dissenting.
This was an action against a common carrier. By the common law, carriers receiving goods for transportation are responsible, at all events, for every injury arising in'any other way than by the act of God, or of public enemies. It is unnecessary for me to consider whether a common carrier may not restrict his common law liability to a certain extent, by special agreement. There is no disagreement in this case on that point, among the members of the court; nor, perhaps, is it necessary for me to discuss, whether such special agreement can be proven by circumstances or usage, as the evidence in this case establishes no usage on the Chattahoochee river, which mitigates the rigor of the common law liability. It establishes that bills of lading, when given, contain an “exemption from the damages of fire.” If a shipment be made and no bill of lading is given, the carrier is subject to the common law liability. The usage proven, that bills of lading are thus given, is evidence that without bills of lading, containing this clause of exemption, the carrier is subject to the common law liability. I am not to be considered as admitting that such a custom is admissible in evidence to vacate a rule of law. The usage of trade is admissible in evidence to prove where and how the goods transported are to be delivered, merely to show at what time the liability of the carrier ceases; or that boats in descending rivers call at various landings for cotton, &c. &c. Such usages enter into the contract, not to change the rule of the common law; but to show for instance, if a boat were struck by lightning while at a landing' to take in cotton, that it was lawful and according to contract, that the carrier should stop there; and that the principle, that although the injury happened by the act of God, it would not have happéned if he had not stopped in breach of his contract, should not apply to him.
It was in testimony that Col. Harper was the agent of the plaintiffs, and contracted with the defendants to cany one hundred bales of cotton from Mrs. Boykin’s landing on the *550Chattahoochee, and deliver them to Harper & Holmes, at Appalachicola. Charles Crichton testified that he proposed to give him a bill of lading for the one hundred bales of cotton. Harper said he did not then want the bill of lading, for he did not know that the hundred bales of cotton were at the landing, and directed the witness to make out a bill of lading, after the cotton was on board, and to deliver it to Harper & Plolmes, at Appalachicola. Col. Harper, in his evidence, does not contradict Crichton’s testimony in regard to the bill of lading, but he has no recollection of it. It stands as proven, therefore, that a bill of lading was to have been given. The evidence of the usage in regard to the contents of bills of lading comes in appropriately, to prove the contract between the parties, for the uniform usage to insert, in bills of lading, a clause exempting the carrier from losses sustained by fire, establishes the proposition that whenever a contract for the transportation of cotton on the Chattahoochee river was entered into, and it was agreed that a bill of lading should be given, without further specification, it must be intended a bill of lading in the usual form; for it must have been so expected by the carrier, and it must have been known by the shippers that he did so expect. In respect to the hundred bales of cotton, therefore, agreed to be shipped, and for which a bill of lading was to be made out, after the cotton was taken on board of the boat, and delivered to Harper & Holmes, at Appalachicola, the evidence of the usage in giving bills of lading and their contents, was admissible to prove the contract between the parties.
In respect to the remaining bales of cotton taken on board the boat by the carrier, beyond the hundred bales, he took them without contract, and on the common law responsibility, which attaches to his calling. There was no special contract respecting them. The writing left by the clerk amounts to nothing but a mere statement to Mrs. Boykin that they had taken thirty-four bales of cotton more than by the contract they were authorized to take. The writing states that they *551had an order for one hundred bales, and proceeds to say: “but we concluded as you had 134 bales on the bank, that you wanted all to go.” They came to the conclusion without the assent of Mrs. Boykin or her agent. The testimony says that they took them “by the consent of Mrs. Boykin’s overseer.” An overseer has not, as such, any general authority to ship his employer’s cotton; and his consent, therefore, amounted to nothing, without proof of special authority, or that he had made such contracts which had been subsequently sanctioned by the employer. Col. Harper, the acknowledged shipping agent, testified that “ he did not, and would not have consented for defendants to take more than one hundred bales; that he would not ship more than that number by any one boat.” The defendants took the excess of cotton over the hundred bales, without contract or authority from the plaintiffs, and were therefore, according to the common law, liable for the destruction of them by fire. The custom under which the defendants seek to protect themselves, does not go to the extent of proving, that when no bill of lading was given or contracted to be given, the carrier was subject to no greater liability than when a bill of lading, with the exemption clause therein, was given. It proves the contrary. The bill of lading executed and filed, to be delivered to the consignee in Appalachicola, which was destroyed with the boat, not having been made out in conformity with the contract, nor accepted by the plaintiffs, was not binding on them — whether the defendants are liable for the hundred bales, depends on the simple question, whether by the taking of this extra quantity of cotton on board the boat, the risk of burning was increased. If it was, the defendants are liable for the entire quantity of cotton shipped. I think that the law of this branch of the case is as I have presented it here, and that it ought to have been so submitted to consideration of the Jury, and so far as the judgment of the Court does not conform thereto, I dissent from it