WHERE COMMON CARRIER STRANDS HIS VESSEL ON BAR recently formed in the ordinary channel of a navigable river, he is liable for the loss thereby occasioned to the goods on board, although he was ignorant of the existence of such bar.

ACTION brought against the defendants as common carriers. The opinion states the case.

B. H. Smith, for the appellants.

Miller, for the appellee.

By Court, DANIEL, J. By the common law a carrier is treated as an insurer against all damage to, or loss of, goods intrusted to him for transportation, except such as may arise from the act of God, the act of the enemies of the country, or the act of the owner of the goods. In the case of Murphy, Brown & Co. v. Staton, 3 Munf. 239, it was decided by this court that the owners of boats engaged in the upper navigation of James river were subject to this rule, and liable for losses arising from the dangers of that navigation. It was also further decided in that case that if a loss happens, the onus lies on the carrier to exempt himself from liability; and that his defense is not sustained by showing that the navigation is attended with so much danger that a loss may happen, notwithstanding the utmost efforts to prevent it, and that the person conducting the boat possessed competent skill, used due diligence, and provided hands of sufficient strength and experience to assist him.

The propriety of the decision, it is believed, has not been questioned. We have at least no report of any effort to disturb it. The case may therefore be regarded as settling that the liabilities of common carriers upon our navigable streams are fixed by the common-law rule, and that losses arising from the ordinary dangers of the navigation, however great and however carefully guarded against, do not fall within the exception.

It is contended by the plaintiffs in error, that the evidenco offered by them in the court below, tended to show that the loss sustained by the plaintiff was occasioned by such an extraordinary peril as negatived all legal inference of negligence on the part of the carrier, and made the loss referable to the act of God; and that the instruction given by the court at the instance of the plaintiff was erroneous and prejudicial to them.

It appears from the bill of exceptions, that the plaintiff having proved that he delivered at the Kanawha Salines in the county of Kanawha, on board of a steamboat in the charge of the defendants, who were the owners thereof, and common

carriers, a quantity of salt, to be carried on the said boat to Nashville, in the state of Tennessee, for the transportation of which the defendants were to receive a stipulated freight per barrel; and that the said boat freighted with said salt proceeded on her voyage as far as to the confluence of the Elk river with the Kanawha, when she stranded, sprung a leak, and filled with water, whereby a portion of the salt was wholly lost, and the balance much damaged and impaired in value: and the defendants having then introduced evidence tending to prove that the water in the river was in good navigable condition; that the boat was conducted through the ordinary channel for steamboat navigation; that some eight or ten days before the boat proceeded on her voyage there was a rise of Elk river, a tributary of the Kanawha, and the ice gorged at its mouth, and a bar of sand and gravel formed in the channel along which the boat had to pass, and that the officers and crew of the boat were ignorant of the formation of the bar when the boat stranded upon it; and that the officers and crew used their efforts to save the salt after the boat had so stranded: the plaintiff moved the court to instruct the jury upon the law governing the case: whereupon the court instructed the jury that if they believed from the evidence that the boat was stranded by running upon a bar previously formed in the ordinary channel of the river; but that the existence of the bar might by human foresight and diligence have been ascertained and avoided, although the navigators or those in charge of the boat were ignorant of its existence at the time the boat ran upon it, the defendants were liable for the loss (if any) of the salt freighted by them on the boat, occasioned by its stranding; although the jury might be satisfied that the defendants, after the boat stranded, used all the means within their power and control, to preserve the freight on board the boat from being lost or injured.

Among the strongest authorities cited in behalf of the plaintiffs in error are the cases of Smyrl v. Niolon, 2 Bailey, 421 [23 Am. Dec. 146], and Williams v. Grant, 1 Conn. 487 [7 Am. Dec. 235]. In the former it was held that a loss occasioned by a boat's running on an unknown "snag" in the usual channel of the river, is referable to the act of God, and that the carrier will be excused; and in the latter it was said that striking upon a rock in the sea not generally known to navigators, and actually not known to the master of the ship, is the act of God. And other authorities go so far as to assert that if an obstruction be secretly sunk in the stream, and not being known to

the carrier, his boat founder, he would be excused. The last proposition stands condemned by the leading cases, both English and American. In the case of Forward v. Pittard, 1 T. R. 27, Lord Mansfield says, that "to prevent litigation, collusion, and the necessity of going into circumstances impossible to be unraveled, the law presumes against the carrier, unless he shows it was done by the king's enemies, or by such an accident as could not happen by the intervention of man, as storms, lightning, and tempests." The same doctrine is strongly stated in McArthur v. Sears, 21 Wend. 196, where it is said, that "no matter what degree of prudence may be exercised by the carrier and his servants; although the delusion by which it is baffled, or the force by which it is overcome, be inevitable; yet if it be the result of human means, the carrier is responsible."

These cases clearly restrict the excuse of the carrier for losses occasioned by obstructions in the stream, to such obstructions as are wholly the result of natural causes. And the cases in which the carriers have been exonerated from losses occasioned by such obstructions, as Smyrl v. Niolon and Williams v. Grant, before mentioned, will, I think, upon examination, be found to be cases in which either the bills of lading contained the exception of the perils of the river," or in which that exception has been confounded with the exception of the "act of God." In the case of McArthur v. Sears, a distinction between the two phrases is pointed out. It is shown that the exception "of dangers or perils of the sea or river," often contained in bills of lading, are of much broader compass than the words "act of God;" and the case of Gordon v. Buchanan, 5 Yerg. 71, is cited with approbation, in which it is said that "many of the disasters which would not come within the definition of the act of God, would fall within the former exception; such, for instance, as losses occasioned by hidden obstructions in the river newly placed there, and of a character that human skill and foresight could not have discovered and avoided.”

In a note to the case of Coggs v. Bernard, in the American edition of Smith's Leading Cases, 43 Law Lib. 180, the American decisions are collared and reviewed, and a definition is given to the expression "act of God," which expresses, I think, with precision, its true meaning. The true notion of the exception is there held to be "those losses that are occasioned exclusively by the violence of nature; by that kind of force of the elements which human ability could not have foreseen or prevented; such

"The prin

as lightning, tornadoes, sudden squalls of wind." ciple that all human agency is to be excluded from creating or entering into the cause of mischief, in order that it may be deemed the act of God, shuts out those cases where the natural object in question is made a cause of mischief, solely by the act of the captain in bringing his vessel into that particular position where alone that natural object could cause mischief: rocks, shoals, currents, etc., are not by their own nature and inherently, agents of mischief and causes of danger, as tempests, lightnings, etc., are."

The act of God which excuses the carrier, must therefore, I think, be a direct and violent act of nature.

The rule, it is insisted, is a harsh one upon the carrier, and it is argued that the court should be slow to extend it further than it is fully sustained by the cases. However harsh the rule may at first appear to be, it has been long established, and is well founded on maxims of public policy and convenience; and viewing the carrier in the light of an insurer, it is of the utmost importance to him, as well as to the public who deal with him, that the acts for which he is to be excused should have a plain and well-defined meaning. When it is understood that no act is within the exception, except such a violent act of nature as implies the entire exclusion of all human agency, the liabilities of the carrier are plainly marked out, and a standard is fixed by which the extent of the compensation to indemnify him for his risks can be readily measured and ascertained. The rule, too, when so understood, puts to rest many perplexing questions of fact, in the litigation of which the advantage is always on the side of the carrier. Under this rule the carrier is not permitted to go into proofs of care or diligence, and the owner of the goods is not required to adduce evidence of negligence till the loss in question is shown to be the immediate result of an extraordinary convulsion of nature, or of a direct visitation of the elements against which the aids of science and skill are of no avail.

So understanding the law, I do not perceive how the defendants in error could have been prejudiced by the instruction complained of, and am of opinion to affirm the judgment.

The other judges concurred in Judge Daniel's opinion.
Judgment affirmed.

CABELL, P., and BROOKE J., absent.

LIABILITY OF CARRIER ON INLAND RIVERS: See Collier v. Valentine, 49 Am. Dec. 81, note 87; Steamboat Lynx v. King, Id. 135.

COMMON CARRIERS, LIABILITY OF, GENERALLY: See Fish v. Chapman, 46 Am. Dec. 393, note 405, where other cases are collected.

ACT OF GOD, WHAT IS: See Williams v. Grant, 7 Am. Dec. 235. See also Plaisted v. Boston & K. S. N. Co., 46 Id. 587, and note 592.

HUDGIN V. HUDGIN'S EX'R ET AL.

[6 GRATTAN, 320.]

DEVISEES NOT MADE PARTIES TO SUIT BROUGHT BY CREDITOR AGAINST EXECUTOR to recover a debt due to him from the testator, and, in the event of there being no personal assets, to charge the same on the realty, are not bound by the decree in such suit directing a sale of the land devised; and the sale made under the decree, and the deed issued pursuant thereto, will not pass the legal title to the purchaser.

WHERE TESTATOR CHARGES ALL HIS ESTATE WITH PAYMENT OF DEBTS, if after the personal estate is exhausted there remain a debt against the estate, it will be a charge on the real estate.

PURCHASER IN GOOD FAITH AT SALE OF LAND UNDER DECREE against an executor to satisfy a debt of the testator is, in the event of the disaffirmance of the sale, entitled to be subrogated to the rights of the creditor to the extent that the purchase money received from him has been applied to the satisfaction of the testator's debts, and to charge the land devised to that extent. But the rents and profits received by him while in possession should be set off against the amount of his claim. CREDITOR OF TESTATOR, WHOSE Debt has beeN PAID out of the proceeds of a sale of the decedent's land, which sale is afterwards disaffirmed, is a competent witness to prove the amount of his debt, where he entered into no covenants for the sufficiency of the title, is not chargeable with any fraud, nor in any way liable to the purchaser, the executor, or the devisees.

WHERE EXECUTOR HOLDS IN HIS HANDS MONEY DERIVED FROM SALE of lands of his testator, which is disaffirmed, the purchaser at such sale is entitled to a decree against him for the amount so held.

BILL in chancery. William Soper died in 1797, leaving a will which was duly recorded, and of which John Hudgin was the executor. By this will be directed that after his debts were paid his whole estate should be divided among his children. In 1798, Francis Armstead instituted the chancery suit mentioned in the opinion. The amount found in that suit to be due to said Armstead from the estate of said Soper was two hundred and eight pounds ten shillings eleven and three fourths pence, with interest at six per cent. from June 1, 1798. The commissioners appointed by the decree reported that they had sold the land for four hundred and twenty-four pounds seventeen shillings and sixpence. Their report was confirmed, and a final decree made. The sale was made to Jesse Hudgin, who