act of God, or the public enemies: Coggs v. Bernard, 2 Ld. Raym. 909, 918; Rushforth v. Hadfield, 6 East, 525; 2 Bl. Coni. 67. And if he refused to carry goods, having the convenience to do so, he would have been liable to an action, unless he had reasonable ground for the refusal; Jackson v. Rogers, 2 Show. 129;1 1 Id. 104, 105; 1 Saund. 312, n. 2;3 Batson v. Donovan, 4 Barn. & Ald. 32, per Holroyd, J.; Edwards v. Sherratt, 1 East, 604. It is not necessary that there should be a special agreement for hire, to entitle the carrier to recover a compensation, or to render him liable in the event of a loss, for in the absence of an express contract, he may have an action of assumpsit founded on a quantum meruit for the recovery of freight: 2 Show. 129; Moore v. Wilson, 1 T. R. 660; 5 Barn. & Ald., per Abbott, C. J., 353.o

6

Thus we have seen, that in order to constitute a common carrier at common law, and to impose the liabilities incident to that character, it is necessary that hire should have been paid, or that the right to demand it, exists: 2 Kent's Com. 464; 1 Salk. 282. If a man undertake to carry goods, without any compensation for his trouble, he will only be responsible for a loss, happening by the negligence of himself or his agents. In the case at bar, the plaintiffs in error are not sought to be charged for a loss happening on a gratuitous bailment-so that it is immaterial what may have been the proof as to the manner of the loss, if the plaintiffs (Jones and Horner) were excluded by the contract of the defendants with Hammond and Donaldson, from receiving compensation, they can not be made liable as carriers.

The case of Bignold et al. v. Waterhouse et al., 1 Mau. & Sel. 255, is not altogether unlike the present in its facts, and in principle it is directly in point. The plaintiffs were bankers, residing at Norwich, and the defendants, proprietors of the mail coach from Norwich to London. Early in the year 1810, a person, who was one of the proprietors of another coach, called the old Norwich coach, intending to relinquish a part of his interest in that concern, and having promised the refusal to the plaintiff, T. Bignold, the defendant, Coldwell, proposed to T. Bignold, that if he would give up his claim to that promise, his own family and private parcels should go free by the mail coach; to which proposal T. Bignold, after some time, acceded. From that time parcels were sent two or three times a week, free of expense, until at length, in 1812, a parcel was sent by the plaintiffs

1. 2 Show. 327.

2. Boson v. Sandford.

3. Rez v. Kilderby.

5. Wright v. Snell.

4. Jackson v. Rogers, 2 Show. 327. 6. Middleton v. Fowler.

to a house in London, containing bills and notes to a large amount, which was lost. There was no evidence that any of the proprietors of the coach, except Coldwell, had any knowledge of the agreement made between himself and Bignold; and an action being brought against all of them to recover for the loss of the package, the plaintiffs were nonsuited. A rule nisi having been obtained for setting it aside, and argued, Lord Ellenborough observed: "It appears to me, in this case, that there was not any contract with the defendants, constituted in such a manner as to bind more than one of them. There was indeed a contract, and a fraudulent one, between T. Bignold and Coldwell, which was unknown to the other defendants, to carry the family and private parcels of Bignold free of carriage, for a consideration moving to Coldwell alone." Again: "It (the parcel) was delivered to the defendants for the purpose of carriage, but not for a reward to all the partners; but for a reward which was to be intercepted by one only. It is a general rule, indeed, that where several are concerned together in partnership, notice to one is equivalent to notice to all; but that rule presumes that the transaction is bona fide. Here, however, the case is different; the agreement is made with one of the defendants for his individual benefit alone, and the others are not parties concerned, not being made privy to the agreement. It was incumbent, therefore, on the plaintiffs, to show that notice was given to the other partners. I do not rely on the argument that this was a bailment for the conveyance of the parcel without reward, and therefore the bailee responsible only for personal negligence; but the ground I take is this, that there was no contract at all between the plaintiffs and the defendants." And with Lord Ellenborough the other judges of the king's bench concurred, and the rule nisi was discharged.

We have considered thus at length the case in Maule & Selwyn, because it seems to us so decisive of the one at bar. In that case, the contract was with but one of the owners of the coachhere, it was with two of the proprietors only of the boat: there, the reward was intercepted by one only-here, Messrs. Hammond and Donaldson, if the shipment was made on the footing of their agreement with the defendants, alone received the freight. Here, as in that case, the record furnishes no intimation that Messrs. Jones & Horner had a knowledge of the agreement between the defendants in error and Hammond and Donaldson, so that there is not the slightest ground to infer that they gave their assent to the arrangement, by agreeing to

look to Hammond and Donaldson as their debtors primarily, for their proportion of the freight with which the defendants might credit Hammond and Donaldson.

So, in King and Mead v. Lenox, 19 Johns. 235, an action was brought against the owner of a ship, to recover for goods lost on a voyage from Calcutta to New York. It appearing that the plaintiffs contracted with the master of the ship himself, with the knowledge that he received their goods on his own account, and not in his character of agent for the owners; the court held that the contract was not made by any implied authority of the owners, arising out of the usual course of employment, and that the defendant was not chargeable with the loss. To the same effect, are the cases of Satterlee v. Groat, 1 Wend. 272; and Allen v. Sewall, 2 Id. 327. And in Butler v. Basing, 2 Car. & P. 613, Garrow, B., remarks, that "if persons be foolish enough to send parcels by a wagoner, for a hire to be paid to him, which is never intended to find its way into the pocket of the owner of the wagon, there the owner is not liable, in case the parcel is lost." To the same point are the cases of Walter v. Brewer, 11 Mass. 99; Reynolds v. Toppan, 15 Id. 370 [8 Am. Dec. 110]; Thompson v. Snow et al., 4 Greenl. 264 [16 Am. Dec. 263]; and Riley v. Horne, 5 Bing. 217, 220, 221, in which Best, C. J., delivered a very learned and elaborate opinion.

We do not pretend to say that the owners of a boat shall always receive or be entitled to a reward for the carriage of goods, in order to render them liable for a loss. If there was an agree ment between the master and the owners, or between the owners themselves, by which the master in the one case, or some of the owners in the other, were to receive to their use exclusively, the freight earned in whole or in part by the boat, such an agreement would not exempt all the owners from liability; unless it was known to the shipper at the time his shipment was made. But we do say, that to charge the owners with a loss, where the contract was made through a master, the contract should be made relative to the usual employment of the boat: 19 Johns. 236; 2 Wend. 327. This conclusion clearly results from the law of principal and agent; and that where there was an agreement between the shipper, and some of the owners, by which the latter were alone to receive the freight, the owners, not benefited by the shipment, are not liable for a loss. The authorities already cited are full to this point: See further, Taggard et al. v. Loring, 16 Mass. 336 [8 Am. Dec. 140]; East India Co. v. Pullen, 2 Stra. 690. It will follow, from what we have said, that

if the defendants in error shipped their cotton on the Warrior, under their agreement with Hammond and Donaldson, that Jones & Horner are not liable for the loss, and that the circuit court should have instructed the jury as asked.

For the refusal thus to instruct them, the judgment is reversed and the case remanded.

PHARES V. STEWART.

[9 PORTER, 336.]

TORTFEASOR IS RESPONSIBLE FOR ALL IMMEDIATE INJURIOUS CONSEQUENCES occasioned by his acts, though they might have been averted by the exercise of skill and care on the part of the injured person. Thus if a vessel sink from the effects of a collision, the other vessel, if in fault, will be responsible for the loss thus occasioned, though proper exertions on the part of the master and crew of the injured vessel might have kept her afloat.

CASE. The action was brought to recover from the owners of the steamboat Choctaw, the value of a flatboat and a cargo, which sunk owing to damages that the flat received in a collision with the Choctaw on the Tombeckbee river at night. The evidence was conflicting as to the party upon whom the blame of the collision lay. The evidence on the part of the owners of the Choctaw, however, did tend to prove, that had not the crew of the flat deserted her, she might have been kept afloat, and the injuries occasioned by the collision avoided; but it appeared that immediately after the collision the crew of the flat climbed upon board of the Choctaw, and left the flat to float down the river. The flat was found stranded next morning about four miles below the place of collision, with a part of her cargo untouched by the water, and with one side under and one side out of the water. The court was asked to instruct the jury, amongst other things, "that even if the alarm at the collision was such as to induce the master and crew to leave the flat, yet if when the alarm subsided the flat had not sunk, but was yet floating, it was their duty to have returned and endeavored to save the boat and its lading." The instruction was refused.

Gayle, for the plaintiffs in error.

Stewart, contra.

GOLDTHWAITE, J. The evidence disclosed by the bill of exceptions is very contradictory, and it was the peculiar province of the jury, to determine what degree of credit ought to be given to

the several witnesses. Before a verdict could properly have been rendered for the plaintiffs, the jury should have been satisfied that the collision between the boats was caused by the negligence or improper conduct of those in charge of the steamboat: either of these facts having been established, it was only necessary to ascertain the amount of injury sustained by the plaintiff, and flowing immediately from the wrongful or negligent act of the defendants' servants: that the jury were thus satisfied, must be presumed from the verdict, and as no exception was taken to the opinion of the circuit court, except in the particulars shown by the bill of exception, we must conclude that the general rule of law governing cases of this description, was correctly expounded to the jury. In general, a party is responsible for all the consequences which flow immediately from his wrongful or negligent acts: such is the well-established rule of the criminal law, which holds an individual responsible for a death caused by a wound, which might have been healed, if skillfully attended to in due season, though the responsibility is not incurred if the death is caused by unskillful treatment, and is not the consequence of the wound itself.

In relation to civil suits, it is believed there is no exception to the general rule, as stated, though cases may be imagined in which a modification of the principle might be necessary to effect the purposes of justice; as, if one, after receiving an injury of a slight and unimportant nature, was willfully to neglect the necessary means to stop the progress of the injury, he might be, in strict justice, debarred from a recovery of all but the damages arising from the injury, at the point when his willful neglect had intervened.

The counsel for the plaintiffs in error has supposed, that if the consequences of the injurious act could be prevented by the care or skill of the sufferer, that the wrong-doer is not responsible except for the direct and present injury. No authority has been cited to prove the existence of this qualification or exception of the general rule, and it is believed that none can be found, as it does not seem consonant to reason, that any one shall be discharged from the liability to answer for the immediate consequences of his own acts, by the omission or want of skill in another. If, in the case before us, the collision of the boats was caused by the negligence or mismanagement of those in charge of the steamboat, and the flat and its cargo could have been saved, after the collision, by the exercise of care and skill, it was incumbent on those who caused the injury, to have taken the