delivered the opinion of the Court:
It is insisted that the finding of the jury is manifestly against the weight of evidence, .and that the court below, therefore, erred in overruling the motion for a new trial. Two unimpeached witnesses swore that the money was placed in the envelope and sealed up. One of these witnesses testifies that he placed the package in the hands of Shipley, agent of the Nashville and Richview Express Company, on the evening that it was sealed up, or on the next morning. Shipley testifies that he received the package, as stated, and delivered it to the agent of defendants in error, at Richview, precisely as he received it from Boyd, and the books of defendants in error show the delivery of such a package to them at that time. It would be hard to imagine how clearer or more convincing proof could be made, that the money came to the hands of defendants’ agents. It seems to be positively proved by witnesses, so far as we can see, wholly unimpeached; and if so, their evidence should not be rejected.
The evidence is equally as clear, that when the package was received by plaintiff the money had been abstracted. This is proved by a witness who stands unimpeached on the record, and who was with plaintiff when he received and opened the package. He swears, that when it was opened it contained the note written by Boyd to Konon, that it contained no money, but slips of brown paper had been substituted. It seems in this case, that plaintiff, through his agents, observed all the *507precautions required of a prudent man in such cases, and so far as we can see, was guilty of no negligence in placing the money in the hands of the company; and after having received it, they have failed to account for it according to their agreement.
In the case of Baldwin v. The American Express Company, 23 Ill. 197, it was held that express companies are common carriers, and are liable as such. In that case it was said: “ It is the settled doctrine of England, and of this country, that there must be an actual delivery to the proper person, at his residence, or place of business, and in no other way can he discharge himself of his responsibility as a common carrier, except by proving that he has performed his engagement, or has been excused from the performance of it, or been prevented by the act of God, or a public enemy”. It was also said to be “ necessary, in order to give due security to property, this rigid rule should obtain, and it has for 'years been enforced against common carriers. They are considered as insurers and are under that responsibility.” It is true, in that case, the rule was somewhat relaxed, as it was held that if it was the well established custom at way stations to give notice to the owner, and deliver at the office, the custom.would be reasonable, and the parties might be supposed to have contracted with reference to it. But even if such a custom existed at the station in this case there seems to have been an unreasonable delay in giving notice. The agent of the company says that the person to whom the package was addressed, resided some eight miles in the country from the office of delivery. This would seem to require no great effort to ascertain his residence and give the notice. But the evidence fails to show any delivery. Nor is there any evidence that the company were excused from delivering the package, or at least giving notice; nor does it appear that they were prevented by the act of God or a public enemy. Having received the money they are liable to account foi it.
*508 Nor can the company escape liability by showing that it first came to the hands of another company. The money seems to have been traced to then hands, and whether it was from the owner or a different company can make no difference as to their responsibility, their duties and liability being the same in either event. This is the well recognized rule on both sides of the Atlantic. Having given their receipt for the money, they, as insurers, must produce it, or show that it never came to their hands. In this case they do not appear to have receipted for the package, but it was proved that it came to their possession as carriers by express, and renders them equally responsible.
It is, likewise, insisted, that the court erred in giving the fifth instruction given for defendant in error. Upon an examination of the bill of exceptions, we find that no instructions have been embodied therein, or that any exception was taken by plaintiff to any instruction given by the court. It is true the clerk has copied a number of instructions into another part of the record, but whether they are the same which the court gave we are uninformed by the bill of exceptions. Instructions only become a part of the record by being incorporated into a bill of exceptions. And if they had appeared as a part of the record we could not consider whether they were or not properly given unless the bill of exceptions showed that they were excepted to when given. If it does not affirmatively appear that they were excepted to, the presumption must be indulged that they were given without objection. But we are of the opinion that this case should go to another jury to be passed upon by them, and the judgment of the court below is therefore reversed and the cause remanded.
Judgment reversed.