#### ABNER HARRELL & Co. *v.*JAMES OWENS.

The rule of diligence which measures the liability of common bailees for hire, is not that by which the engagements of common carriers is to be tested. The latter can be excused from the non-performance of their contracts, by nothing short of the act of God, or of the public enemy.

This was an action of assumpsit brought to charge the defendant as a common carrier, for not delivering within a reasonable time, certain articles in pursuance of the following written agreement:

“Received from Alpheus Forbes, junr. on board the Schooner Carolina, Cork, one hogshead molasses, three barrels whiskey, two barrels flour, one barrel sugar, and one keg tobacco, which I promise to deliver unto Messrs. Abner Harrell & Co. at Mount Pleasant Fishery, on the Chowan River, N. C. They paying freight and lockage for the same as customary.

“ Norfolk, March 28th, 1834.

(Signed) James Owens.”

Upon the trial at Hertford on the last Circuit, before *274his Honor Judge Settle, it appeared that the defendant was the captain or master of the schooner Carolina, mentioned in the contract; that Mount Pleasant Fishery, the place where the plaintiffs’ goods were to be delivered, was situated about fifteen or twenty miles *below*Winton, on the Chowan river; that the usual time of a trip for vessels from Norfolk to Winton is six or eight days, though the voyage may be protracted three or four days longer by adverse winds and tides; that no such cause of delay occurred in the present case, but that the defendant instead of stopping at Mount Pleasant, the plaintiffs’ fishery, on his way up the river, passed on to Winton, where he deposited a part of the plaintiffs’ goods, from which place the plaintiffs some days afterwards sent for and obtained them; the balance of the goods the defendant took on with him in a trip higher up the river, and on his return down delivered them to the plaintiffs at their said fishery. It appeared further from the cross-examination of one of the plaintiffs’ witnesses, that when the defendant was at Win-ton on his way up the river, upon his being informed that he had passed by the plaintiffs’ fishery, he stated that he had been told that the fishery was *above*Winton, and witness expressed his belief that the defendant would have immediately returned to the said fishery if the wind and tide had been favourable. It was also proved by the person with whom the plaintiffs’ goods were left at Winton, that at the request of the defendant he had given immediate notice to the plaintiffs’ of such deposit. The plaintiffs, it appeared, had commenced hauling their seine at Mount' Pleasant on the 7th of April, and their goods were received from Winton some ten or fourteen days afterwards. There was no allegation that any part of the goods had not been delivered at all, but the only question was, whether the defendant had delivered the articles mentioned in his contract, or had caused them to be delivered to the plaintiffs» within a reasonable time.

*273December, 1835' ..

*274His Honor charged the jury, that the defendant was bound to use all the diligence that a prudent and discreet man would use in the management of his own business; *275that if he was not acquainted with the river Chowan and the several fisheries thereon, it was his duty to have made necessary and proper inquiries in relation to the place of the plaintiffs’ fishery, before he left Norfolk, and also of those he might meet on his voyage upon the river; and to have used all other means in his power to find out Mount Pleasant, the place of delivery. That if the jury should be of opinion that the defendant had used all the diligence and caution that a prudent and discreet man would use in the management of his own affairs, in his endeavours to find out Mount Pleasant, the place of delivery, and that the articles were delivered to the plaintiffs’ as soon as the defendant could, after using this degree of diligence and caution, he was entitled to their verdict; but, if on the other hand, the jury should be of opinion that the defendant had failed to use the degree of diligence and caution before stated, they should find for the plaintiffs; and should give them such damages as they had sustained by reason of the defendant’s failing to deliver the articles at the place stipulated, within a reasonable time. A verdict was returned for the defendant, and the plaintiffs appealed.

No counsel appeared for either party.

Gaston, Judge.'

— We are of opinion that there is error in the instructions given to the jury upon the trial of the issues in this cause. The law for the advancement of trade, justly regarded as materially affecting the interests of the whole community, imposes upon public carriers a responsibility far more rigorous than that which attaches to ordinary bailees for hire. The rule of diligence which measures the liability of these bailees, is not that by which the engagement of the defendant was to be tested. He could be excused from the non-performance of his contract, by nothing short of the act of God, or of the public enemy. It is not enough that he has exerted all the diligence which a prudent man would exert in the management of his own affairs, to find out the place where the articles were to be delivered. Having engaged for freight to carry them to, *276and deliver them at that place, he cannot allege ignorance, want of skill, or any excuse arising from human fault or human weakness, as a defence for violating his engagement. The true question is not one of *actual blame,*but of *legal obligation.*

The judgment must be reversed, and a new trial awarded.

Per Curiam. Judgment reversed.