#### JAMES D. DOTY, ALEXANDER J. IRWIN, and DAVID *JONES, pl'ffs in error, vs.*MOSES M. STRONG, *def't in error.*

*Error to Dane county.*

Where a defendant is defaulted for want of a plea, and the plaintiff agrees to set aside the default on condition that the defendant will plead to the merits and go to trial, a general demurrer to the declaration is not such a plea as the plaintiff is hound to receive, and if he objects to It, the court should not allow it to be filed.

There is no rule of court or of law that limits the time of returning a deposition into court, or directs by whom it shall be delivered; and where a deposition was duly taken and certified, and ream ed into court by the plaintiff on whose behalf it was taken on the second day of the term, several months after it was taken, it ought not on that account to be rejected.

A deposition or a witness should be objected to at the time of offering to read the deposition or swear the witness: If once admitted, the. court cannot take either from the jury by instruction; though the court may instruct the jury to disregard evidence or testimony on the ground of interest developed in the trial.

*159Exceptions to testimony taken in the court below, will not be considered, ■unless the evidence is made a part of the record by the-bill of exceptions.

Common carriers are liable, upon their general undertaking, to the public, lor neglecting or refusing to transport the goods of any person who applies to them with such goods as they.have undertaken to carry, in condition to be transported, at the place designated for receiving them; and no special contract with the particular person so applying, is necessary to charge them.

In an action against common carriers apon their general undertaking, *it is*necessary to fix upon them their character its such by testimony; and a notice of their general undertaking, published by them in a public newspaper, when identified with the defendant's by other evidence, is proper testimony in the cause.

In an action against common carriers for neglecting or refusing to carry goods, it is not necessary to prove ally special undertaking of the defendants.

Common carriers are liable for refusing to carry when properly requested, as well its for negligently carrying or failure to carry after the freights have been delivered to them.

A refusal of the court to instruct the juryupon abstract principlcsof law, not presented in the record or by the facts in the case, is not error; and the court mast respond to the facts so far, as to decide whether a principio oí law is raised by the facts or not.

The fact that no freight boats passed on the line of transportation in which the common carriers were engaged, after the application of the plaintiff, is no defence to the action; if the fact liad been that boats could not possibly pass at the time of the request, from causes out of the control of the defendants, they would then be excused for refusing to carry.

This was an action of assumpsit, originally commenced by Strong against the plaintiffs in error, in the Iowa District Court, The declaration contained two counts; the first alledging that the defendants made arrangements to transport merchandize from Green Bay to the Wisconsin Portage in durham boats of thirty tons burthen, and that they undertook and promised the public to transport all such merchandize and freight as they should be reasonably requested to do, from Green Bay to the Portage, at one dollar and twenty-five cents per hundred pounds; that on the 1 Oth September, 1839, the plaintiff had al Green Bay a large quantity ■of freight, consisting of merchandize and household furniture; that the defendants were then and there requested by the agents of the plaintiff to transport the same to the Portage, but the defendants, not regarding their said undertaking, refused so to do; that the plaintiff was unable to get his goods transported by water, and was compelled to leave them for a long time at Green Bay by which they became greatly damaged; and that the plaintiff was put to great expense injuring teams to haul the said goods from Green Bay to the Portage, by all of which ho sustained great damage, and averred that the defendants became liable to pay said damages, and that in consideration thereof they under*160took and promised to do so. The second count was for money paid, laid out and expended. To this declaration the defendant Doty pleaded the general issue, before the other defendants were served with process. Upon this plea a trial was had in the Iowa District Court, and a verdict and judgment rendered in favor of the plaintiff. Doty sued out a writ of error, and at the August term 1840, of this court, the judgment was reversed, and the cause remanded for further proceedings.

After this, the plaintiff sued out alias process and had it served upon Jones and Irwin, and also obtained leave to amend his declaration, upon which he filed anew declaration, setting up a special undertaking of the defendents to carry the goods, &c., and averring special damages. To this declaration, the defendant Doty demurred generally, and the Court sustained the demurrer, to which the plaintiff excepted. After these proceedings, the cause was removed, by change of venue, to Dane county.

At the November term, 1841, of the Dane District Court, the defendants, Jones and Irwin, who had been surved with process, were in default for want of a plea, when the plaintiff agreed to waive the default on condition that they would plead to the merits and go to trial; whereupon they offered to file a general demurrer to the declaration, which was objected to by the plaintiff as not within the stipulation;'and on a subsequent day of the term, the court decided that the demurrer was not within the terms of the agreement allowing them to plead, and that they must plead to the merits or be defaulted, upon which they pleaded the general issue. At the same term the defendant Doty filed his affidavit, staring that ho was not ready for trial by reason of being taken by surprise by the deposition of Thomas J. Ormsbee, taken by the plaintiff and filed during the term, and that he believed he could, if time was allowed, disprove the testimony of said Ormsbee, The record does not show that the court made any disposition of this affidavit. The cause was tried at that term of the court, and in the progress of the trial, the defendants excepted to the following decisions of the court:

1. In permitting the plaintiff to read in evidence, an advertisement, published in a newspaper purporting to *be*printed at Green Bay, of the Fox River Navigation Company, and signed by the defendants, in which they offered to transport merchandize as charged in the plaintiff’s declaration, and afile of said newspaper from July to October, 1838, containing said advertisement.

*1612. To the admission of a certain written contract between the plaintiff and Calvin Frink.

3. To the admission of a certain written contract between tKe plaintiff, and William Longdo.

4. To the admission of the deposition of Ormsbeo.

And also to the decisions of the Court upon the several instructions to the jury asked for by tins defendant, which are embodied in the opinion of the Court.

The contracts with Frink and Longdo, were not made a part of the bill of exceptions.

The commission to take the deposition of Ormsbee, was issued upon interrogatories and cross interrogatories on the 25th May, 1841, to Rutland, Vermont, according to rules of court; was executed on the 27th July, 1841, and was produced in court and filed by the plaintiff on the 9lh November, 1841, the second day of the term,

Ormsbee testified: That he was present ata conversation between the plaintiff Strong and Jones, one of the defendants, on the 31st May, 1839, in which Jones said that Doty, Irwin and himself,were all jointly interested and engaged in transporting property, &c. up Fox River to Fort Winnebago; that each depended so much upon the others, that little or nothing was accomplished; that as soon as Strong’s goods arrived at Green Bay, he assured Frink and those with him, that they and the goods should be immediately sent up; that Frink and Longdo wove constantly urging to be sent off with the goods, but they were put off and delayed until Strong camo for them in the winter: That soon after the goods of Strong arrived at Creen Bay, he (Jones) earnestly and particularly urged Doty and Irwin to have them sent up immediately; that ho (Jones) went to Detroit, and when he came back he was surprised to find that the goods had not been sent, and learned that the reason was, that Doty and Irwin had detained the *boats*in hopes of getting a contract to transport government troops *to-*Fort Winnebago, and then it was too late; that he (Jones) had found much fault with Doty and Irwin for not sending up Strong’s goods, and they would all he obliged to pay Strong bis damages; that Strong then said to Jones, tlmt his original intention had been to send his goods by the Ohio Cana) to Portsmouth, and thence to Galena, but at Buffalo he saw a Green Bay newspaper containing an advertisement signed by Doty, Jones and Irwin, agreeing *162to transport goods from Green Bay to the Portage for $>1 25 per 100 pounds, and in consequence of that he sent his goods to Green Bay; that Jones upon being asked, said that they had issued such an advertisement, and that they intended to live up to it; that it had made no difference by Strong’s goods being stored in Bruce’s ware house, their ware house was not finished, and Bruce’s was the most convenient place where they could be stored; that the arrangement made by Strong through Merrill at Fort Winnebago to pay the freight, &c. was entirely satisfactory, and that the goods were not delayed a minute on *that*account, and that there was no other reason for the delay than as above stated; that Strong then presented to Jones a bill of damages amounting to $1700: when Jones said he had no doubt of Strong’s heavy dama-ages; that Doty and Irwin ought to pay it,and if he had been at homo instead of Detroit, he would have paid the bill if the goods had not gone; he had no reason to doubt the correctness of the bill.,

The jury returned a verdict in favor of the plaintiff for ‡1163 88 damages, upon which the District Court rendered judgment. To reverse this judgment the defendants below have brought the cause into this court by writ of error, and have assigned various errors in the record of the proceedings, which are noticed in the opinion of the Court.

Jackson, for pll’ffs in error:

This case brings to the consideration of the Court,the questions as to who are common carriers,and what are their liabilities? As to who arc to be considered common carriers, see Story on Bailment, 322; and as to what are their duties and responsibilities, same authority's . The common carrier is not bound to carry the goods, unless a reasonable compensation is paid or tendered to him. If the goods are not such as he is accustomed to carry; or not in good condition; or if he has no convenience to carry them; or if they arc brought at an unreasonable time, he is not bound to receive them. The boxes of goods and furniture of the plaintiff below, were of so large a size that they could not be carried in durbam boats; they arrived at Green Bay too late in the season to be sent up Fox River, and the defendants made no more trips that season. — ■ A carrier is not bound to receive goods, except when he is about to sot out on his journey.

The advertisement read from a public newspaper on the trial below for the purpose of proving that the defendants were com*163mon carriers, ought not to have been admitted. To make it evidence, it was necessary to prove that it was published by the direction or sanction of the defendants, in order to identify them, with the publication. This was not done. Ormsbee’s deposition only pioves the acknowledgments of Jones, and that cannot bind *the*other defendants until a partnership or joint liability is. proven.

The contracts between the plaintiff and Frink, and Longdo,. had no legal connection with the case. It matters not whether the contracts are set out in the bill of exceptions or not. An inspection of the declaration will show, that no possible contract of the kind could have any legitimate application to it.

The deposition of Ormsbee was taken more than three months, before it was filed, during the greater part of which time, the plaintiff had it in his custody and withheld it from the inspection of the defendants, and brought it himself into the court during the term, and on the eve of the trial. Such a practice is calculated to work great injustice to the opposite party by taking him by surprise at so late a period that he cannot rebut the testimony, and the court ought to have rejected it and discountenanced the practice.

The declaration alleges no undertaking to the plaintiff to carry,, huta genera] undertaking to the public only. The plaintiff is not entitled to recover upon such a declaration, and the objection may be taken on error.

The court below ought to have given the second instruction asked for by the defendants. , It sets forth an established principle of law as to the commencement of the liability of common carriers. A delivery and acceptance of the goods to be carried, begins the responsibility. Questions may arise as to whether a delivery was made or not, but in all cases the question is one of fact for the jury, and they must find, a delivery actual or constructive. Story on Bailment, 340; 2 Kent, 468.

The fifth instruction asked for was proper to be given as applicable to the case. For every undertaking that is binding in law,, there must be a consideration moving from the other party. To. hold the defendants responsible on their general liability as common carriers, and that is the only liability declared upon, the plaintiff ought to show that he had paid or tendered the price of carrying the goods: 2 Kent, 465.

*164In the refusal of the court to give the seventh and eighth instructions, the court assumed the facts and did not leave them to the jury to determine; this the court has no right to do. If the principle of law is correct, it ought to have been *given in*charge, and the jury should have determined the facts.

The court refused to give the ninth instruction, on the ground that the undertaking of the defendants in the public advertisement, implied a contract. If the plaintiff relied upon the general liability and implied contract of the defendants, then all evidence of a special contract or undertaking ought to have been rejected.

The declaration is founded upon general liability only, and no evidence of a special undertaking is applicable to the issue, and the court should have given the instruction and rejected the evidence. Cowen’s Treatise, 96, 97; 2 Starkie, 198; *Ciarle vs. Smith,*14 Jonh. Rep. 326.

Dunn, for def ’t in error:

The declaration is nota common count in its ordinary acceptation, but is on a special undertaking and so declared. It is not an implied promise, and the court will infer that it was supported by proof when the record does not show the contrary. The deposition of Qrmsbec proves the admission of the defendants below, that the advertisement was published by their authority, that they made the contract for transportation, and that the goods were received by them.

The instructions asked for by the'defendant were properly refused, because they had no cunnectión with the case. However correct the principles of law may be in the abstract, it was no error in the court to refusp to give them to the jury, when there were no facts in the case to which they could be applied.

The deposition of Orrasbee was taken according to the rules of court in every particular. The defendants say that they were surprised by the deposition, and object to the time of its filing because they have not time to rebut it. If Orrnsbeo had been produced on the stand and examined in court, which *might*have been the case, they would have had still less *time*to rebut his evidence; and so in the case of every witness. There is nothing in the objections and they have neither law nor reason for their foundation.

Whiton, in continuation:

*165The advertisement in the newspaper, taken in connection with the deposition of Ormsbeo, was proper evidence for the jury.— The deposition identified the publication with the defendants, who acknowledged it and said they intended to live up to it. Take the testimony altogether, and it is free from doubt.

There is nothing in the-record to enable this court to judge whether the written contracts between Strong and Frink, and Strong and Longdo, were properly admitted or not. The contracts themselves are not before the court, and in the absence of any thing to show the contrary, the law presumes that the District Court decided right in admitting them.

The various instructions asked for by the defendants, are all well enough in a proper case, but they do not suit the facts of this case. The defendants are sued as common carriers, and that character is fixed upon them by the testimony. Now it cannot *be*denied, that where a person holds himself out to the world as a common carrier, or agrees with a person to transport goods from one place to another, and the goods are deposited for him at the wharf or in a warehouse where he is in the habit of receiving his freights or agrees to receive them, and then neglects or refuses to carry them, that he is answerable in damages. The testimony shows that the defendants were satisfied with the arrangements to pay the freight; that the goods were deposited in Bruce’s warehouse at their request or by their agreement, and that the transportation was delayed on no other account than the expectation of getting a government contract. Then there was no applicability in the instructions asked, and upon reference to the testimony it will be seen, that they were based upon a supposed state of case that did not exist; the court therefore decided correctly in ¡refusingthem.

CoLtxjfs, in reply:

It is not competent for one partner to bind his co-partners by admissions, after the dissolution of tho partnership; nor can the declaration of one of several defendants bo received as evidence against all until a partnership or joint liability is first proved against all. The acknowledgments of Jones in this case, are not legal evidence against Doty and Invin to prove any thing.

If the principles embraced in the instructions asked for are principles of law, then they ought to have been given in charge to the jury. The court is bound to give instructions, proper in *166themselves, if they are applicable to or connected with case. — . The jury are the peculiar judges of *the*facts, and the court *must*give the law to the jury. Whore facts are controverted and evidence has boon given to prove them one way or the other, tho court should, if requested, give the instruction hypothetically., predicated upon one or the other state of facts, and it is error for tho court to assume that facts have or have not been proven, and refuse tho instruction.

Wc do not dispute about the liability of common carriers: But when a special engagement is made with them, they are no longer liable under the general law. To make them liable upon general principles for not receiving and carrying, it is incumbent on the plaintiff to prove, that the goods were such as the carrier usually carried, that they were in condition *to ho*carried, that they were brought to the place where tho carrier usually received his freights, and that the price was paid or tendered; and that the carrier, without any reasonable *excuse, refused to*take them. These are principles that cannot be denied; apply them to this case and there has been a total failure of the plaintiff to make out his cause of action; and to supply tho defect he has introduced evidence to prove special engagements and undertakings. It is said that we complain that the plaintiff proved too much: Such is the truth. The only issue in the case is upon a general count against the defendants on their undertaking to the public, upon thoir legal liability for refusing to receive and carry the goods; therefore, evidence of a special contract did not support the declaration; the special contract suspended and superseded the implied contract on the general liability, and whenever it was proven, the plaintiff ought to have been non-suited. The whole of Ormsbee’s deposition, relates to special engagements, and ought to have been rejected, because it docs not apply to the issue. The plaintiff cannot sustain his action upon general liability by proving a special contract when there is but one count in his declaration,

Opinion of the Court, by

Chief Justice Draw:

Error is prosecuted in this case to reverse the decisions and opinions of the District Court of Dane County, on the various grounds presented in the assignment of errors. The declaration of Strong, plaintiff in the court below, alleges: “Thatthe defendants (who are plaintiffs in error) made arrangements on or about the 2Gth May, 1838, at Green Bay, in the county of Brown, and *167Territory of Wisconsin, to transport merchandize from said Green Say to a placo called the Wisconsin Portage at or near Fort. Winnebago, in the county of Portage, in said Territory, in durharn boats of thirty tons burthen, and that they then and there undertook, assumed and promised to the public, to transport, for the sum of one dollar and twenty-five cents per hundred pounds, from Green Bay aforesaid, to the Wisconsin Portage aforesaid, all such merchandize or freight, as they should thereafter reasonably be requested to do:” And tho said plaintiff further averred in his said declaration, “that afterwards, on the 10th day of September, 1839, at Green Bay aforesaid, he then and there had a large quantity of freight, consisting of household furniture and merchandise, of tho weight of twelve thousand pounds, and that the defendants were then and there requested by tlie agents of the .plaintiff to transport, the same from Green Bay aforesaid to the Wisconsin Portage aforesaid, but the said defendants, not regarding their said undertaking, refused so *to*do; to the damage of the plaintiff,” &c. &c., alleging special damage. The general issue was pleaded, and issue being joined, the parties proceeded to trial in the said District Court, at the November term thereof, 1841. During the progress of the trial, many exceptions were taken to the opinions of tho court, which will bo considered in their order.

The last error assigned to an opinion of the court, on a question which had arisen before issue joined, for the sake of older, will be first considered. It is insisted by the plaintiffs in error, that *“*the court erred in refusing to entertain the demurrer filed by the said Jones and Irwin to the declaration of the said plaintiff below at the November term of the said District Court.” To understand this supposed error, it is necessary to consult the record embracing this part of the proceeedings in the case. From the record it appears, that at the said November term, two of the defendants below, Jones and Irwin, wore in an attitude to be defaulted for want of a plea under a rule; that the plaintiff below waived his right to a default, upon the terms that the said defendants should plead to the merits and proceed to trial. The defendants, under this waiver, filed their general demurrer, to which tho plaintiff Strong objected, as against the terms of the waiver. The court continued the objection under advisement to a subsequent day of the term, and thereafter on the seventh day of the *168term, the court decided *“*that said plaintiff had a right to insist on the terms of his waiver,” whereupon, on leave, said plaintiff withdrew his joinder in demurrer, arid ¡he said defendants Jones and Irwin pleaded the general issue, tho plaintiff joined, and tho trial progressed.

Wo are of opinion that tho terms of waiver are such as tho plaintiff might properly have imposed; that tho demurrer was not a plea to the merits, therefore not a compliance with tho terms; that tho plaintiff interposed his objection timely, and that the court decided correctly in enforcing lito terms. Tho joinder in demurrer after the objection raised; without drawing it, does not vary tho case, or imply a consent of tho plaintiff to join in demurrer and waive his terms, because his objection was pending for the opinion of the court, which, if sustaining it, dispensed at once with the demurrer, and the joinder was only contingent, to bo entertained if tho objection were overruled.

The leave to withdraw the joinder was not necessary, as by the decision of the court the demurrer was rejected as against the *terms*of *the*waiver.

In addition to to tho supposed error disposed of, the following are assigned:

1. The court erred in admitting the newspaper containing the advertisement of tho 'Fox River Navigation Company, and also the file of newspapers from July to October, 1838, in evidence.

2. The court cued in admitting in evidence, the contracts entered into between M. M. Strong, plaintiff, and Calvin Frink.

3. The court erred in admitting in evidence, the contract'entered into between M. M. Strong plaintiff and William Longdo.

4. Tho court erred m admitting in evidence the deposition of Thomas J. Ormsbeo.

5. Tho court erred in refusing to instruct on the first point submitted by defendants.

6. The court erred in refusing to instruct on the *second*point submitted by defendants.

*7.*The court erred in refusing to instruct on the third point submitted by defendants.

8. The court erred in refusing to instruct on the fourth point submitted by defendants.

9. The court erred in refusing to instruct on the fifth point submitted by defendants,

*16910. The court erred in refusing to instruct on the sixth point submitted by defondants.

11. The court erred in refusing to instruct on the seventh point submitted by defendants.

12. The court erred in refusing to instruct on the eighth point submitted by defendants. *

13.’The court erred in refusing to-instruct on the ninth point submitted by defendants.

The defendants below wore sued as common carriers; “persons who undertake for hire or reward to transport the goods of such as choose to employ them from place to place.” To make them liable as such, it is certainly incumbent on the plaintiff below, to prove, that they were, at the time of the act complained of, common carriers, within the definition laid down, by such acts on their part, as indisputably fixed that vocation upon them. An advertisement in the public newspapers, notifying the public that they had undertaken the business of common carriers, is legal and. proper evidence. *It*is necessary that the plaintiff should, by evidence, have identified the defendants with the public notice. — ■ The introduction of such evidence, unsupported at the time by proofs showing that the advertisement was the act of the defendants, might appear to be eroneous, but if, in the progress of the trial, proofs are adduced supplying this deficiency, then the decision of the court, in permitting the advertisement to be read in evidence, is relieved from every appearance of objection. The deposition of Qrmsbec, made a part of the record in this case by the exception to the opinion of the court, permitting it to be read ás evidence on the trial, (which exception was not well taken, as we shall show,) proves conclusively that the advertisement was the act of the defendants. The first error assigned is not well taken..

The second and third errorf aro similar, and may be disposed of together. The plaintiff in error assume, that the District Court erred, in permitting two contracts, one between Strong,'plaintiff below, and Calvin Frink, and the other between the said Strong and William Longdo, to be read as evidence on the trial.- It is sufficient for the court to say, that the contracts referred to are not made a part of the record in this case by the bill of exceptions, and that the record presents nothing that will enable us to decide the points raised. Therefore, they are dismissed without further comment.

*170The fourth error assigned against the admission of the deposition of Thomas J. Ormsbee, is not apparent *to*tho court. The rules interrogatories and cross interrogatories, choice of commissioners by the parties, commission, taking of the deposition, certifying, sealing up, and directing the same, arc all unexceptionable. There were two points raised in tho arguments of the error assigned: 1. The deposition was returned some two months after it was taken. *2.*It was delivered by the plaintiff in tho action into the District Court, on the second day of tho term at which the causo was tried, only four days before the *trial. There*is no rule of court orof law, which limits the time of returning a deposition into court, or directs by whom or bow it shall bo conveyed. If a deposition is properly taken, certified, sealed up, directed, and the matter thereof is legal and proper evidence in the case, and it is ready in court before the trial, there certainly can exist no reason in law why it should not be read as evidence. Wo consider these to be the requisites of a legal and adrnissable deposition of a witness residing out of the Territory, under the law and rules of court. 1. Tho entry of a proper rule fora commission. *2.*Due notice thereof to (he opposite party, his agent or attorney. 3. The issuing of a commission under the rule in due form by the clerk, under seal,directed to the commissioners named, accompanied by a certified copy of all the interrogatories on file with tho names of the witnesses to be examined, and a copy of the first, fifth, and sixth rules on the subject of depositions. 4. A compliance of the commissioners with the said fifth and sixth rules in taking the deposition and certifying the same. 5. A compliance with tho said 1st rule in scaling up and directing the same; And 6th. That the matter thereof be legal and pertinent evidence on the issue in the case. Ormsboe’s deposition, by applying this test, is free from exception, and tho District Court did not err in permitting it to be read as evidence on *the*trial.

The fifth error assigned: “That the court erred in refusing to instruct the jury on the first point submitted by defendants.” The first instruction asked is: “ If the jury believe that there is not proof óf a contract between the plaintiff and defendants to carry tho goods in question, other than the general advertisement to the public, then the plaintiff cannot recover.” In deciding this question, wc must consider the nature and extent of the undertaking of the defendants as applicable to the instruction asked. *171The definition of “ common carriers” given, affords an easy solution of the question. “A common carrier is one who undertakes for hire or revv.ard, to transport the goods of such as choose to employ him, from place to place.” This is a general undertaking and embraces every one in the community,and to make it particular as an undertaking with a single individual, it is only necessary that he should apply with such goods as the common carrier lias undertaken to transport, in condition to be transported, at the place designated, to have the goods carried on the terms proposed in lire undertaking; then the contract becomes identical with the person then applying, and it requires no other special contract between (be parties, to subject the common carrier to all legal liabilities as such to tho person applying; *Allen vs. Sewell,*1 *Wen*dell, 237; *Bank of Orange vs. Brown,*3 Wendell, 158. The District Court decided correctly in refusing the instruction.

Sixth error assigned: “ The court erred in refusing to instruct on tho second point submitted by defendants.” The second instruction asked is: “If the jury believe that there is notpvoofof any delivery of the goods in question,by the plaintiff or bis agent to the defendents,and an acceptance by the defendants of said goods,, then tho plaintiff cannot recover.”

This instruction seems to have contemplated a different cause-of action than that set up in the plaintiff’s declaration. This would have been a proper instruction in substance, if the plaintiff bad sought to recover, for negligence in carrying, or a failure to complete the carrying and delivery. This action is brought to recover damages for an absolute refusal to receive and carry; for a violation *in leinine*of tho undertaking of the defendants.— It cannot bo questioned that common carriers are liable for refusing to carry, when properly requested, as well as for negligent carrying, or failure to carry, after the freights have been delivered to them; *2*Show. 328, *Jackson vs. Rodgers.*Chief Justice Jef-fries held, “ that the action Is maintainable as well, as it is against an inn-keeper for refusing a guest, or a smith on tho road, who refuses to shoe a horse, being tendered satisfaction. The sama opinion is held by Chief Justice Holt in *Boson vs. Sandford and others,*1 Show. 104. These opinions are sustained by various decisions referred to in tho cases cited. To-insist that there should be proof, delivery and acceptance, when the gist of the action is an absolute refusal to receive and carry, appears to the *172court to be entirely against the law and reason. The District Court was correct in refusing the instruction.

Seventh error assigned: “The court erred in refusing to instruct on the third point submitted by defendants.” The third instruction asked is: “If tho jury believe from tho evidence, the goods in question remained in possession of the agent of the plaintiff, and.nover were in the possession of the defendants as carriers, then the plaintiff cannot recover.” It is so apparent that it seems scarcely necessary for the court to remark, that tho reasoning and authority which disposes of the second instruction, apply equally to this. If our opinion is sound on that, we must concur with the District Court in the propriety of refusing this also.

Eighth error assigned: “ The court erred in refusing to instruct on the fourth point submitted by defendants.” The fourth instruction asked is: “If the jury believed from tho evidence, tho goods in question were deposited by the plaintiff or his agent in the ware house of Bruce, a third person, and that Bruce had a lien of charges on said goods, the defendants were not bound to carry them in the absence of a special contract, unless the plaintiff show, that said lien for charges was previously discharged, and cannot recover.’5 This instruction also grows out of a misapprehension of the plaintiff’s true cause of action. Under a different state of case averred by the plaintiff and raised in the testimony, this instruction might have boon proper. Considering tho true cause of action and the facts presented on the record, it would not have been a proper instruction. If no other reason existed, the one assigned by the court was sufficient: “Because the *supposition*of charges is against the evidence in the case.” The rale is, that a refusal to instruct on abstract principles of law, not presented by the record, nor by the facts in the case, is not error, however correct the principle, applied to a proper case. Without claiming that the court should respond to the facts in a case, it must necessarily, respond so far as to decide, whether a principle' of law is raised by tho facts, that tho case may not *be*embarrassed by matters entirely foreign. If the charge had been given, would the result have been different, presuming that no other than legal evidence was produced at the trial? Ormsbee’s deposition is the only evidence presented in the record for the inspection of this court; from this evidence, with the instruction, no other finding *173of the jury could have resulted. The District Court properly refused the instruction.

The ninth error assigned: “ The court refused to instruct on the fifth point submitted by defendants.” The fifth instruction asked is: “If the jury believe, from the evidence, the defendants assumed to carry the goods in question for a certain price, and the plaintiff has not shown a compliance with the terms of such assumed contract, by tendering or paying said price, then the plaintiff cannot recovei.” The court refused to give the instruction, and referred to the evidence in the deposition. This instruction is like the one just disposed of, upon which we have expressed an opinion.

The tenth error assigned: “The court erred in refusing to instruct on the sixth point submitted by the defendants.” The sixth instruction asked for is: “If the jury believe from the evidence, that the defendants did not assume to carry the goods in question, but merely neglected and refused to carry the said goods, the defendants are not liable under a general advertisement to carry for the public, and the plaintiff cannot recover.” We consider this ground of error, disposed of, by our opinion on the first instruction asked for by tbs defendants below, and will add nothing further to what is there laid down.

The eleventh error assigned: “ The court erred in refusing to instruct on the seventh point submitted by the defendants.” The seventh instruction asked is: “If the jury believe from the evidence that no freight boats passed' up Fox River after the plaintiff’s goods were deposited in Bruce’s warehouse and not in the possession of the defendants, then the plaintiff cannot recover.” Admit that the facts were as assumed in the instruction,they would not amount to a defence, oven in a case to which they might apply. That boats *could not possibly pass up Fox River*at the time of the request made by tire plaintiff, for causes entirely out of the control of the defendants, would excuso them for refusing to carry. The fact that they *did not pass up,*is a very different thing, and more allied to the plaintiff’s cause of action, than to the defence. The court properly refused the instruction.

The twelfth error assigned: “ The court erred¿n refusing to instruct on the eighth point submitted by defendants.” The eighth instruction asked is: “ If the jury believe from the evidence, that there was no special contract to carry the goods in *174question, and no delivery of the same to the defendants *by thú*plaintiff, and that there was, only a qualified promise to carry the same if the defendants were able to do so, then the plaintiff cannot recover on an allcdgcd breach of contract mido to the public."'’ There arc three distinct matters embraced in this instruction: — ■ *No special contract-, no delivery; and a qualified promise to carry.*The two former have been- disposed of against the error assigned, and the latter branch of the instruction was given as asked, with the remark by the court, that the facts show a different state of case. The language of the court in the instruction, “ if there were only a qualified promise to convey the goods, the plaintiff cannot recover on a general promise,” fixes, the character of the instruction, and show conclusively, that the court intended, the jury should respond to the facts, to which the principle of law was applicable: And the intimation in this instance, does not infringe the rule, in its most rigorous sense, that the court should respond to the law, and the jury to the facts.

Jacksok and Coiliks, for plf’ts in error.

Bsraw and Whitow for def’t in error.

The thirteenth error assigned: “ *The*court erred in refusing to instruct on the ninth point submitted by defendants.” The ninth instruction asked is: “ The court is requested to instruct the jury, to throw out of their consideration, all evidence proving a special contract of the defendants with the plaintiff, in relation to the carriage of the goods in question, ns the plaintiff has not al-ledged in his declaration, any such contract with him.” The court refused so to instruct,rcmaiking: “as the law,on the undertaking of the defendants as set forth in their advertisement, implies a contract; and as the court supposes, from remarks,made on the deposition of Orrnsbce, objecting to the same, for the reason that it was evidence of a special contract, that the instruction asked for is to rebut or reject that evidence.” The rule is, that a deposition or witness should be objected to at the time' of offering to read the deposition or swear the witness. , If once admitted, the court cannot take either from the jury by instruction. The court may instruct the jury to disregard evidence or testimony, on the ground of interest developed on the trial. The court properly refused the instruction.

It is the opinion of this court, that the judgment of the District Court of Dane county be affirmed with costs.