Read et al. v. Spaulding. assuming, for the purposes of the assessment, that the goods arrived safely, though not until long after the time when they should have been delivered. This claim rests upon the ground that the delay was not the proximate cause of the injury. "Causa proxima non remota spectatur." The delay certainly did not cause the flood. But we think that the defendant cannot find protection in this view of his responsibility. His unexcused neglect of duty did expose the goods to the peril; and when the defendant was found in actual fault, he lost the protection from liability by inevitable accident which the law extends to the carrier in the due performance of his undertaking. From the moment his faulty negligence began, he became an insurer against the consequences which might result therefrom, whether ordinary or extraordinary. It is true that, in Morrison v. Davis, (20 Penn. R., 171,) where goods carried in a canal boat were injured by the wrecking of the boat caused by an extraordinary flood, it was held that the carriers were not rendered liable merely by the fact that, when the boat was started on its voyage, one of the horses attached to it was lame, and that, in consequence thereof, such delay occurred as prevented the boat from passing the place where the accident happened, beyond which place it would have been safe. In considering the question, the Court liken the carrier to an insurer against loss by perils of the seas, who are said to be not liable for a loss immediately arising from another cause, although, by perils of the sea, the ship had sustained an injury without which the loss would not have taken place. Possibly a question might be suggested whether, in that case, the mere fact that one of the horses was lame was enough to charge the defendants; but it must be conceded that, in the view taken by the Court, the case is strikingly like the present. We are, nevertheless, constrained to say, that, in so far as the principle of the decision tends to exonerate the present defendant, we cannot give it our assent. A common carrier, in order to claim exemption from liability for damage done to goods in his hands in course of transportation, though injured by what is deemed the act of God, must be without fault himself: his act or neglect must not concur and con Read et al. v. Spaulding. tribute to the injury. If he departs from the line of duty and violates his contract, and while thus in fault, and in consequence of that fault, the goods are injured by the act of God, which would not otherwise have caused damage, he is not protected. The defendant was bound to deliver the goods in a sound condition. If prevented by the act of God, he is excused; but if his own misconduct contributed to the injury by exposing the goods needlessly or improperly to the peril, his excuse fails. All ordinary perils from even the act of God he was, even while engaged in the faithful performance of his duty, bound to foresee and guard against by the exercise of a care and diligence proportioned to the danger. He was not bound to anticipate and guard against extraordinary perils which human foresight would not anticipate; but it was his duty to do nothing which should expose the goods to any perils which would not arise in the proper and diligent prosecution of the journey which he had undertaken. And if he, by needless delay, subjected the goods to damage, from whatever cause concurring or coöperating therein, he is liable. This we believe to be in accordance with sound policy, just in its operation, and sustained by the weight of authority. Thus, if a carrier by water deviates from his voyage and the ship and goods are lost, he is liable, although the loss was by a peril of the sea. He is not at liberty improperly to encounter mischief, even from such a cause. In principle, it can make no difference whether his deviation is intentional or negligent; it is sufficient that he is in fault, and that subjects him to liability. So, where a carrier by land deviated from the direct and principal route, and the goods were lost by a cause which might, had he been without fault, have excused him on the score of inevitable accident, he was held liable because the loss happened in consequence of his own improper conduct: he had no right so to deviate. The observations of TINDAL, Ch. J., in Davis v. Garrett, (6 Bing., 716,) apply with much force to the present case. There the carrier had deviated from his voyage, and a loss occurred by a peril of the sea. He says: "No wrongdoer can be allowed to apportion or qualify his own wrong; and as a loss has actually happened while his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up, as an Bosw.-VOL. V. 52 Read et al. v. Spaulding answer to the action, the bare possibility of a loss if his wrongful act had never been done. It might admit of a different construction if he could show, not only that the same loss might have happened, but that it must have happened, if the act complained of had not been done." In Williams v. Grant, (1 Conn. R., 492,) the true rule is stated as we think, and it covers the present case; after stating the exemption of carriers from liability for losses caused by inevitable accident, GOULD, J., says: "It is, however, a condition precedent to this exoneration that they should have been in no default; or, in other words, that the goods should not have been exposed to the peril or accident which occasioned the loss by their own misconduct, neglect or ignorance. For, though the immediate or proximate cause of a loss, in any given instance, may have been what is termed the act of God, yet, if the carrier unnecessarily exposed the property to such accident by any culpable act or omission of his own, he is not excused." (See also 12 Conn. R., 410; 4 Whart., 204; Harp. [S. C.] R., 262, 468; Wilcox v. Parmelee, 3 Sand., 610.) The defendant is, we think, liable, and the plaintiffs were entitled to recover. A point was suggested on the hearing of the exceptions, though not argued by the counsel, relating to the amount of the damages. An entry on the margin of the contract, called the bill of lading, was in these words: "No risk taken over $200 on any single package." One of the five cases which were injured contained seventeen packages, and the damage to the whole seventeen packages amounted to $438.88. It is claimed that no more than $200 should be allowed for the injury to the whole seventeen packages. It is obvious that, according to the very terms of the memorandum, $200 being allowed on any single package, that sum might, within the provisions of the contract, be allowed on each of the seventeen packages, unless the word "package" is used in a different sense in the statement of the facts agreed upon by counsel, from its meaning in the contract, which forms a part of that statement. This we cannot say. Again, the packages thus forming one case were inclosed in a rough box, having openings through which the packages could be seen. Adams v. Leland et al. The defendant, therefore, knew when he was receiving the case that he was receiving several packages, though inclosed. It does not seem to us that securing several small packages in this manner, so that they were more conveniently carried, when the carrier knew, or might, by ordinary inspection, have known that he had received, not one single package, but seventeen small packages, should render the liability of the defendant any less than it would be if the seventeen packages had been separately delivered. And, finally, on this point we incline to the opinion that the term risk, in the memorandum in question, has reference to perils which occur without the actual fault of the defendant, and do not exempt him from liability for losses resulting from his actual negligence. The plaintiff should have judgment on the verdict. PLATT ADAMS, Plaintiff and Respondent, v. SIMEON LELAND et al., Defendants and Appellants. 1. Where the evidence as to the diligence of a Notary to find the makers of a note in order to demand its payment at maturity from them personally, is free from conflict, the question of its sufficiency to establish due diligence in that behalf is one of law. 2. The evidence given on the trial of this action, to establish due diligence, stated, considered and held sufficient to make a prima facie case of due diligence. 3. Statements made to the Notary by persons to whom he was referred at the makers' last known place of business, as having knowledge of the makers, in answer to questions as to where the makers resided or could be found, held competent upon the question of the Notary's diligence to find the makers. (Before HOFFMAN and WOODRUFF, J. J.) Heard, November 7th; decided, November 26th, 1859. THIS is an appeal by Simeon, Charles and Warren Leland, the defendants, from a judgment in favor of Platt Adams, the plaintiff, rendered on a trial had before Chief Justice BOSWORTH and a jury, on the 23d of Mav. 1859. Adams v. Leland et al. The suit is against the defendants as indorsers of a note dated "New York, February 12, 1857," for $6,000, payable on the 20th of June then next, without grace, to the order of James Moore, indorsed by him to P. C. Ward, by the latter to the defendants, and by the defendants indorsed in blank and delivered to John Thompson, and assigned by the latter to the plaintiff in August, 1857, under a general assignment by Thompson of his property. The note is made by Seymour, Moore & Co., a firm doing business, at the time it was made, at 110 Broadway, New York city. The principal questions related to the sufficiency of the demand of payment, and to evidence bearing on those questions. The facts are stated in the opinion of the Court. A verdict was ordered for the plaintiff for $4,379.87, the balance due on the note, and from the judgment entered on the verdict, this appeal is taken. S. B. Cushing, for appellants, Insisted that as there was no conflict of evidence as to the diligence of the Notary, its sufficiency was a question of law, and that the evidence was insufficient to prove due diligence, or excuse the necessity of making a personal demand of the makers, or a demand at their residence, whether it was in this State or out of it, or at their place of business, and cited and commented on 6 Metc., 290, and Taylor v. Snyder, 3 Denio, 149; Chitty on Bills, 12 Am. ed., 395, 353; 7 Barb., 143; 14 Johns. R., 114; 16 Pick., 392, and 5 Hill, 232. E. More, for respondent, Contended that as Seymour occurred in the name of both firms, and Seymour, Morton & Co. were represented to be successors of the makers, payment was in fact demanded at the place of business of one or more of the makers. That if this position was untenable, then the only question was, whether due diligence had been used, and that Taylor v. Snyder, (3 Denio, 152,) warranted the decision made at the trial. BY THE COURT-HOFFMAN J. The action is brought upon a note dated the 12th of February, 1857, for $6,000 drawn by |