
    Gordon & Walker against Little.
    Where there is a rule 0f Court, for-read, if the witness lives within forty ccmrt°unL?ss he be sick or tend, a depowit" lives within taken°under a ^ plaintiff, who chooseto U3e of it, cannot be read by the f^witness^ faas been sufparty, f^p^fthat he is sick or tendí*t0 at"
    tain and crew 1?nd ?avisa’ Uon, is not evidence. Evidence of usage or custom, fixing the construction of the words,Ci inevitable dangers of the river,” in a bill of lading for the transportation of goods by inland navigation, is admissible.
    An usage or custom, varying the liability of common carriers by water, from that of the common law, may be proved.
    In Error.
    WRIT of error to the Common Pleas of Allegheny " " county, in an action brought by John Little, the plaintiff below, against Gordon Si? Walker, the plaintiffs in error, who were defendants below. '
    The plaintiff shipped a quantity of goods on board a keel boat, belonging to the defendants, to be carried from Pitts-burg to Hopkinsville, in Kentucky, for which the plaintiff was to pay them a stipulated freight. The agents of the defendants signed a bill of lading, by which they promised “ to deliver the goods in good order and condition, and without delay, the inevitable dangers of the river only excepted, to colonel A. Boyd, Byers' Landing, on the Cumberland, he paying freight, at one dollar fifty cents per hundred pounds.” The day after the goods were taken on board at ° , ■ ,. . , ° and while the boat was lying at the landing, she sunk, m consequence of striking against a log which was concealed underthe water. By this accident, the plaintiff’s goods suffered damage j to recover a compensation for which, the sent action was brought. The declaration contained two counts: one on the special contract, and another in which the defendants were charged as common carriers. On the trial, the defendants offered in evidence the deposition of Joseph 'Woods, regularly taken by the plaintiff under a rule of Court. By a rule of the Court of Common Pleas of heny county, the deposition of a witness who resides within J J1 r forty miles of the Court, cannot be read in evidence, unless he be sick or unable to attend; and as Woóds resided in the county, and had not been subprenaed by either party, and the’deposition had not been offered in evidence by the plaintiff, the Court would not permit it to be read. A bill of exceptions to the Court’s opinion, was. thereupon tendered by the counsel for the defendants. The defendants offered in evidence a paper, purporting to be a protest or deposition of the captain, and several of the men employed on board the boat, m which the goods were shipped, taken the morning after the loss took place. The paper was offered by the defendants, only so far as related to the evidence of several of the men, who, they alleged, soon after the date of it, had departed from the State, and ’ whose places of residence were unknown. To the admission of this pa-' per, the counsel for the plaintiff objected; and it was rejected by the Court. The defendants then proposed to. prove, by the testimony off witnesses, the existence of a general,usage or custom in relation to the liability of carriers on the western waters; and in pursuance of this object, put to a witness who was under examination, the following question, “ Is there .any general usage or custom, in this place, in relation to the liability of boatmen, which amounts to an implied contract, and what is such usage or custom 1M The Court overruled the question, and would permit no evidence to be given of any custom or usage in relation to the liability of carriers ; but inasmuch as a written contract had been produced, and was the foundation of the action, they permitted the witness to give evidence as to what was the common and commercial meaning of the words “ the unavoidable dangers of the riverf as established by general usage.among merchants, shippers, freighters, and boatmen. The opinion of the Court, in rejecting the evidence of a general usage in relation to the responsibility of carriers on the western waters, formed the subject of a third bill of exceptions, which was tendered by the counsel for the defendants,
    At the close of the trial, the President of the Court (Wilkins) delivered an elaborate charge to the jury, which was excepted to by the counsel for the defendants. The character of the exception renders it necessary to introduce into this report nearly the whole of the charge :
    Charge. — I shall pursue this inquiry in the following order :i—
    1. The nature and extent of the liability of a carrier at common law, upon general principles, without regard to the written contract — the receipt annexed to the bill of lading.
    2. The extent of the liability of the defendants, under the engagement contained in that receipt.
    
      3. Whether he has fulfilled that undertaking, or in other words, is he responsible for the accident which produced the damage to the plaintiff’s goods.
    As to the first, it seems to me, that upon general principles, carriers by water upon our navigable rivers, are answerable to the same extent, as carriers are by the common law of England.
    
    By the common law, a carrier is in the nature of an Insurer ; and undertaking for hire to carry goods, he is bound to deliver them, at all events, unless they should be damaged or destroyed by the act of God, or the common enemies of the country, even though the jury should believe they were destroyed without any negligence of his. It is right, that this responsibility should be imposed upon the carrier, whether by land or water, whether a wagoner or a bargeman. The justice and propriety of the doctrine strikes us at once, when tve consider the nature of the trust and confidence reposed in them: you trust them with goods of great value, entirely to their own care, in your absence, and to carry to a distance ; you place all you are worth in their hands,— your wealth or your poverty, depends upon their conduct and responsibility. The rule therefore is a very strict and severe one. It renders the carrier liable for a loss by accidental fire, although it may have commenced at a distance, and rage with irresistible violence. He is also liable for a loss by robbers, however great their force or numbers; so for a loss by a thief, however unexpected or extraordinary his skill and secrecy.
    A carrier is answerable for goods, from the moment they are received into his custody. A promise to carry, is a promise to keep safely. From that moment he is bound to the performance of various duties, such as to find a safe and fit place ag a ianc[ing? ancj a position for his boat. The vessel should an£l staunclb furnished with all necessary tackle, and careful and skilful hands for the voyage. These hands should have diligence to take care of her, and competent ability to navigate her. An accident, after the vessel sails, or at the landing, after the goods are delivered and before the vessel sails, in consequence of a deficiency in any one of these particulars, would render the freighter liable. The goods, when.received, should be properly stowed away, and arranged, by the master or freighter, unless there should exist some particular and known custom of the place to the contrary. And when the goods are put on board, there should be a sufficient number of careful and skilful hands provided, to take care of them, and to guard the boat from accident.
    So strict is this general common law rule, that it makes all those things negligence, which do not proceed from the act of God or the common enemies of the country; and makes this the only question, “ Could human effort and sagacity have prevented this accident ?”
    It is easy to understand, what is meant by the common enemies of the country, but it is more difficult (under such various circumstances may losses of this kind happen!) to ascertain what is meant by the law, as the “ act of God,'” because every thing proceeds from him; no loss can happen without his act and permission; “ not a gust of wind blows, or a flash of lightning gleams, without the knowledge and guidance of a superintending mind.” The introduction of these words into judicial proceedings, and as a technical phrase, may not have been very decorous, and may border on profanity, but long usage and repeated decisions, have rendered their legal sense and meaning sufficiently perspicuous. .
    The expression means something in opposition to human acts and human means. It is such an act, occasioning the accident, as could not happen by the intervention of man; such as an earthquake, a tempest, lightning, a sudden gust of wind, &c.
    This act of God must be immediate and not remote, in order to excuse. For instance, a sudden gust of wind driving a boat skilfully navigated against the pier of a bridge,— or the sudden falling away of the wind, when a vessel is properly tacking in a river or in some narrow and difficult pass, — are excusable accidents, proceeding from the wisdom of divine providence. But when the damage ensued from one vessel running upon the unseen anchor of another, the carrier was made, liable for the accident, not having proceeded from a natural cause.
    And further, gentlemen, if at the time of ttye happening of the act of God, there is any negligence on the part of the carrier, — if neglect by the freighter accompanies the providential interposition, the carrier, in these cases, is liable; his neglect depriving him of the benefit which he might otherwise have derived from the act of God. For instance, if the boatman does not provide and adopt all due precaution, to guard against an approaching storm, does not provide for and use additional diligence to guard against an approaching dark and windy night, or in the case already mentioned, of a boat being suddenly driven bv a gust of wind against the pier of a bridge, at a moment when imprudently navigated, ■ — in these cases, the carrier is liable. Can he allege the act of God to be against him, when he himselt has not used the human means which the nature of his undertaking bound him to use ?
    
      At common law, then, the boatman who carries for hire, is responsible for a loss by accident, or force, however inevitable or irresistible, if it be occasioned in any other way than by ihe act of God, or the public enemy, or, in other words, if human means could have avoided the cause of the accident.
    
    What is negligence, und -r this general principle l This is worthy of inquiry. i\iany things are ascribable. to the fault or negligence of man, although no actual blame may be imputable to him. Every thing is negligence which does not proceed from the two causes I have mentioned, — the act 'of God or the public enemies.
    Again, unless the carrier shews that the loss happens in. one of these two ways, the law presumes against the carrier.
    When negligence ór a want of proper precaution is proved, the legal presumption is, that it was the cause of the accident.
    
      Upon this general principle> I have no hesitation in giving 
      
      it as my opinion, that the defendants are liable, according to the evidence of the case.
    
    The second question is, the extent of the liability of the defendants, under the- engagement contained in the receipt ¡ or, what alteration does this engagement make in that common law liability of the defendants, of which I have been, speaking? It is true, that the carrier may, by the terms of his agreement or receipt, restrict or modify his liability. It is done, every day, in England, and this country. This responsibility may be limited without writing, if notice be duly given. Here let me observe, that in cases on the high .seas, and upon our navigable rivers, or upon our mountains, the rules of law, as to the liability of carriers, are the same.
    The undertaking is, that the defendants “ will deliver in like good order-and condition, and without delay, the unavoidable dangers of the river only excepted.” The material, important, and exempting words here are, “ the unavoidable dangers of the river.” These words are substantially the same (and the experienced captain Bowers testifies, that according to the commercial usage and meaning of the country, they are the same) as the words introduced into marine bills of lading, “ the perils of the sea excepted.” Now, in order to ascertain how lar these words lessen or fritter away the common law or general responsibility of the carrier, let. us examine what is the judicial meaning or interpretation given to these words, the “ perils of the sea?'’
    
    
      But before we enter into this examination, it will be necessary to speak of the evidence which has been adduced by the' defendants, in their defence, upon their attempt to prove a general commercial usage, as to the meaning of the phrase, “ unavoidable dangers of the river.” The more I reflect upon the subject, the more 1 am convinced of the propriety of having admitted that evidence. It was according to precedent. It was simply admitting proof of the general and received meaning and acceptation amongst Pennsylvanians and commercial strangers, of an ambiguous 'and mercantile phrase. However, when the evidence was closed upon this point, my mind was relieved from one difficulty which, I then thought, it would have to encounter. Because my opinion, founded upon that evidence, , is, that no such general and well understood usage has been proved, as will give a meaning to these 
      
      words, different from what their fair construction imports, and different from the judicial interpretation given to words substantially the same, and used upon similar occasions.
    
    What is necessary to a usage ? What is evidence of that usage, particularly, in a case likv, the present, when it is offered to explain a written contract ? It should be reasonable, weiTunderstood, and acquiesced in ; it should be general, well known, and of long standing; but, above all, it should be well settled. Now suppose, for a moment, a general usage has been proved, how is the testimony ? [Here his Honour repeated, and gave his views of the evidence.] Now what does all this come to ? Why, that there is really no material difference between the meaning of these words, according to our western construction, and the meaning of like words in a bill of lading at sea, and in judicial cases on the subject. If the witness mest experienced at sea, and having great experience upon our inland navigable rivers, is to give us the rule, these words “ unavoidable dangers of the river f and “perils of the sea,” have the same meaning. Then, as we have the law laid down to us, and we know judicially what is the meaning of the words, “ perils of the sea,” let us see how far their introduction into a receipt, narrows down, and limits, the liability of the carrier.
    In general, the construction of doubtful words in a deed, or written instrument, is left to the Court, but here we have called in to our aid, the usage of the trade, and have endeavoured, from merchants and shippers, to obtain a proper knowledge of the meaning of the words. I shall then endeavour to aid the jury in giving a proper construction to this promise, by giving my opinion and views of the subject.
    In my opinion, “ the perils of the sea,” “ the unavoidable dangers of the river f or “ the unavoidable accidents of the river f are, in substance, the same, and are entitled to the same construction.
    These phrases denote the natural accidents peculiar to these elements, the sea or a navigable river. The words, “peril” and " danger” have precisely the same meaning,— they are synonymous words. Without the expressive and energetic word “unavoidable” the language in this receipt, is as strong as the expression contained in a bill of lading at sea. But in the engagement of the defendants before us. you have inserted a word, which is not an idle and unmeaning one, and which would make the engagement the same, as if read, “unavoidable perils of the- river.” I therefore lay it down to you, that in any case of loss occasioned at sea, where the freighter would be liable, when his bill of lading contains the exception of “ the perils of the sen,” so would the carrier upon our rivers be liable, who excepts “ the unavoidable dangers of the river.” The cases are parallel and. alike, and the same law applicable to both.
    In what cases, then, is the carrier at sea, who guards his engagement with the exception oí “ the perils of the sea,” liable to the owner for a damage to the goods ? I am of opinion, he is not liable, in all those pases, where the common carrier would be responsible, upon the general common law principle of which I have spoken.
    Where there is this exception in the receipt, the carrier is not liable in some cases, although the accident and loss may not have happened by the act of God or the enemies of the country, provided there is no neglect on his part. The liability is narrowed down, and is not dependent upon the broad common law principle, where there is no written exception of this kind. But where, under this rule, there has been neglect, if negligence accompanies the peril, when the loss happens, the injury will be ascribable by the law to that negligence, and the party will not be excused.
    I will give you some instances, when the carrier excepts the ■ perils of the sea, where he has not been held liable. When his vessel, upon the high sea, has been attacked and overpowered by pirates, he is not responsible for the loss, because this was one of the *<perils of the sea.”
    
    So where the vessel in which the goods were carried, was run down in day-light, and not in a tempest, by one of two other vessels, where there was no neglect or want of skill. upon the part of the captain who sailed the ship.
    So if a ship under cautious guidance, and skilfully managed, should strike against an unknown rock, or upon an unknown shoal, and the goods be lost or damaged, the circumstances under which the event happens, will be left to the jury, in order to ascertain whether it happened by a peril of the sea. If it was an unknown rock, and the captain had no reasonable means of avoiding it, or if the shoal had been suddenly and recently formed, it would be such a peril of the sea,, as would exonerate the freighter.
    These are cases wherein the harsh principle of the com- ' mon law does not apply; and therefore this case is not to be decided by that severe principle. But where one vessel, not seeing the anchor of another, ran upon it, was injured, and the cargo damaged, the captain was liable, this not being a “ peril of the sea.”
    
    Thirdly. Now to apply these principles to the present case, and to ascertain, whether the defendants have fulfilled their undertaking; or in other words, aré they responsible for the accident which produced the damage to the plaintiff’s goods ?
    Although this accident was not, in legal acceptation, the-act of God or the public enemies, was it occasioned by the “unavoidable dangers of the river” unaccompanied by any neglect of the boatmen ? If you think so, the strict principle of the common law does not apply, and the defendants ■are exonerated.' But if you think it was not occasioned by • the act of God or “ the unavoidable dangers of, the river,” then the law presumes the neglect of the boatmen, and they are liable. ■ It is incumbent on the defendants, to .shew and satisfy you, that the accident proceeded from one of the causes which would excuse them in law.
    If this much talked oí root sunk the boat, was it an act of God (in legal acceptation) or one of the unavoidable dangers of the river? If you think it was, then be careful to examine whether or not there was any neglect or want of due care on the part of the boatmen. If there was, the root, although it may be called an unavoidable danger, will not excuse.
    In applying this principle, inquire, was it to the boatmen, or hands engaged about this boat, an unknown danger or obstacle ?
    Was due and proper care taken to discover this root or danger, or when it was known, to avoid it ?
    Were due care and diligence used, to ascertain whether the boat was safely moored for the night ?
    Were the boatmen bound to feel under a large boat like this, with a cargo pn board, for dangers or perils of she river ?
    
      As the river was upon the fall, and as some dangerous object, a log on a rock, was discovered by the boatmen themseLves, upon the very day before the loss, and u,,on which this same boat herself had fastened, was th.ere due diligence, when she was left at night, to avoid this object, and a recurrence of the same danger ?
    Negligence or no negligence, skill or no skill, are questions of fact, for your decision. It is possible, we might have no right, and ought not to obtrude our opinion upon you. However, our views of some of these facts may not be unacceptable to you, although by no means binding upon you.
    It strikes us as a strange thing, that without a neglect or culpable defect somewhere, this boat should be suffered to sink at the landing, with boatmen and others convenient to assist, upon a clear morning and in calm weather, before, it might be said, she was beginning to encounter the perils or unavoidable dangers of the river.
    This barge had from twenty-six to thirty tons of goods on board, and she is left in the care of three hands, in a great measure, if not entirely, unknown to Mr. Reno^ythose names, even now, upon this interesting question, he cannot recollect. None of them appear afterwards to have been employed. Two of them went down in another boat; were intemperate, and dismissed.
    This log must have remained .there a considerable time.
    Mr. jHart says it was black, water soaked, and would not float. There is no evidence, to induce us to believe, it had been very recently brought there by a freshet. ' By the testimony of Mr. Davis and Mr. Beers, it was within a foot or eighteen inches' of the surface of the water.
    The captain of the boat was absent. Was it a want .of due and proper care, not to feel alongside, to ascertain the depth of the water ? Why not go a little farther, to ascertain if all was safe under her keel, particularly as it was known there was something dangerous thereabouts ?
    And lastly, the degree gf care and diligence of the men left on board, may be ascertained by the circumstance, that the danger appeals to have made considerable progress, before the alarm was given. Was the danger discovered, as soon as it would have been, with proper care ?
    
      It you should be of' opinion, that Mr. Reno used all due care when he left the boat in the evening, it is necessary for you to, go further, and inquire whether the hands he left behind him did their duty also. For if he had left twenty hands there, and they had, for want of proper care and vigilance, when the river was falling, suffered the keel of- the boat, upon a bold shore, to get aground and to fill, the defendants would be answerable.
    We have given our opinion of the law, which will doubtless be reviewed by asuperior Court.
    You judge of the facts. Was there a contract and a loss ?
    How was that loss occasioned, — by an unavoidable danger bf the river, or by a want of proper care ? '
    The cause was argued at September Term, 1821.
    
      Baldwin and Ross, for the plaintiffs in error.
    The deposition of Joseph Woods was taken by the plaintiff, and the witness was cross-examinéd by the defendants. Thus, the deposition became the property of both parties. If the plaintiff did not mean to use it, he ought to have given notice of his intention to the defendants, that they might subpoena the witness ; and having neglected to do so, he ought not to be permitted to object to it, because that form has not been complied with.
    The paper rejected by the Court of Common Pleas, was offered, only so far as related to the testimony of the boatmen' who had left the State, and could not be'found. It is perfectly analogous to the, protest of seamen, a species df evidence which has uniformly been received in Pennsylvania, ever since the year 1762. 1 Dall. 6. Id. 10. Id. 317. 2 Dall. 196. 4 Dall. 327. Id. 456. 4 Yates, 117. 1 Binn. 40. 3 Binn. 228. Id. 257. 2 Serg. & Rawle, 134. A carrier stands in the situation of an insurer, and therefore a protest should.be evidence for a carrier, wherever it would be for an insurer. In England, the protest of a master is not evidence while he is living; but id Pennsylvania, a witness, who is out of the State, is considered, for the purposes of evidence, as dead. No good reason can be assigned, why there should be a difference between losses at sea and on rivers, as to their modes of proof. It is as much for the benefit of trade, and the convenience of commercial men, tha£ this species of evidence should be received in the one case as in the other. And that it is highly beneficial, in both cases, cannot be doubted, because, it secures evidence which would otherwise, from the nature of the pursuits of the witnesses, be extremely precarious; and truth is most to be expected from testimony delivered while the transaction is recent, and fresh in the memory. If, as was said by Lord Mansfield, the navigation of the river Humber is a sea voyage, how much more is a voyage from Pittsburg to the Telloiv Stone river, to be regarded, in that light, comprehending a distance of three thousand miles, over which cargoes to an immense amount, are sometimes carried.
    The usage offered to be proved, is the usage of the western watei's, and is understood to enter into the body of all contracts for the carriage of goods on our navigable rivers. The idea of responsibility on the part of the carrier, for any thing but negligence, never enters into the contemplation of either party. -The rule by which the compensation is regulated, strongly confirms this position. The transportation of goods is paid for exclusively by the weight, without regard to the value, and the same amount is paid, whether the property is insured or not. Until the reign of Elizabeth, carriers, in England, were liable only for negligence. Jones on Bailments, .102, 103. And the reasons of policy which induced a change of the law in that country, not being applicable to Pennsylvania, the law of England, as it now exists, ought not to be extended here. In practice and common understanding, it has never been received. In the case of Carson v. Blazer, 2 Binn. 475, the difference between our rivers and those of England, with respect to fisheries, was fully recognised ; and Judge Yeates was of opinion, that a custom, that the owners of the banks of the Susquehanna should have an exclusive fishery opposite their shores, of the existence of which custom he did not'entertain a doubt, was good. The custom and usage of a place govern the contracts made in that place. Stultz v. Dickey, 5 Binn. 285. And as thei'e was a count in the declaration, charging the defendants as common carriers, as well as one on the special contract, the defendants ought to have been permitted to give evidence of an usage, varying the liability of carriers on the western waters, from that of common carriers in England. .
    The chare-e, it is admitted, is to be taken altogether, and . , , . „ 1111 not by detached parts. But viewing it as a whole, the language of the Court was as positive and absolute as could be devised, and was calculated to mislead the jury, not only by the erroneous legal doctrines it contained, but by impressing them with the idea, that, matters of fact which belonged exclusively to the jury, were matters of law which the Court had determined. The jury must have supposed that the law was clearly against the. defendants, and that there was nothing left for them to decide. . The first case on this subject which came before the Court, was Burd v. Lessee of Dansdale, 2 Binn. 80, in which it was held, that if a J udge give an erroneous opinion on matters.of fact, it is not the subject of a bill of exceptions. This case was succeeded by that of Wright v. Lessee of Small, 4 Yeates, 562, in which it was determined, that it was error io inform the jury, that the cause was with either party, though they were afterwards told that they might find a verdict according to their own opinions. This case and that of Sampson v. Sampson, 4 Serg. & Rawle, 329, overrule Burd v. Dansdale’s Lessee, and result in this position, that wherever, by the charge, the jury are embarrassed and left in doubt, whether the Court has decided the cause as matter of law or not, it is error. The whole tenor of the charge was calculated to produce this effect; and several passages were so strongly expressed, as completely to place the cause beyond the jurisdiction of the jury. In one part, they, were informed, that there was no evidence to prove the usage contended for by the defendants ; which was going much farther than Sampson v. Sampson, in which the language of the Court was, that the evidence of the defendant was too loose to entitle him to a verdict. In another part,' the presiding -Judge, after having placed the defendants on the footing of common carriers, declared, that if they were to be considered as holding that character, they were liable,’ according to the evidence in the cause. Nor was the .law in relation to common carriers, correctly laid down ; and it was highly important to the defendants, that its exposition should he accurate. For if the log on which the boat struck, had been brought there in the night, without the knowledge of the boatmen, of whirfi t|ie jury were to judge, it was one of those inevitable ac-c^ents which could have been neither foreseen nor prevented, and for which the defendants would not have been answerable, even as common carriers. Elliott v. Rossell, 10 Johns. 9. Mersey and Trent Navigation Company v. Wood, 3 Esp. 127. Buller v. Fisher, 3 Esp. 67. Abbott, 168. Smith v. Shepherd, Abbott, 250. In a case which was tried before the present Chief Justice, at Nisi Prius, at Fayette, in October, 1806, it was proved, that a stream rose in the night to a height beyond all former memory, in consequence of which, a wagon, placed in the usual stand of a tavern, was overturned, and the goods damaged. It was left to the jury, to'decide whether or not the loss happened by the act of God; and they found for the defendant. Several other errors in law may be pointed out in the charge. The jury were told that'it lay on the defendants to prove that they had not been guilty of negligence: But if the log was brought under the boat by the act of God, the burthen of proving a want of due care was clearly thrown upon the plaintiff. Again: In describing what constituted a good usage, the Court conveyed the idea, that to render an usage good, it must be general throughout the State; a doctrine which is wholly untenable ; for if the usage be general in the particular place in which it prevails, it is, sufficient. If it were otherwise, it would lose the character of an usage in that of a general law. Abbott, 170, 171. 205. 2 Marsh Ins. 707. 727. 6 Mass. Rep. 477. 4 Burr. 2298. 5 T. R. 397.
    
    
      Biddle, Shaler, and Forward, for the defendant in error.
    The plaintiff below, though he .took the deposition of Joseph Wood, was under no obligation to produce it.. If it had been filed, neither party would have beep entitled to read it, without having used diie diligence to procure the attendance of the witness. The mere circumstance of evidence being in the possession of the opposite party, does not dispense with the necessity -of laying the ground which would otherwise be required to .authorise its introduction. If a deed, in the possession of the opposite party, be produced, on being called for, it must nevertheless be proved. Gordon v. Secretan, 8 East. 548. 1 Phill. Ev. 345. The consequence of permitting a depositien to be given in evidence, without an effort to secure the attendance of the witness, would be to deprive the party who has taken it, of the important privilege of cross examining the witness, in case he should prove hostile to the cause in support of which he is called. 1 Phill. Ev. 210.
    The principle on which marine protests are admitted in evidence, is not applicable to losses occurring in the course of internal navigation, in relation to which regular testimony may always be procured, by the exercise of proper diligence. The admission'even of protests of the officers and crew of vessels navigating the ocean, is peculiar' to the State Courts of Pennsylvania; for they are not only excluded by the Courts of other States, but by the Circuit Court of the United States for the Pennsylvania District. In our State Courts, they were originally received from a supposed necessity, and the rule has been subsequently followed solely from a regard to precedent; and if the point were now a new one, it would receive a different decision. 3 Binn. 228. 2 Marsh Ins. 716 (note.) 2 Dall. 196. 1 Yeates, 201, S. C. 4 Dall. 456. 1 Binn. 40. The Court, therefore, will not' be disposed to extend it further than respect to authorities obliges them. If a protest is evidence in the case of a common carrier by water, it is equally evidence in the case of a carrier by land. The ex farte declaration of a wagoner, may with as much propriety be received as that of a boatman, and yet it will scarcely be pretended, that the protest of the former would be evidence. But the paper attempted to be introduced by the plaintiffs in error, was not admissible even upon the principles for which they contend; for there is no instance of such evidence having been received, where the loss happened in port, before the vessel sailed.
    If the Court of Common Pleas committed any error with respect to the evidence offered to establish an usage, it was in permitting witnesses to be examined to show what had been the received meaning of the words, “ unavoidable dangers of the river.” This action being, founded on an express written contract, ought not to be affected by any alleged custom. The plaintiffs in error have therefore no ground of a complaint; for they dot only gave evidence in illustration of the meaning of this clause in the, receipt, but, under the Court’s decision on that point, gave evidence of the custom generally. This alleged custom was in direct opposition to the common law, and therefore .any evidence to establish it, was inadmissible. In Stoever v. Lessee of Whitman, 6 Binn, 416, such evidence was rejected by this Court.
    The effect of the charge can only be understood by viewing the whole together, Carothers v. Dunning, 3 Serg. & Rawle, 373; and if it be so considered, the facts were left fairly to the jury. The Court, it is true, expressed their opinion on the facts, which they had a right to do ; and if that opinion was erroneous, a writ of error was not the proper mode of having it reviewed. Burd v. Dansdale’s Lessee. The jury were however very explicitly informed of their rights, and that they were not bound by the opinion of the Court. The opinion, that the 'evidence in the cause would make the defendants liable, on the principles of the common law, was not material, even if it was wrong; because the Court afterwards informed the jury, that the written contract, and not the common law principle, governed the case. The meaning of the Court, in saying, that to render an usage good, it must be general, seems to have been misunderstood. It was, that it must be general in the place in which it prevailed ; but if they intended to say, it must be general on the western waters, the opinion would not be incorrect. From the whole charge, the case appears to have been left to the jury, in a manner the most favourable to the defendants, on the question, whether or not they had been guilty of negligence.
   Tilghman C. J. —

Several exceptions were taken to the .Court’s opinion on points of evidence during the trial of this cause, and an exception, was also taken to the charge delivered to the jury.

1. The first exception was to the opinion of the Court on the rejection of the deposition of Joseph Woods, offered in evidence by the defendants. This deposition had been regularly taken by the plaintiff, under a rule of Court, but was not offered in evidence by the plaintiff, neither was the witness subpcenaed -by either; party, although he lived in the county of Allegheny, There is a rule of Court, forbidding the reading of a deposition, if the witness lives within forty miles of the Court, unless sick or unable to attend. The. defendants’ counsel contended, that the deposition was evidence for the defendants, although there was no proof that the witness was sick or unable to attend, and although it certainly would not have been evidence for the plaintiff under the same circumstances. I do not perceive the force of this distinction between plaintiff and defendant. ■ When the deposition is taken, it ought to be filed. It is not the property of the party on whose behalf it was taken, nor has be any right to withhold it. But it often happens, that the party, at whose instance it was taken, finds himself mistaken, and the testimony proves to be unfavourable to him. In such case, the adverse party has a right to make use of it, subject nevertheless to the rule of the Court, which forbids the reading of it, if the witness lives beyond a certain distance, unless the .Court be satisfied that due diligence has been used to procure his attendance. This is a good rule; because the truth cannot be so completely elicited by a deposition, as by a viva voce examination. The defendants say, that it was the business of the plaintiff to subpoena his own witness,,and therefore they did not do it. But in this they were wrong. The plaintiff might not like the evidence, and if he did not, he was under no obligation to summon the witness. If the defendant thought this testimony favourable to himself, it was his business to secure it, by taking out a subpoena for the witness, and endeavouring to procure his personal attendance. If he had appeared, the plaintiff would have had the benefit-of asking questions which may have been very material; and of which he would be deprived, if the deposition were to be admitted in evidence. I am of opinion, therefore, that the^decision of the Court was right.

2. The second exception was to the rejection of a paper purporting to be the protest of the captain and several of the men employed by him to navigate the boat, reduced to writing the day after the accident happened. It .was alleged by the defendants, that several of the men who joined in the protest, had gone out' of the State, to places, unknown, and it was their evidence only which was offered. There are'many objections to this kind of evidence, I never approved of it, and have been induced to consent to its admission, solely in compliance with the practice which had been established long before I had a seat on this bench, and which I did not think myself at. liberty to contradict. But as this practice is peculiar to Pennsylvania, and in my opinion, productive of more harm than good, I cannot consent to its extension beyond its ancient bounds. I have examined all the cases decided in our Courts, and find none in which a protest has been admitted, except in maritime voyages. . The reasons which induced their admission in those cases, do not apply to inland navigation in general. It is true, that in some instances, the voyages from Pittsburg down the Ohio and Mississippi are long, but in others they are short; and there is not, in general, that difficulty in procuring the testimony of the witnesses which occurs in voyages by sea. But be that as it may, we have no practice calling for. the admission of a protest in cases of inland navigation, and therefore considering such evidence as .contrary to general principles, and not well calculated for investigating, the truth, I am opposed to it. In this point, therefore, I concur in opinion with the Court of Common Pleas, who rejected the evidence.

3. The third exception was to the rejection of evidence, offered by the defendants, of the custom or usage which had prevailed at Pittsburg, and in the western country in general, touching the liability of those persons who carried the goods of others for hire, on the waters of the Ohio and Mississippi. The object of the defendants was, to prove a custom, by which' the carriers were liable for losses, only .in case of negligence. The Court rejected the evidence, ■ because in this case there was a written contract; but they were willing to admit, and did admit, evidence of usage or custom, ascertaining the construction of the Words,. “ inevitable dangers of thé river f which had been introduced into this bill of lading.

If the case had rested solely on the written contract, there would have been much to say in favour of the decision of the Court, because, be the common law what it may, the parties have a right to alter or modify it by special contract, and when they have done so, the question is, what is the construction of the contract ? In mercantile cases, the usage of trade is.often called in, to explain words of doubtful import, although it would not be admitted to contradict the intent of-the contract, expressed so clearly as to admit, of no doubt Where evidence of usage is admitted, the witnesses are eon-fined to the fact of usage, and are not allowed to give their opinion. This is the law, established by the best authority. 1 refer to the following cases. Abbott, Part 3, ch. 4, sec. 2. 2 Marsh. 207 (note.) Winthorp v. The Union Insurance Company, C. C. U. S. P. April Term, 1807. Ruan v. Gardner, 2 Marsh. 708 (note.) C. C. U. S. P. October Term, 1804. Frith v. Barker, 2 Johns. 327. 2 Marsh. 208 (note.) That the Court was right, in admitting evidence of usage, to ascertain the construction of the written contract, in the present case, I am clear. “ The unavoidable dangers of the river” are not more definite expressions than “ the perils of the sea,” the words usually inserted in bills of. lading on maritime voyages. And in such bills of lading, evidence of usage has been received. So long ago as the twenty-fourth year of Charles I. (King of England,) a question.arose, in the case of Pickering v. Barkley, 1 Styl. 132, whether a taking by pirates was a peril of the sea. The case came before the Court on a demurrer. Merchants and experienced mariners were examined, from whose evidence the Court was satisfied, that the taking was generally understood to be within the words of the contract, and decided accordingly. But on the hearing of the trial of the case before us, it probably escaped the Court, that the question was not confined to the written contract, because there was a count in the declaration, in which the defendants were charged as common carriers. If the plaintiff had failed in his count on the special contract, he might have recovered against the defendants as common carriers. It was incumbent on the defendants, therefore, to satisfy the Court and jury, that they were not liable as common carriers ; and this they could not do, but by shewing that the strict common law rule had not been received in the western country. Strict indeed is the rule of the common law. For the carrier is liable for every accident not arising from the act of God or a public enemy. It was not always so. Until England became a commercial country, the law of carriers was conformable to the general principles of bailment; that is to say, the carrier was liable,only, where he had not used ordinary care and vigilance. It was so understood in the reign of Henry VIII. Jones on Bailments, 102, 103, But when commerce became extended, under the flourishing reign of Elizabeth, it was thought expedient to adopt a stricter rule, in order to guard against frauds and collusions, easily practised, but hard to prove. In England, the rule' has been rigidly observed, for the sake of maintaining what the Courts have considered as a public convenience, though not without, now and then, a struggle, in cases of'extreme hardship on the carrier, where the loss has been by fire or robbery. The law, as held by modern Judges, will be found in 1 T. Rep. 27, Forward v. Pittard; 5 T. Rep. 389, Hyde v. The Trent and Mersey Navigation Company; and 10 Johns. 9, Elliott v. Rossell. But, although the Courts have not relaxed, yet the rule has been considered by the public as more severe, in some instances, against carriers by water, than was consistent with justice. And accordingly, about the year 1795, the usual form of charter-party was altered in England, and now stands as follows : “ The act of God, the King's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, excepted.” The parliament has also interfered in favour of carriers by water. For by Stat. 26 Geo. III. ch. 86, (Abbott, Part 3, ch. 4, sec. 8,) they are relieved from liability, in case of fire on board any ship or vessel; neither are they liable for “-gold, silver, diamonds, watches, or precious stones, lost in a ship or vessel, by robbery, embi zzlement, making away with, or secreting, unless inserted in the bill of lading, or notice given in writing, stating the articles and their value.” An attempt was afterwards made to cariy the thing farther, and to reduce the liability of carriers by water, to losses which happened through the fault or negligence of the master or mariners. A bill to this effect passed the House of Commons, but was rejected by the Lords. (See Abbott, Part 3, ch. 4, sec. 1 (note.) This sketch of the English law will be found important, when we come to consider the propriety of admitting evidence of the custom of the western country. With regard to carriers by land, the law has been here, as in England. Public convenience requires it, nor have I heard a suggestion of any doubt on the subject. But with regard to carriers by water, the law has not been considered as settled. There is said, indeed, to have been a decision at Nisi Prius by Chief Justice McKean and Judge Yeates,that carriers on the river Susquehanna were liable as common carriers. But we have no report of that case, and it probably was decided without much argument or consideration. The point came before this Court in Dean v. Swoop, 2 Binn. 72. The Court perceived its importance, and declined giving an opinion on it, as it was unnecessary, the cause admitting of a decision on another point. The.navigation of the Susquehanna and the western waters is quite a new thing. Its origin may be dated posterior to our independence. Prior to that, it did not deserve the name of navigation, nor could there have been any custom about it. Many parts of the English common law have been rejected, as improper for the condition of this Commonwealth. To what extent that common law has been reserved, in the navigation of our rivers, is, in my opinion, fairly open to investigation. It is to be understood, however, that it lies upon him who sets up an usage departing from the common law, to prove it, to the entire satisfaction of the Court and jury. It was remarked by this Court, in the case of Carson v. Blazer, 2 Binn. 475, that our rivers were so differenc from those of England, that the same laws, respecting the property of the Fisheries, would not suit the two countries, nor had the English law on that subject been received in Pennsylvania. I will not say, that the English law of carriers by wa-. ter, is inapplicable to this country ; but whether it has been adopted in its full extent, is a fact worthy of investigation. Unless a custom, or usage, is most clearly established to the contrary, I should think that the carrier was liable for every accident which skill, care, and diligence could have prevented. What may be called the act of God, has sometimes occasioned difference of sentiment. But the best opinion is, that the act of God is something in which the act of man has no part, such as lightning, tempest, wind, ,&c. In our rivers, which are interspersed with falls and rapids, a sudden flaw, not amounting to storm or tempest, might have such an effect, as to defeat , all human skill and diligence, and should be considered as the act of God. There is great reason, why the carrier should be liable for all kinds of embezzlement, stealing, and robbery, except by the public enemy. For in those cases, collusion may be so artfully concealed, that it would be almost impossible to. detect it. But we, need not take such large ground for the decision of the question before us, which is, whether on the count against, the defendants, as common carriers, they might not be permitted to prove an usage different from the common law ? And for the reasons already given, as well as many others which, might be given, I am well satisfied that the evidence was admissible, On the written contract, it would be premature to make any remarks, because the Court admitted evidence of usage to explain its construction, and there is no question on that point before.us.

I will now consider the exception to the charge, which is, that the Court took from the jury the decision of matters of fact. The charge contains many sensible and pertinent observations both on the law and the evidence; and submits the case to the jury, in a manner very favourable to the defendants. But it is objected, that, in some parts, the opinion upon facts was so decided, as might induce the jury to think, that they were bound to follow it. It is difficult for a Judge who delivers a long charge, to repeat, every time he gives his opinion on facts, that the jury are not bound by it. There is no doubt about the principle of law. If the Judge assumes the decision of the fact, to the exclusion of the jury, it is error. But it is not error, to express his own opinion, still submitting the matter to the jury, even though his opinion should not be warranted by the evidence. But in the application of this rule, there is sometimes difficulty, as will appear by,the cases cited by the defendants*' counsel, — Burd v. Dansdale, Small v. Wright, and Sampson v. Sampson. I can say, with certainty, that this Court never had the least difference of opinion as to the principle. And as to the cases cited, I think they are all in conformity to that principle, when submitted to the test of close examination. As this cause must be reversed on other grounds, and the learned President will have an opportunity of removing all cavil on the’ point, by stating distinctly to the jury, what are the subjects for their decision, I think it unnecessary to say more on this part of the case. On the whole, I am of opinion, that the-judgment should be reversed, and a venire facias de novo awarded.

Gibson J. —

Depositions under a rule of Court are unlike depositions in Chancery, which are taken by officers appointed by the Court, and published in the cause before the hearing. These may be read in an action at common law be-' tween the same parties, because they- were actually in evidence in the cause in Chancery, as1 soon as they had passed publication ; and although I ‘have found no case in which a deposition in Chancery has been admitted at law, against the party who had the witness examined, no doubt it might be done where the witness is dead, for the reason, that what a deceased witness has sworn in another cause between the same parties, is evidence for either, without regard to the party by whom he was called. Evidence actually received must necessarily belong equally to both parties; and it is by viewing a deposition in this light, from the time it is taken, that doubt arises : whereas, it is evident, our examination is provisional — something like a de bene esse examination in Chancery — and until the deposition is actually admitted, T cannot see on what ground it is to be considered as the common property of both parties. It is a measure of precaution taken by the one, at his own trouble and expense, and is adverse to the other, who certainly has no right to participate in the benefit. He could have examined the witness for himself; and might just as well claim a continuance on account, of the absence of a witness on the adverse part, because he depended on his adversary to procure his attendance. He has no right to calculate the chances of the latter taking a particular course ; and if he does so, it ought to be at his own risk. Bqt beside the abstract injustice of the thing, substantial injury would be done by permitting a deposition to be introduced against the consent of him who had it taken. Before the magistrate, the witness is considered and treated as the witness of the party who examines him : at the trial, he is necessarily the witness of the party who reads his deposition. The case then would present the strange spectacle of a party offering his own witness with the benefit of a cross examination, which is denied to the party against whom he is offered. The latter may have declined to use the deposition, because, not having been allowed to put leading questions, he was unable to bring out the only fact for which the testimony of the witness was desirable. This is not all: he has conducted the examination with a view only to particular facts; in the course of which, other facts, which he is not apprised of as being considered important by the other side, are spoken of in a way that he afterwards finds prejudicial to him. Now as to these, he is led into a surprise which he would have avoided, if his attention had been led to them by a direct examination from the other side. The examining part), from nis situation, necessarily labours under a serious disadvantage ; especially, where the witness is biassed against him. No counsel will deny the immense value of a cross examination ; or that he has not often beheld the truth wrung by it from an unwilling witness against his utmost power of retention. Where the witness is evidently hostile, the Court will exercise a discretion in permitting the party who calls him to put direct questions with all the latitude of a cross examination : a magistrate has no discretion; nor could the Court, who look only’ at the face of the deposition, judge whether he had exercised it properly, if he had ; and it is a good objection, where nothing appears to justify it, that the examining party has put a leading question. Before an examiner in Chancery, or a special commissioner, he has all the advantage of an examination in Court; for if there has been any thing improper during the examination, the deposition will be suppressed, and the witness, in some cases, be examined even at bar; but we know how miserably witnesses are examined before justices of the peace. It is frequently impossible, before a judicial examination, to know what witnesses will say ; for daily experience proves, how common it is for them to tell one story to counsel and another to the jury; it is only after being sworn, that a bias is disclosed ; and a previous examination, under a rule, sometimes becomes necessary, to ascertain whether a particular witness, may be called with safety. A party therefore might be cpt to pieces by an unprincipled witness, if, in the defenceless state in which he is placed by being bound down to a particular course of examination, his own evidence, thus taken, could be turned upon him. Examination, under a rule, as as measure of precaution against absence or death, would, in many instances, be too hazardous for any one of common prudence to have recourse to it ,• and thus would prove highly inconvenient in practice. Depositions are, at best, an inferior kind of evidence ; and not to be encouraged beyond the limits of absolute necessity. Where, therefore, the party desiring to avail himself of this sort of evidence, might have had it taken in a way more con- ’ ° . L, ducive to fairness as respects his adversary; the Court ought to require a better excuse for the omission, than attention to his own convenience. I have given this point more consideration than is necessary to the decision of that part of the case to which it belongs, as it is one of very great- consequence in practice; but at all events, the deposition could not be received, before the party had laid the usual ground, by shewing he had taken measures to procure the attendance of the witness in person.

Then, as to the admissibility of evidence of a custom peculiar to the carrying business of the Ohio.

It is settled, that a common carrier is answerable for every degree of negligence between the determinate point of ordinary diligence, and that where the least imaginable shade of negligence begins. He is, in effect, an insurer against all perils, except those which are produced by a sudden commotion or change in the state of the elements, and which no human skill can avoid, or human force overcome ; and those which arise from the hostile array of a foreign force. The difference between a carrier and any other bailee tor hire, is, in all cases, founded on maxims of public policy and public convenience, as much as it is in the particular instance of liability for a loss by robbery, which Sir William Jones considers an exception to the general rule of responsibility, rather than a part of the rule itself. The law raises a conclusive presumption against the carrier, not only in the case of robbery, lest a confederacy should be formed between him and thieves, without a possibility of detection ; but in all cases, except those just now mentioned ; because it prevents the necessity of proof of facts, impossible to be made, in one case in a thousand, by the owner of the goods. The carrier alone can give any account of the loss and its attendant circumstances. In some cast s, his servants might be called ; but necessarily participating in whatever negligence there may have been, and being answerable to their employer, to expect them to be impartial witnesses, would be against reason and all experience. The law, therefore, does not stop to compute the quantum of care that has been bestowed: it dedares the carrier liable for the slightest negligence, and assumes what is true in fact, that no loss can happen without some degree of it, unless in the excepted cases already mentioned ; and it imposes, on him the burthen of proving that t^le ^oss proceeded from a peril within one of the exceptions. He must, therefore, either stipulate for a premium adequate to the risk, or restrain his responsibility by a special acceptance of' the goods : if he has done neither, the acceptance must be taken to have been in reference to his duties at the common law. I have thus stated the common law responsibility of a carrier, together with the reason for it, in order to shew that no one can refuse his assenf to the wisdom and salutary tendency of its policy, in the abstract: the only question is as to its applicability to the carrying business of the Ohio, in particular. For I take it to be indisputable, that the common law measure of responsibility, as a general rule, is as applicable to a carrier by water from place to place within the State, or from a place within, the State to another in a neighbouring State, as it is to a carrier from a place beyond sea, or by land ; and it is expressly held so by the most respectable Courts of our sister States : as is shewn by Elliott v. Rossell, 10 Johns. 9, where the decisions in the different States are cited. And in Bell v. Reed, 4 Binn. 127, the principle seems to have been conceded by this Court; and in Lea v. Stroud, it was expressly so. This, although a Nisi Prius decision, is undoubtedly of weight to shew the view that, was taken of the law, as respects the Susquehanna, The question then is, as to the applicability of the common law rule, with respect to the Ohio, Now what is there to distinguish that river from the other rivers Of the State ? Its navigation is nót more perilous ; .and if it were, the carriers might exact a compensation adequate to the risk: the nature of the business,, the facility to practice fraud without detection, and the impossibility of shewing want of due diligence, are the same. But the common law is supposed to be altered with respect to this river by a custom.. Before we examine that matter, let us ascertain what is the law with regard to customs. ' These are: — 1. General; which constitute the universal law of the country, or, in other words, the common law. 2. Particular; which operate in, and are confined to, particular districts. And in England, 3. Particular laws ; which are recognised by particular Courts of general jurisdiction; or in other words, the civil and the canon law, which, with us, are so blended with the common law, as to have become part of it, 1 Com. 69. Now general customs are never proved before the jury, but are determined by the Judges, 1 Com. 67. In Consequa v. Willing, 1 Peters, 230, it was held by the Circuit Court of the United States for the District of Pennsylvania, that where the common law is changed by a general custom, it must have.prevailed so notoriously, as to enable the Judges to take notice of it without pleading or evidence. In Carson v. Blazer, the Court, from their own knowledge, established the deviation from the common law, without referring the matter to a jury. It would, in truth, be an inversion of their respective functions, for the Court to receive the law from the jury. It will not be pretended that the finding of a general custom would be good; and if so, the evidence was clearly inadmissible to establish a general custom. Now what is the custom relied on here l Not a general one pervading the State ; for such would be part of the common law, and determinable by the Judges. It was attempted to be established as a particular custom, and (as every particular custom must necessarily be) by evidence before the jury ; and I care not whether, as having the dignity of a law of local obligation, and superseding the common law within the district where it is supposed to prevail ; or as performing the more humble office of a usage of such notoriety as to be presumed to have entered into the stipulations of the parties, and tacitly to have become a part of their agreement: the result is, in either case, the same. "With us, particular customs have no force. I know not a greater or a more embarrassing evil than a law of merely local obligation. The rule. of the carrying business of the Ohio, ought to be that of the Juniata, the Susquehanna, the Delaware, and their tributary streams. Suppose a different usage to exist in resp.ect to each — is there to be different law in respect to each ? Iti fact, ihat result would be inevitable ; for I understand the evidence to have been offered to a custom peculiar to the Ohio ; and it will hardly be expected, that a usage, the same in every particular, should prevail with respect to all our'rivers. It is impossible to get away from the conclusion, that by giving the usage any further effect than that of a convenient subject of reference, to exp¡ajn a latent ambiguity in the expressions of the parties, where their meaning would be otherwise doubtful, we repeal , *. . an established principle of the common law, a matter which * apprehend is not open to us. So, that view the subject as we may, this custom or usage, if it have any operation beside what I have just assigned to it, muse have it as a rule of paramount obligation within a particular district; and not as the general law of the land. But in Bowen v. Jackson, Whart. Dig. 252, it was held by the Circuit Court of the United States, that evidence even of a usage of trade is inadmissible, when the law on the subject is settled ; and also by the same Court, in Winthrop v. The Union Insurance Company, Whart. Dig. 252, that opinions as to the construction of a contract are not evidence ; and in Henry v. Risk, 1 Dall. 265, it was held that a witness cannot be admitted to contradict the established principles of the law. In Stoever v. Whitman, 6 Binn. 416, the very principle under consideration was decided by this Court; by whom it was held, that evidence of a custom in a particular place, different from the common law, to re-enter for a forfeiture incurred by non-payment of rent, is inadmissible; the Chief Justice who delivered the opinion of the Court, declaring that miserable would be our condition, if property were to depend, not on the contract of the parties expounded by established principles of law, but on what is called the custom of particular places ; so that we might have different law in every town and village of the State. The same mischief would arise from having different law with respect to the navigation of every river of the State. But if we even had the power, what inducement have we to alter the common law ? Would its rule of responsibility, when applied to the carrying business of the Ohio, produce evils which are not felt in its application to that of the other rivers of the State, or to carrying by land ? We are to recollect, that our decision will owe.its'importance, not to the value of the-property immediately involved (although that is considerable,) but to the rule it may establish for the future ; and that if such rule be not the most convenient, the parties have, in every case, power to establish a particular measure of responsibility for themselves: it is only where they have neglected to explain themselves fully, that some pre-established rule, to which they are supposed to have referred, becomes necessary. Now it is supposed, that a usage has existed, without even any knowledge of a pre-existing rule, which consequently indicates the wholesome and convenient measure. To me, however, it seems, that no measure or rule, if it can be so called, which is altogether uncertain in its nature, can be either wholesome or convenient. If we go by the common law, we shall have a definite, known rule; which, applied to the facts by the Court, will produce as much certainty of result, as legal proceedings are susceptible of: if we go by the usage, the whole matter will have to be determined by the jury, on evidence of the common practice and understanding on the subject; which would be to go by no rule at all. So that the right to compensation will, in every instance, depend on what the jury may think the proper degree of diligence. We should be perpetually inquiring by a jury as to what is the law of the land ; and the degree of diligence required of the carrier,, would be as fluctuating as the opinions of the witnesses called to establish it.

That the common law has not been so altered as to contract the responsibility of carriers by water, is proved by Lea v. Stroud and Bell v. Reid. The business qf the Delaware and Susquehanna furnishes nothing like a custom ; for on these, as well as on their tributary streams, carrying for hire is little known. The produce of the country is, for the most part, taken to market in flat bottomed boats, purchased by the owners of it, and navigated by hands that receive daily wages. The bargemen, who are, strictly speaking, common carriers, were,' till lately, mostly employed in transporting merchandise up these rivers ; a sort of navigation in which there is so little of peril, that with ordinary diligence, a loss can scarcely ever occur ; and that furnishes a satisfactory reason why there is no instance of an action having been brought against one of these, where the negligence was not gross, and palpable. These remarks are applicable only to that part of the Delaware where the tide does not flow: the carrying business from abroad to the port of Philadelphia, being governed as well by the maritime as the common law.

I have said, the usage would have been competent, not as a rule of paramount obligation, but as subservient to explanation of a latent ambiguity in the bill of lading, if that term, may with propriety be applied to a fresh water transaction.I do not say there was, in fact, any ambiguity in the paper signed by the agent of the defendants. The words “ unavoidgry.i dangers of the river,” seem to me equipollent to the words “ perils of the seas,” in a policy of insurance ; and these are well understood to mean those dangers which arise from tempests, storms, rocks, and sands : they are, in fact, *« the unavoidable dangers” of the seas. There are indeed other dangers that máy justly, be said to be of the seas; but as these may be.averted by human effort, the risk from them must be borne by the master or owner, and not by the underwriter, who is an insurer against only extraordinary perils : so that it may, In general, be said, the responsibility of the one begins where that of the. other ends ; the goods being covered from all risk whatever. It is therefore a fair construction to say, the excepting of the unavoidable dangers of the river, meant no more than the exception which is made , by the common law. I, at first, thought, that as the carrier was !in effect, an insurer, the usage of the particular river might be permitted to operate on the contract, just as the usage of a particular trade is permitted to operate on the contract of insurance. But the relaxation of the - common law rules of evidence in the case of a policy, arises from the clumsiness of the instrument, which has undergone little or no alteration since it came into use; although the ever varying circumstances of trade have produced a variety of correspondent modifications, of its obligation, which is often independent of its terms. Hence the usage of every particular trade, necessarily enters into every policy, and is resorted to, for the purpose of explaining, and even controlling, those parts of the instrument that are merely formal. The contract of the carrier, however, is quite a different .thing. It is not in the form of an instrument; but the parties are supposed to express their meaning specially, without regard to form. Ifi is not a'contract of indemnity; and that the carrier is an insurer, is not its object, but the consequence of the extraordinary diligence he is bound to use. It is therefore to be construed strictly according to the rules of the common law. It seems to me, therefore, the only error the Judge committed, was in favour of the defendants below, in permitting them to give evidence of the commercial meaning of the words, “ unavoidable dangers of the liver,” which were too clear, of themselves, to admit of interpretation.

Concurring with my brethren, that the other errors have not been sustained, I am of opinion, that the judgment ought to be affirmed.

Duncan J. —

There are several exceptions to the rejection of evidence, and one to the charge of the Court.

The declaration contains two counts: one on a special contract, the other against the plaintiffs in error, as common carriers.

I do not perceive any ground, on which the deposition of Joseph Woods could be received. For though I admit, a deposition taken by one party may be given in evidence by the other, yet if he offer it, he must bring himself within the rules of Court. There was no evidence given, that the witness was subpoenaed, sick and unable to attend, or resided forty miles from the Court. The deposition, when taken, is equally the property of both parties. In strictness, it should be filed in the cause. It cannot be used by either party, unless he has conformed to the rule. The plaintiff below was under no obligation to use it, or to examine the witness. If the defendants thought proper to use it, it became in a certain degree their evidence, as much as if taken by themselves. This deposition was properly rejected. The protest was properly rejected. The admission of such protests in evidence, in any case, is peculiar, to Pennsylvania. ' It is a very dangerous species of evidence, and ought not to be extended beyond the adjudged cases. It has been confined to maritime voyages, and if it were received in inland navigation, it must be received in all, be the voyage long or short» Nor is there any reason why, if it were evidence in the case of a carrier by water, it should not be equally so in the case of a carrier by land.

If there had only been a count on the special contract, I cannot see how a particular usage could be received to modify it, to lessen the responsibility assumed by the plaintiffs in error. Evidence may be given of a usage fixing the construction of-words used by the contracting parties, as here, “ inevitable dangers of the river.” And here it was properly received; ‘«'inevitable dangers of the river,” is not more ’ definite or-certain than “perils of the'sea.” Yet the meaning of words usually inserted in bills of lading in sea voyages, has been explained by the evidence of merchants, proving a usage, not matter of mere opinion. The usages of traders, of trade, in a particular town, have been always received in evidence. This doctrine was very fully considered by this Court, in a case not yet reported.

The responsibility of carriers by land dnd by water, is, ia many respects, the same. The carrier by water is an insurer against every thing but acts of God and the public enemies. B v act of God, is understood, that loss occasioned by some act beyond the control and power of man to prevent. The navigation of our rivers is exposed to many and great dangers, but policy requires the adoption of some strict and rigid rule. ' When a loss happens, it is incumbent on the carrier, the onus probandi falls on him, to establish that this loss was occasioned by some occurrence beyond his power to control,---some action of the elements, something more than human acts ; tempests, sudden gusts of wind, lightning, &c„ For in the navigation of our rivers, in passing falls, the slightest variation of the wind at a particular moment, may bailie the skill of the most experienced pilot. Fora loss thus occasioned, the carrier is not liable. In the Susquehanna, these losses are very frequent. In the last spring, on that river, property to a very great amount was destroyed, where no negligence or want of skill could be imputed to the boatmen. I have, inquired into the understanding of persons concerned in the navigation of that river. It is, that the carrier is not liable for such a loss, when he. manages his boat with skill, and the loss was not occasioned by his negligence. He is not an insurer against that which no human exertion could prevent. Indeed his reward is totally inadequate to such responsibility ; and an insurance office was established to insure the owner against such perils, such unavoidable dangers of the river. In the western waters, dangers are of another kind; sudden and great rises of the waters, shoals recently formed, and a change of the channel often occurring. In such cases, from the very nature of the navigation, from the perils to which it is exposed, different from the rivers of England, from the reward the carrier is to receive, by no means proportionable to such risk, all these tend to shew, that a different rule would neither be inconvenient nor unjust. It is the premium for the risk which distinguishes the carrier from the bailee. The latter is only obliged to keep the goods with as much diligence and caution as he would keep his own ; but a common carrier, in respect of the premium he receives, runs the risk of these, and must make good the loss, though it happen without any default in him. The reward makes him answerable for the safe delivery j Gibbon v. Paynton and another, 4 Burr. 2300. The carrier may limit, by contract, the extent of his liability ; so the usage and custom, on particular waters, may abridge and coniine it; and such usage, in the absence of a special written contract, would control the general custom or law of England. It would be the adoption of a custom different from the custom of the English realm. The great difference between our large waters and the streams of that country, has introduced different usages, and established.different rights,as in the case of fisheries on the Susquehanha. Carson v. Blazer, 2 Binn. 475. Nor is it any objection to such usage, that applies to a particular description of men, or to a particular river. Such is the right of the tenant to the way going crop ; so of many usages which are in their very nature local; for these are particular- customs, not general customs, for that would be general law. When the particular usage is known, persons generally undertaking, áre supposed to enter info the contract, with.relation to the custom. It forms a part of the contract, and is to be governed by it. The particular custom controls the general rule- The evidence offered was of a custom or usage ; and as he is liable on account of his reward, it might as well be the object, of a particular custom, to limit Jris liability, and by so doing, to, diminish his reward-, as it would be the object of a special contract. ' Here ,the' usage offered to be proved was, that a carrier for hire, on the waters of the Ohio and Mississippi', was liable for losses only in cases of negligence. This I have already said, would not be evidence on the count on the special contract» the bill of lading, but on the count on the custom, the general count against the carrier ; for on that count, the question would be, what was the nature and extent of the liability; what was the custom and usage, with respect to carriers on these waters. Every count in the declaration is considered as a distinct ground of action; if the evidence offered was admissible on any count, it ought to have been received. My opinion is, that if such usage had been clearly proved, it would have controlled the general rule of law, because it would be evidence that the parties contracted with the view of, and with relation to, the particular usage, and that the reward was measured by the extent of the risk. But where there is a special contract, a particular custom, or usage, could neither enlarge nor diminish, though evidence may be received of the general understanding, interpretation, and construction of the words and terms used in such special contract. For this reason alone, I am of opinion, there is error, and that the judgment be reversed. The charge of the Court is as favourable to the plaintiffs in error as the case would, in any degree, warrant; for it is put to the jury, to decide whether the loss was occasioned by negligence or not. It is to be observed, that the construction of this instrument is precisely that which was offered to be proved by the plaintiffs in error as the usage on the waters of the Ohio and Mississippi. Negligence or no negligence, skill or no skill, are questions of fact fairly left to the jury for their own decision; and although the Court express an opinion on the' facts, they do not obtrude this opinion on the jury. It certainly is not inconsistent with the duty of a Judge, to recapitulate the important and striking parts of the evidence, to call the special attention of the jury to them, to comment on the facts, but still to leave the facts to them. If a Judge withdraw the fact from the jury, decide it himself, and instruct the jury that such are the conclusions of fact from the evidence given, this would be error. So far from this being the case, the Court set out with declaring that, they do not mean to obtrude their views of the fact on them, that they are by no means binding on them, and conclude witih declaring the law, giving an opinion on the law, but the jury are to judge of the facts. Was there a contract, a loss ? Plow was that loss occasioned,’ — by an unavoidable danger of the river, or by a want of proper care l

Not understanding there would be any difference of opinion, that would render it necessary for the Judges to give separate opinions, I have, during the sitting of this Court, hastily thrown together my thoughts; though I had very fully examined the question, and made up my mind, on a mature investigation of the subject.

Judgment reversed, and a venire facias de novo awarded.  