ERROR to the Circuit Court for the District of Nebraska. The case, which involved two distinct subjects, one of jurisdiction and the other of merits, was thus:
I. As to the matter of jurisdiction. This again involved two different points.
An act of 1847 provided, that in all cases of Federal character and jurisdiction commenced in the Superior Courts of the Territory of Florida, and the Court of Appeals of that Territory, after the 3d of March, 1845, 'in which judgments or decrees were rendered, or which are claimed to have been since pending there, in the records and proceedings thereof, and the judgment and decrees therein, are hereby transferred to the District Court of the United States for the District of Florida.' The provisions of the act were made at the time applicable to cases pending in the then new State of Michigan, and by an act of 1848, were afterwards extended to courts of the then new State of Iowa. Neither Florida, Michigan, nor Iowa were, at the time of becoming States, attached to any judicial circuit of the United States.
This last act, the act of 1848, declares that the provisions of the act of 1847 shall apply to all cases which may be pending in the Supreme, or other Superior Court of any Territory of the United States which may be admitted as a State, at the time of its admission. With these acts in force, Kountze Brothers brought suit in a District Court of the Territory of Nebraska against the United States Express Company. The declaration described the plaintiffs as 'an association of persons not incorporated, formed for the purpose of carrying on the banking business at Omaha, Nebraska, and who were, at the time the cause of action arose, and still were engaged in said business at Omaha,' and described the defendants as 'a foreign corporation formed under and created by the laws of the State of New York.'
The answer and a replication being filed prior to the 3d of July, 1867, the proceedings while thus in fieri, were on that day Nebraska having now become a State of the Union-brought and filed by the plaintiffs in the Circuit Court of the United States for the District of Nebraska.
Nebraska, as a Territory, was, at the time of her admission to the Union, attached to the eighth judicial circuit of the United States.
II. As to the merits. The suit was brought to recover from the Express Company, as common carriers, the value of certain gold dust which they had undertaken to forward from Omaha to Philadelphia.
The dust had been delivered to the company, for the transportation just mentioned, on the 29th of September, 1864, and was one of regular series of consignments, running through a term of more than eighteen months. The receipt given for it was the ordinary receipt of the company. It set forth, that it had been expressly agreed, that the company should not be liable 'for any loss or damage by fire, the acts of God, or the enemies of the government, mobs, riots, insurrections, or pirates, or from any of the dangers incident to a time of war.'
There were two routes used by the company to convey their property. One was across the State of Iowa, and the other to St. Joseph, Missouri, and thence across that State by the Hannibal Railroad. The latter route was the most expeditious, but the former was the safest, as the rebellion was in progress at this time, and Missouri, although adhering to the Union, was infested with predatory rebels, as well as with more regular bodies of the Confederate troops.
The gold dust was conveyed by the St. Joseph route, and the company was robbed of it, by a band of armed men, while it was in transit across the State.
On the trial, the plaintiffs testified that they gave notice to the agent of the company not to send their gold dust by the St. Joseph route; though there was testimony, also, that tended to prove that this notice was not until after the robbery of this particular gold.
No exception was taken, on the trial, to the admission or rejection of evidence, and the only subject for review here was the charge given by the court to the jury. The court instructed the jury only on a single point, that of negligence. The jury were told substantially that, although the contract was legally sufficient to restrict the liability of the defendant as a common carrier, yet, if the defendant was guilty of actual negligence, it was responsible. and that it was chargeable with negligence, unless it exercised the care and prudence of a prudent man in his own affairs. The Express Company requested the court to charge the jury that it was not liable, unless grossly negligent.