now, the mere happening of an injurious accident raises, prima facie, a presumption of neglect, and throws upon the carrier the onus of showing that it did not exist." But the word "accident" must be understood as referring to such happenings as the exercise of proper care by the carrier could have prevented. The machinery for transportation is under his exclusive management and control, and he contracts for its sufficiency, and for the skill and fidelity of his servants in charge of it.

If, for any reason, an "injurious accident" happens to or by reason of that which the carrier provides for the transportation, the law, which imposes the exercise of the utmost care upon him, presumes the accident to be due to the want of that care, and puts upon him the duty of successfully relieving himself from that presumption. But when the fact of an “injurious accident" is not shown to exist, the presumption which arises from it cannot be invoked by a plaintiff. The contract of the carrier does not insure against death generally, but only as it may be the result of an injurious accident in the course of the carriage. A passenger may die while in his seat in a car from disease, or from his own act, just as he might die in his own house from the same cause; but we have never heard it alleged that the carrier was liable in damages because of a death so happening, nor that it was his duty to show affirmatively that the death was due to causes over which he had no control. Death from natural causes can hardly be called an accident, but if it was otherwise, yet there is a very broad distinction between the case of its coming to a passenger as an individual by reason of circumstances and conditions that are personal and peculiar to him, and the case of its coming to a passenger as such by reason of accident to, or on account of, the means of transportation employed by the carrier, whether in motion or not. In the former class of cases no presumption of negligence can arise, for the facts furnish no foundation for it. In the latter there is a presumption, not conclusive, but prima facie, on which the plaintiff may rest, and which the carrier must overcome.

Applying this distinction to the case we have in hand, and its disposition is easy. The testimony of the plaintiff showed.

the happening of no injurious accident to the train or car on which his horses were transported. It showed that he was personally in charge of them, and at every stop examining the car, and that he saw nothing to attract his attention. It showed that the death of his horse on the journey was wholly unknown to him until he reached this city, and he does not attempt to assign a cause for it. This testimony left no ground for the legal presumption that arises from the happening of an injurious accident, and left the burden of proof, where it rests in ordinary cases, on the plaintiff. When, therefore, it appeared by the terms of the bill of lading that the liability of the carrier was limited to such injuries as were the result of gross negligence on its part, and the plaintiff made no attempt to show the happening of an accident or the negligence of the carrier, the court should have given the binding instruction asked by defendant's counsel. In fact, it may well be doubted whether the introduction of the bill of lading was at all necessary. The plaintiff's evidence left him no fact from which the legal presumption could arise, and no proof to take its place from which negligence in fact could properly be found by the jury. This was, therefore, a case in which a compulsory nonsuit would have been proper.

Judgment reversed.

COMMON CARRIER CANNOT BY ANY SORT OF STIPULATION EXEMPT Hm. SELF FROM CONSEQUENCES OF HIS NEGLIGENCE, though he may, by special or express contract, or special exceptions fairly and understandingly made, limit his common-law liability: McFadden v. Missouri Pac. R'y Co., 1 Am. St. Rep. 721, and note 728. To the same effect is McFadden v. Missouri Pac. R'y Co., 92 Mo. 343.

CARRIER OF LIFE-STOCK, POWER TO LIMIT LIABILITY BY CONTRACT: Gulf. R. R. Co. v. Trawick, 2 Am. St. Rep. 494, and note 500.

CARRIER, CONTRACT LIMITING LIABILITY FOR NEGLIGENCE: Poucher ▼. New York etc. R. R. Co., 10 Am. Rep. 364, and note 366-378.

AM. ST. REP., VOL. IV.-43

INJUNCTION TO PREVENT SALE OF HOMESTEAD UNDER EXECUTION will be issued at the instance of a purchaser from the homesteader to prevent the cloud upon the title which would be caused by such sale.

HOMESTEAD EXEMPT FROM JUDGMENT LIEN.Land resided on by the head of a family, and of less value than the statutory homestead amount, is his homestead, and exempt from a judgment lien.

HOMESTEAD, IF WITHIN THE STATUTORY ALLOWANCE, is exempt from the lien of any judgment against the owner thereof, and he may convey it free from any encumbrance.

HOMESTEAD EXEMPT FROM JUDGMENT LIEN.

Land resided on by the head of a family, and within the value fixed by the homestead law of South Carolina, is his homestead, though he has not made or filed any homestead declaration, and as such it is exempt from levy and sale under execution, and not subject to a judgment lien, and may be mortgaged or sold by the judgment debtor either before or after it is laid off to him free from the lien of the judgment.

HOMESTEAD. JUDGMENT DEBTOR CANNOT CLAIM LAND AS HOMESTEAD and exempt from a judgment lien after he has conveyed it to another, and has no interest of any kind in it.

J. E. McDonald, for the appellants.

H. N. Obear, for the respondents.

MCIVER, J. These two cases, though heard together here, are of such a different character as to require that they shall be considered separately.

The facts out of which the controversy in the first-named case arises are substantially as follows: On June 29, 1882, the

defendant, John D. McCarley, caused to be filed in the office of the clerk of the court of common pleas for Fairfield County a transcript of a judgment previously obtained by him in a trial justice's court against William W. Ketchin, on a cause of action arising since the adoption of the constitutional amendment of 1880 relating to homesteads, and the act of the general assembly passed in pursuance thereof. At that time William W. Ketchin was the head of a family residing on the land which is the subject-matter of this suit, the value whereof was, and still is, seven hundred dollars; and at the time of the recovery of said judgment he had no other lands, nor has he at any time subsequently owned any other land.

On May 18, 1883, while still occupying the said land as a family residence, the said William W. Ketchin conveyed the same to Harriet M. Ketchin, the plaintiff. About January 1, 1884, the said William W. Ketchin and his family moved off said land to a house and lot in the town of Winnsborough, which had been bought by his wife, the plaintiff herein, where he and his family now reside, only three hundred dollars of the purchase-money of the Winnsborough house and lot having been paid. On December 9, 1884, the defendant levied on the tract of land first above mentioned, under the execution issued to enforce his judgment above referred to, and proposes to sell the same in satisfaction of said judgment. Neither at the date of the conveyance by the said William W. Ketchin to the plaintiff, nor at any time previous, had he claimed, or had assigned or set apart to him, any homestead in or out of said tract of land, or any part thereof. The plaintiff brought this action to enjoin the proposed sale of the said tract of land, upon the ground that the land in question is not subject to levy and sale under said judgment. The circuit judge held otherwise, and rendered judgment dismissing the complaint. From this judgment plaintiff appeals, upon the several grounds set out in the record, which need not be repeated here.

Before proceeding to a consideration of the case upon its merits, it will be necessary first to dispose of a preliminary objection as to the form of proceeding. Respondent contends that in a case like this there is no ground for an injunction, because, if the appellant's theory be correct, that the judgment has no lien on the land, then the attempted levy and sale will amount to nothing, and the plaintiff's title cannot be affected thereby. In the first place, it will be observed that it does not appear that this point was ever presented to or