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declaration then is sufficient, and the judgment must be affirmed.

NOTICE OF ACCEPTANCE OF GUARANTY AND OF NON-PAYMENT, NECESSITY Or: See Fellows v. Prentiss, 45 Am. Dec. 484, and note; Whiton v. Mears, Id. 233, and note.

WHITESIDES V. THURLKILL.

[12 SMEDES AND MARSHALL, 599.]

BY COMMON LAW, A CARRIER OF GOODS IS REGARDED AS AN INSURER, and is held accountable for any damage or loss to them, unless from inevitable accident, which is the same thing with the act of God, or of the public enemy; but the party may limit this common-law liability by express stipulation in his contract.

LOSS BY COLLISION COMES WITHIN EXCEPTION OF "DANGERS OF THE RIVER," if the loss arose without any fault on the defendant's part, or that of the hands upon his boat; but if they had been guilty of negligence, or might have prevented the loss by the exercise of reasonable skill and diligence. then the defendant would be liable.

ERROR from the Itawamba county circuit court. The opinion states the case.

R. Davis, for the plaintiff in error.

By Court, CLAYTON, C. J. This was an action in the circuit court of Itawamba county to recover damages for injury done to thirty bales of cotton, shipped by Thurlkill upon a flat-boat belonging to Whitesides. The bill of lading was in the usual form, agreeing to deliver the cotton in Mobile in good order, the dangers of the river excepted. The boat was descending the river below Dunopolis, in the night, when a steamboat, likewise going down, struck the flat-boat, knocked off some of the planks, and sunk it. The cotton was recovered and sent to Mobile, but in a damaged condition.

The question is as to the liability of the carrier. The court charged the jury: 1. "That the defendant is liable, unless the loss was occasioned by inevitable accident, and that by inevitable accident the law means such accident or casualty as no human foresight could have guarded against."

2. "

That if the jury believe that defendant could have avoided the loss by keeping up larger or better lights, or by keeping the boat nearer the shore, or by changing her course or position at the time, then he is liable."

3. "

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The exception in the bill of lading of the dangers of

the river,' does not embrace a loss occasioned by a collision which might have been avoided by human foresight."

4. "That if the loss occurred from an accident against which no human skill, prudence, or foresight could have guarded, then the defendant would not be liable."

The correctness of these charges is to be determined.

By the common law, a carrier of goods is regarded as an insurer, and he is held accountable for any damage or loss to them, unless from inevitable accident, which is the same thing with the act of God, or of the public enemy: New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 381; Neal v. Saunderson, 2 Smed. & M. 576 [41 Am. Dec. 609]. But the party may limit and narrow down this common-law liability, by express stipulation in his contract. The exception of the "dangers of the river," is one instance of this limitation. In Neal v. Saunderson, Id. 578 [41 Am. Dec. 609], the court said: "This exception has the effect to exempt the carrier from losses arising not only from natural causes, but from accidents which are usually considered as peculiar to the river." The term " perils of the sea,” has been held to include losses by collision of two ships, where no blame is imputable to the injured ship: Story on Bail. 330. But if the loss be directly and immediately occasioned by the ignorance or inattention of the master and mariners, it is not deemed a loss by the perils of the sea. Hence it is, that if the loss occurs by a peril of the sea, which might have been avoided by the exercise of any reasonable skill, or diligence, at the time when it occurred, it is not deemed to be in the sense of the phrase, such a loss by the perils of the sea as will exempt the carrier from liability, but rather a loss by the gross negligence of the party: Id. 331. These special stipulations are not held to exempt the parties for losses arising from willful misconduct, gross negligence, or want of ordinary care: New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 383.

By comparing the charges given in the court below with what is here stated, it will be readily seen that the law was laid down with too much stringency against the defendant below. The first charge especially enforced all the rigor of the common-law rule, without any modification growing out of the exception of the dangers of the river."

Instead of this, the jury should have been told that the defendant was not liable, if the loss arose without fault on his part, or that of the hands upon his boat; but if they had been guilty of negligence, or might have prevented the loss by the

AM.DEC. VOL. LI-9

exercise of reasonable skill and diligence, then he would be liable.

The parties must have intended something by the exception. The object was to modify the responsibility imposed by the common law, and to diminish the risk of the carrier. This was lawful. The effect of the modification, as indicated by previous decisions, is shown by what is stated above.

The case of Gilmore et al. v. Carman, 1 Smed. & M. 279 [40 Am. Dec. 96], may seem to stand opposed to this conclusion. We do not mean to interfere with the point there decided, that a loss occasioned by fire upon a steamboat is not within the exception of the dangers of the river. The attention of the court was there directed to the facts before it, and the general expressions must be taken in connection with the facts.

For the error in the charge of the court, the judgment will be reversed and a new trial awarded.

COMMON CARRIER, HIS POWER TO LIMIT HIS LIABILITY: See Hollister v. Nowlen, 32 Am. Dec. 455, and the note to Cole v. Goodwin, Id. 470, discussing this subject at length. The principal case is cited on the point as to the power of a carrier to exempt himself from liability, in Railroad Co. v. Lockwood, 17 Wall. 371; McMillan v. M. S. & N. I. R. R. Co., 16 Mich. 116.

COLLISIONS ARE PERILS OF THE SEAS, WHEN: See note to Van Hern v. Taylor, 41 Am. Dec. 282.

ANDERSON V. HILL.

[12 SMEDES AND MARSHALL, 679.]

WHERE, ON PUBLIC SALE OF TOWN LOTS, it is in proof that a certain lot extending to the Tombigbee river was, on the day of sale, reserved as a depot for a railroad, which was to have its terminus at that point, and the lot bought by the defendant and other lots similarly situated were regarded at the sale as front business lots, and consequently brought higher prices, and afterwards the railroad was abandoned and the lot intended for the depot was sold out in small lots, covered, at the time of the trial, with cotton-sheds, cutting off from the river the lots purchased, and making it a back instead of a front lot, causing it to greatly depreciate in value, these facts would justify and require a court of equity to rescind the contract, and will form a good defense to an action on a writing obligatory given for the price.

DEFENSE OF FRAUD IN A CONTRACT OF SALE MAY, apart from and independent of any defect of title, be made in an action for the price of the land, although the defendant has not been evicted or disturbed in the possession of his lot.

WHERE THERE WERE NO EXCEPTIONS TO THE CHARGES OF THE COURT, at the time they were given, but after the motion for a new trial was over

ruled the testimony and charges of the court were set out, and the bill of exceptions says, "and therefore the jury returned a verdict for the defendant, to all of which the plaintiff excepts," this does not amount to anything more than an exception to the refusal to grant a new trial, because not reserved or taken until after the verdict; and the instructions can not therefore be reviewed.

ERROR from the Monroe county circuit court.

Adam G. Smith, for the plaintiff in error.

Good and Burnett, contra.

By Court, CLAYTON, J. This was an action of debt brought upon a writing obligatory, given for the purchase of a town lot, at the public sale of lots, in the town of Aberdeen. The defense is fraud and failure of consideration. In many respects the case is like that of Anderson v. Burnett, 5 How. 165 [35 Am. Dec. 425], and Bell v. Henderson, 6 Id. 311, which grew out of sales of lots in the same town. The advertisements, and the vague general representations, were there held not to amount to fraud, because they related to matters open to the examination of all persons, and about which they could form their own conclusions.

But there is one feature in this case different from the others. It is in proof that a lot extending to the Tombigbee river was, on the day of sale, reserved as a depot for the railroad, which was to have its terminus at that point, and that the lot 858, for which this note was given, adjoined the depot lot, which was situated between it and the river. This lot 858, and others similarly situated, were regarded at the sale as front business lots, and consequently brought higher prices than they would otherwise have done. Afterwards the railroad was abandoned, and the lot which had been reserved for the depot was sold out by the trustees in small lots, which were covered at the time of the trial with cotton-sheds, which cut off the lot 858 from all direct communication with the river, and made it a back instead of a front lot. It had, consequently, greatly depreciated in value, and was worth scarcely one twentieth of the original price. We think this would have justified and required a rescission of the contract by a court of equity: Donelson v. Weakley, 3 Yerg. 178. The very object for which the lot was purchased was defeated by the act of the plaintiff. There is no railroad or depot, and the lot is shut out from the river, so that it is no longer regarded as a business lot, according to the testimony.

But it is said, the party has not been evicted or disturbed in his possession of the lot, and can not, therefore, defend at law. That is certainly the rule where the defense attempted is a failure of consideration from defect of title: Hoy et al. v. Taliaferro, 8 Smed. & M. 740. But where the defense set up is fraud in the contract of sale, apart from any defect of title, and independent of it, there the defense may be made in an action upon the instrument: Barringer v. Nesbit, 1 Smed. & M. 22; Brewer v. Harris, 2 Id. 84 [41 Am. Dec. 587]; Ellis v. Martin, Id. 187.

There were no

The jury found a verdict for the defendant. exceptions to the charges of the court, at the time they were given; but after the motion for a new trial was overruled, the testimony and charges of the court were set out, and the bill of exceptions says, " and therefore the jury returned a verdict for the defendant; to all of which the plaintiff excepts." This did not amount to anything more than an exception to the refusal to grant a new trial, because not reserved or taken until after the verdict. Smedes' Dig., Bill of Excep., sec. 4. The instructions can not therefore be reviewed.

We think the verdict was in accordance with the testimony, and with the law as herein stated, and, therefore, direct that it be affirmed.

Judgment affirmed.

FRAUD OF VENdor, Vendee RELIEVED ON GROUND OF, IN EQUITY, WHEN: See Cullum v. Branch Bank, 37 Am. Dec. 725, and note; Ingram v. Morgan, 40 Id. 626, and note. The principal case was cited in Johnson v. Jones, 13 Smed. & M. 582, to the point that a vendee may defend at law for any fraud in the contract of sale apart from and independent of any defect in the title.

OBJECTION NOT TAKEN AT THE TRIAL, and not presented to the court, can not be sustained: State v. Morgan, 47 Am. Dec. 329; Clark v. State, 40 Id. 481; Hewett v. Buck, 35 Id. 243. The principal case was cited in Drake v. Surget, 36 Miss. 487, to the point that an objection to instructions taken for the first time on a motion for a new trial will not be considered.

SANDS v. ROBISON.

[12 SMEDES ANd Marshall, 704.]

No OATH OF SECRECY IS REQUIRED FROM GRAND JURORS as to what transpires among them in the discharge of their office.

COMPETENCY OF GRAND JURORS TO TESTIFY is peculiarly a matter of discretion with the court to discriminate as to it; and in an action of slander, grand jurors are competent to testify to the uttering of the supposed slanderous words before them, while officiating as grand jurors.

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