The opinion of the Court was afterwards drawn up by

From the bill of exceptions, it would seem, that no evidence of ownership was offered, except as to *184two of the four defendants. This, at first, led the Court to the conclusion, that the ruling of the Judge at the trial, taken in connection with his instruction to the jury, amounted to an intimation to them, that the plaintiff was entitled to recover, without proof of ownership by the others. Upon a re-examination, however, we are induced to doubt as to the correctness of such a conclusion. There does not appear to have been any ruling, explicitly, upon the point; and we do not discover, that any was desired by the counsel for the defendants. Where exceptions are taken it is unquestionably proper, that every matter of law, intended to-be insisted on, should, at some time during the trial, be brought particularly to the notice of the Court. As we do not, on the whole, perceive that the attention of the Court was particularly called to the consideration of the law in reference to the point of ownership of the defendants in the vessel, we may well consider any such question, though now raised in argument, as having been then waived.

In reference to the ruling of the Court, as to the liability of common carriers, we see no reason to doubt its correctness. Unless they limit their responsibility, by the terms of a bill of lading or otherwise, they cannot escape from the obligation to deliver a shipment according to its destination, unless prevented by the public enemy or the act of God: The disaster complained of was not attributable to any such cause. If the accident had accrued from lightning, the non-delivery of. the hay might be excusable.

The ruling, that the disclosure of William Lamson might, at the option of the plaintiff, be wholly rejected, forms no essential ground of complaint on the part of the defendants. Nothing fell from him, which would have been conclusive upon the plaintiff. He might still have shown that the facts were otherwise, than as stated by him in his discourse with the witness, as testified by him on cross-examination. And besides, the statements proved to have been made by him were in reference to the ownership of the vessel, which, as before stated, we think must be considered as not now a legitimate subject of controversey.

Exceptions overruled.