jurisdiction of the question, their decision was merely nugatory, and required no reversal. Thereupon the plaintiff brought the present suit, and the defendant pleads in bar of the scire facias the facts above stated. It is now claimed on the part of the plaintiff, that the County Court had no authority to entertain the motion for an exoneratur. It has been regarded as settled law in this State, until the recent statute, that a mere privilege from arrest could not be pleaded in abatement of a suit brought in violation of such privilege. And the courts have often shown themselves somewhat astute, in devising grounds upon which to presume a waiver of the privilege from arrest, by giving bail, or in some other mode. But it is not now esteemed any good ground for presuming a waiver of privilege from arrest, because the person takes the ordinary and most expeditious mode of freeing himself from arrest. He may notwithstanding bring an action of false imprisonment, or case, or may seek redress in such other modes, as the law affords. And it is very evident, that the English Courts of Common Law do interfere, at all stages in the proceedings, to relieve the bail. 3 Petersdorff's Ab. 74, where it is said, "If the exemption be satisfactorily established, the proceedings upon the bond will be set aside." The case of Haliday v. Colo. Pitt, (2 Strange, 985); S. C. Comyn, R. 444, satisfactorily establishes the rule, that under the English statute of exemption from arrest, if the case is clear of all doubt, the court will discharge on motion, founded on affidavits. And if doubts exist in regard to the fact, or right of exemption, the party is turned over to his remedy, by writ of privilege. The case of Chester v. Upsdale, (1 Wilson, R. 278,) recognises the same rule, but that case was held too doubtful to justify a discharge on motion. So too the case of Bartlett v. Hobbs, (5 T. R. 689.) And the same is again held in Spencer v. Stuart, (2 East, R. 89.) And in Luntley v. Battine, (2 3. & A. 234,) precisely the same general rule is declared by Abbott, C. J., and the former cases reviewed. and approved. We can therefore entertain no doubt, that the matter is regarded as coming fairly within the general discretion of the court, when the suit is pending, either against the principal, or the bail, to enter an exoneratur on the bail bond, or discharge the bail on his own motion. And when the thing is done, it is conclusive upon the parties, and all interested. Judgment that the plea is sufficient, and that defendant recover his costs. Recent English Case. Court of Exchequer, November 16, 1852. Carrier by Sea-Damage by Rats. Where goods put on board a ship to be carried by sea, for hire, under a bill of lading which contains only the usual exception, viz., "The Act of God, the Queen's enemies, fire, and all other dangers and accidents of the seas, rivers and navigation, &c. excepted," are damaged by rats during the voyage, it is no defence to an action by the owner of the goods, that the master had kept cats on board. Semble, it would be a defence that rats had made a hole in the ship through which water came in and injured the goods. CROWDER, On the 8th November, moved for a new trial, on the ground of misdirection by Martin, B., before whom this case was tried. The nature and facts of it appear in the judgment. Cur. adv. vult. The judgment of the court, consisting of Pollock, C. B., Alderson, Platt, and Martin, BB., was now delivered by POLLOCK, C. B. We took time to consider this case, not because we entertained much doubt on the subject of it, but in consequence of Mr. Crowder's having cited several foreign authorities adverse to the opinion we have formed, viz., that there ought to be no rule. This was an application for a new trial, made by Mr. Crowder on behalf of the defendants, on the ground of misdirection. The cause was tried before my Brother Martin at the first sittings in this term, when a verdict was found for the plaintiff. The declaration was in the ordinary form by the plaintiff, the owner of goods, against the defendants, who were ship-owners, for damage alleged to have occurred by the negligence of the defendants, owners of the ship Anna Sophia, to some Parmesan cheese, the property of the plaintiff, on a voyage from Genoa to London. In the month of December, 1851, the Anna Sophia was at Genoa, taking in cargo as a general ship, and the cheese in question was loaded on board, and three bills of lading signed by the master in respect of them. The bills of lading were in the Italian language, and all substantially in the same form; and by their terms, the master purported to bind himself absolutely to deliver the cheese safe and free from damage in London. He, however, was examined at the trial, and stated that he was ignorant of Italian, and that before he signed the bills they were read to him by the broker, as if the ordinary exception contained in the English bills of lading was contained in and was part of them, and that he signed them under the belief and on the understanding that they were in the ordinary English form. For the purpose of the present question it is to be considered that they were in such form: for the direction which is complained of was founded upon the supposition that the exception above referred to was contained in the bill of lading, and that the plaintiff was bound by it. The ship sailed, and arrived in London; but several of the cheeses, as it was found by the jury, were eaten and damaged by rats in the course of the voyage. It was proved by the master that he had two cats on board; and it was insisted by the learned counsel for the defendants that it was a question for the jury whether the defendants had not, by keeping the cats, excused or relieved themselves from the charge of negligence alleged against them. The learned judge, however, was of opinion that this was not a question for the jury: and he directed them that damage by rats was not within the exception contained in the English bill of lading, and that if they believed that the cheese had been eaten and damaged by rats, in the course of the voyage, the defendants were responsible to the plaintiff. We are of opinion that this direction was right. By the law of England, the master and owner of a general ship are common carriers for hire, and responsible as such. This, according to the well known rule, renders them liable for every damage which occurs during the voyage, except that caused by the act of God or the Queen's enemies. They, however, almost universally receive goods under bills of lading signed by the master; and in such case the liability depends upon and is governed by the terms of the bill of lading, it being the express contract between the parties; the owner of the goods on the one hand, and the master and owner of the ship on the other. The exception contained in the English bill of lading, which is to be assumed to be in the bills of lading in the present case, will be found in Abb. Ship. 322, 8th ed., and is as follows: "The act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers and navigation, of whatever nature and kind soever, save risk of boats, so far as ships are liable thereto, excepted." We agree with the learned judge that the true question is, whether damage by rats falls within this exception, and we are clearly of opinion that it does not. The only part of the exception under which it possibly could be contended to fall is, as "a danger or accident of the sea and navigation:" but this we think includes only a danger or accident of the sea or navigation properly so called, viz., one caused by the violence of the wind aud waves (a vis major) acting upon a seaworthy and substantial ship; and does not cover damage by rats, which is a kind of destruction not peculiar to the sea or navigation, or arising directly from it, but one to which such a commodity as cheese is equally liable in a warehouse on land as in a ship at sea. In moving for the rule, the learned counsel for the defendants cited various foreign writers of great eminence and authority Emérigon, vol. 1, pp. 375, 376; Consulato del Mare, chaps. 65, 66; Roccus, de Navibus, Not. 58; and Story on Bailments, sec. 513. The foreign authorities first above mentioned lay down the rule distinctly, that a ship's master who keeps cats is excused from damage by rats: but however eminent their authority, and however worthy of attention and consideration their works are, we cannot act upon them in contradiction to the plain and clear meaning of the words of the bill of lading, which is the contract between the parties. As to Mr. Justice Story, he very carefully confines himself to stating that such are the foreign authorities, and, as it seems to us, avoids expressing his own opinion upon the point. He cites a case in the Court of Pennsylvania, where damage by rats was held to be a peril of the sea; Garrigues v. Cox, (1 Binu, 592); but he also refers to another case, Aymer v. Astor, (6 Cowen, 266,) and to 3 Kent's Com. 301, where the contrary is stated to be the law. It was strongly insisted that the same doctrine was laid down by Lord Tenterden in his book on Shipping, p. 371; and there is no doubt that any opinion coming from him is entitled to the greatest weight and consideration. We do not, however, think Lord Tenterden can be understood as laying down such a rule. He cites the passage from Roccus, which states that keeping cats on board excuses the shipowner from damage by mice, but immediately after states this to be merely an illustration of the general principle, by which masters and owners are held responsible for every injury that might have been prevented by human foresight or care. Now, whatever might have been the case when Roccus wrote, we cannot but think that rats might be now banished from a ship by no very extraordinary degree of diligence on the part of the master. And we further are very strongly inclined to believe that in the present mode of stowing cargoes cats would offer a very slight protection, if any, against rats. It is difficult to understand how in a full ship a cat could get at a rat in the hold at all, or at least with the slightest chance of catching it. But that Lord Tenterden cannot be understood as contended for by the learned counsel for the defendants in the present case, is evident from the authority which he cites for his view of the law. Dale v. Hall, (1 Wils. 281.) That was an action against a shipmaster who carried goods for hire. It was contended for the defendant at the trial that the plaintiff had proved no negligence, and it was proposed to prove that the defendant had taken all possible care of the goods, and that the damage accrued by rats having made a leak in the vessel whereby water was admitted, and that thereupon every thing possible was done to pump out the water and prevent the damage which happened. The evidence was admitted, and the defendant obtained a verdict. A new trial was moved for on the ground that the evidence was not legally admissible, and the rule was made absolute. The Chief Justice stated that the evidence ought not to have been received, that every thing was negligence in a carrier or hoyman that the law does not excuse, that he was answerable for goods the instant he received them, and in all events, except they happened to be damaged by the act of God or of the King's enemies. This is the case stated by Lord Tenterden in the part of his book above referred to as one, indeed the principal, authority upon the subject; and we entirely concur in it, and it seems to us conclusive in the present case. In our |