Sec 327

A common carrier, by our law, is an insurer of goods committed to him for carriage so far as to be responsible in all cases of non-delivery, unless such nondelivery results from casus or vis major.1 Neither fire, unless communicated by lightning or some similar extraordinary interposition,2 nor theft,3 nor hidden rocks of which the carrier might have taken notice, are held to be casus.4 That seizure by a public enemy is a defence is elsewhere seen.5

Common carrier may defend on ground of casus, but not of fire.

1 Wh. on Neg. sec 552; Forward v. Pittard, 1 T. R. 27.

2 Wh. on Neg. sec 554; Forward v. Pittard, 1 T. R. 27; Hyde v. Trent. Co., 5 T. R. 389; Hollister v. Nowden, 19 Wend. 234; Condict v. R. R., 54 N. Y. 500; Mershon v. Hobensack, 2 Zab. 372; Am. Trans. Co. v. Moore, 3 Mich. 368; Cox v. Peterson, 30 Ala. 608; Hibler v. McCartney, 31 Ala. 502.

3 Wh. on Neg. sec 554 a; Story on.

Bailments, sec 528; De Rothschild v Royal Mail, 7 Exch. 734; Amer. Steamship Co. v. Bryan, 83 Penn. St. 446.

4 Wh. on Neg. sec 555; Williams v. Grant, 1 Conn. 487.

5 See supra, sec 319; Wh. on Neg. sec 560. In Williams v. Vanderbilt, 28 N. Y. 217, the defendant undertook to carry the plaintiff from New York to San Francisco, via Panama. The vessel that was to have carried the plain.

Sec 328

When there are several modes of performing a contract, the defence of impossibility cannot be set up as long as any one of these is open.1 The alternative that is possible must be pursued,2 unless the alternative be so remote as apparently not to have been within the intention of the parties.3 The same rule applies to bonds with alternative conditions.4 Where a lessee of coal mines covenanted to raise a certain amount of coal each year and pay a royalty, or to pay a fixed sum as rent whether the coal was produced or not, the rent was held due though the mine was worked out.5

Sec 329

As in our modern practice the condition of a bond expresses the real indebtedness of the obligor to the obligee, the penalty being merely cautionary, if the condition turns out subsequently to be impossible, the bond itself is void. The obligation is dependent on the condition, and when the condition falls, the obligation falls.6 Hence, when the law of the place to which a recognizance of bail is subject, by imprisoning the principal, makes his delivery by the bail impossible, the recognizance ceases to be obligatory.7 And generally the bond is subject to the rules heretofore presented as controlling contracts to do things which subsequently become impossible. On the other hand, tiff on the Pacific side was burned, without any fault or negligence of the defendant or his servants. It was held that this was no defence to the plaintiffs suit, based on the damage sustained by him through his detention at Panama, since the defendant could have obtained, though it may have been with great difficulty, another ship.

When there is an alternative still open,impossibility does not exist.

Bond with an impossible condition is void.

1 Leake, 2d ed. 716; infra, sec 624; see The Teutonia, L. R. 4 P. C. 171; Jones v. Holm, L. R. 2 Ex. 335.

2 Barkworth v. Young, 4 Drew, 1; DaCosta v. Davis, 1 B. & P. 242; Williams v. Vanderbilt, 28 N. Y. 217, and cases cited, infra, sec 624.

3 Barkworth v. Young, 4 Drew, 1. See Erie R. R. v. Express Co., 6 Vroom, 240.

4 Mill Dam Foundry v. Hovey, 21 Pick. 417.

5 Bute v. Thompson, 13 M. & W. 487.

6 Infra, sec 547, where the authorities are given at large; 1 Wms. Saunders, 238; Brown v. Mayor of London, 9 C. B., N. S. 726; Poussard v. Spiers, 1 Q. B. D. 410; People v. Bartlett, 3 Hill, 570; Scully v. Kirkpatrick, 79 Penn. St. 324; Mizell v. Burnett, 4 Jones N. C. 249. If the non-possibility arise from the obligor's act, it cannot be set up as a defence. Beswick v. Swindells, 3 A. & E. 881. See supra, sec 325.

7 Taylor v. Taintor, 16 Wail. 366; Way v. Wright, 5 Met. 380; Fuller v. Davis, 1 Gray, 612; see supra, sec 307, 321.

it is laid down in the old books that when the condition is on its face impossible, then the obligation is absolute.1 But supposing both parties knew of the impossibility of the condition, the obligation, on the reasoning already given, cannot be regarded as operative.2