protection, after satisfying the legal demands of the agent.' The same rule has been applied in favor of the owner of goods, insured by his factor without being requested so to do. The bailee has an insurable interest in the goods, and on the happening of a loss by fire he recovers their full value; pays his own debt on account of the property, and holds the residue in trust for the owner.1 § 361. Wharfingers are answerable for their servants; and where they provide the men to do the work of unloading vessels, and permit no others to be employed thereon, they are responsible for the negligence of their servants, in unloading the goods, although they derive no profit from their labor. By keeping the wharf and furnishing the men, they make the business their own, and must answer for losses occurring through the negligent manner in which the work is done. As masters of the business, they must answer for the negligent conduct of their agents and servants. § 362. The wharfinger is bound to return or deliver the goods according to his contract; and it is his duty to deliver at the proper place and to a person authorized to receive the property.3 A wharfinger stands in the same relation to the title as a warehouseman; he derives his interest in the goods and his right of control over them from the owner; he admits the title of the party from whom he receives them, just as a tenant admits the title of the landlord under whom he holds. He does the same thing when after a sale of the goods in his hands he recognizes the right of the purchaser, by accepting a delivery order for the property: and he cannot afterward dispute the title thus acknowledged. IIe cannot set up title in himself existing at the time he received the goods; and it is believed he cannot set up title in a third person unless he connects himself with it. He can shew that the bailor's title has terminated since the bailment, that he has delivered the property to the owner, or that the property has been taken from him by legal process, or that a recovery has been had against him for the property in an action of which the bailor had notice. And 1 Sidaways v. Todd, 2 Stark. R., 400; Waters v. Monarch Life and Fire Ins. Co., 5 El. & Bl., 870; 25 L. J. Q. B., 102; 13 Penn., 218; 19 N. Y., 401; 37 N. Y., 78. 2 Gibson v. Inglis, 4 Campb., 72; Coggs v. Bernard, 2 Ld Raym., 909; ante § 343. Cobban v. Downe, 5 Esp., 41; Leigh v. Smith, 1 C. & P., 638; R. & M., 224. Hall v. Griffen, 3 M. & Scott, 732; 10 Bing., 246; Woodley v. Coventry, 2 H. & C., 164; 9 Jur., 2 C. & M., 531; 4 Tyr., 290. 6 Western Tr. Co. v. Barber, 56 N. Y., 544, 552; Biddle v. Bend, 6 Best & Smith, 224; Cook v. Holt, 48 N. Y., 275; Burton v. Wilkinson, 18 Vt., 186. though guilty of a conversion of the goods, in refusing to deliver them on demand, he may shew in mitigation of damages a subsequent seizure and sale of the goods under a process against the bailor.1 § 363. The law considers the substance of a contract, rather than its form. A contract made by a carrier to forward goods to a point beyond the termination of his line, makes him a common carrier for the whole distanco in substance his agreement is to carry and deliver the goods to the place of destination, and he does not become a mere forwarder at the termination of his line. His contract covers the entire transportation, including cach transshipment; and the law enforces the contract.2 It assumes also that the agent of a railway company may bind his principals by a contract for carriage over other roads running in connection with his own; and the validity of the contract does not depend upon the agent's authority to bind the connecting lines.3 The contracting carrier assumes the liability of the connecting lines engaged in completing the transportation. Without an express contract, the carrier in this and other States of the Union, does not by receiving goods marked or addressed to a place beyond the terminus of his route, impliedly contract to carry them to the place of their destination; his implied engagement is to carry them to the end of his own route, and there deliver them to the next carrier; 5 and until the delivery is made his liability 1 Higgins v. Whitney, 24 Wend., 379; Sherry v. Schuyler, 2 Hill, 204; Curtis v. Ward, 20 Conn., 204. It is not the seizure that gives the defence in mitigation of damages, but the application of the proceeds of the property to the payment of the bailor's debts. Per EARL, C., in Ball v. Liney, 48 N. Y., 6. Wilcox v. Parmelee, 3 Sand. R., C10; a contract to forward goods from New York to Fairport, Ohio; the defendant's line terminating at Buffalo, from which the goods were to be shipped by vessel: held a carrier's contract to Fairport. The same interpretation is given to a similar contract in Read v. Spaulding, 5 Bosw., 94, 404; S. C., 30 N. Y., C30; see also Fairchild v. Slocum, 19 Wend., 39; Weed v. S. and S. R. R. Co., 19 Wend., 531; Condict v. Grand Trunk R. Co., 54 N. Y., 500. The contract is to be enforced in its true sense; and the circumstances may show that the agreement was in fact that of a forwarder from the end of the carrier's route: Reed v. U. S. Ex. Co., 43 N. Y., 462. 3 Hart v. R. and S. R. Co., 8 N. Y., 37; 53 N. Y., 363. ♦ Quimby v. Vanderbilt, 17 N. Y., 303; Williams v. Vanderbilt, 23 N. Y., 217; Buffett v. Troy & Boston R. R. Co., 40 N. Y., 163, and note 179; Milnor v. N. Y. & N. II. R. R. Co., E3 N. Y., 333; Manhattan Oil Co. v. C. A. R. R. & T. Co., 54 N. Y., 197. The English rule is conceded to be different. Root v. The Great Western R. R. Co., 45 N. Y., 524; Burtis v. Buffalo and State Line R. Co., 24 N. Y., 269. These cases also involve the construction of tho N. Y. statute. See Lamb v Camden & Amboy R. & Tr. Co., 46 N. Y,, 271; Babcock v. L. S. & M. S. R. Co., 49 N. Y., 491. remains undiminished.1 His duties at the end of his route, are in some particulars like those of a forwarder; he must send the goods forward according to his contract, whether expressed or implied; and in the absence of an agreement, he must send them by a responsible carrier, pursuant to his instructions. But he does not act as a forwarder, or simply under the liability of a wharfinger in the transshipment of the goods.' § 364. LIENS. A wharfinger has a lien upon the goods entrusted to him, to the extent of his reasonable charges; a general lien on the goods of his customer in his possession, for his balance in respect of freight and wharfage.1 His general lien for the balance of his accounts, does not cover charges for labor or for warehouse-room, where there is no contract to that effect, express, or implied from a general continued and undisputed usage.5 1 Johnson v. N. Y. C. R. R. Co., 31 Barb., 196; S. C., 33 N. Y., 610 ; 34 N. Y., 497; 3 Lansing, 265. 2 Johnson v. N. Y. Central R. Co., 33 N. Y., 610; Hinckley v. N. Y. C. & H. R. R. Co., 56 N. Y., 429; St. John v. Van Santvoord, 6 Hill, 157; 8 Cowen, 223. 3 McDonald v. Western R. R. Cor., 34 N. Y., 497; Mills v. Michigan Central R. R. Co., 45 N. Y., 622; 52 N. Y., 262. Naylor v. Mangles, 1 Esp., 103; Spears v. Hartley, 3 Esp., 81; Rushforth v. Hadfield, 6 East, 519; 7 East, 224; seo Sage v. Gittner, 11 Barb., 120; Dresser v. Bosanquet, 4 B. & S., 460; 116 E. C. L. R. Holderness v. Collinson, 1 M. & R., 55; 7 B. & C., 212. In Naylor v. Mangles (1 Esp., 109), Lord Kenyon said liens were either by common law, usage or agreement; that a lien from usage was matter of evidence; that the usage in the present case had been proved so often it should be considered a settled point; and that liens by common law arose where a party was obliged to receive the goods. In Spears v. Hartley (3 Esp., 81), Lord Eldon considered the wharfinger's lien for the balance of a general account as perfectly settled, and that he might hold the goods under it after the demand is barred by the statute of limitations. In Holderness v. Collinson (7 B. & C., 212), the general lien for wharfage was admitted; but the court refused to allow a lien claimed for laborage, (comprising landing, weighing and delivering) and warehouse rent; because the custom proved was not sufficiently certain and uniform to lay a foundation upon which an express or implied contract could be found, to act upon it. In Rushforth v. Hadfield, 6 East, 519, an effort was made to establish the carrier's right to a lien for his general balance on the ground of a general usage; and the court allowed that a contract to that effect might be established by proof of a usage or course of dealing between tho parties, and declined to uphold the usage as creating a rule of law. S. C. 7 East, 224, the court held the same doctrine, that the claim was against the general law of the land, and therefore to be regarded with jealousy. In Kirkman v. Shawcross, 6 Term, 14, the court held valid a general agreement entered into by a number of dyers, dressers aud bleachers, that they would not receive goods to be dyed, dressed or bleached, but on condition that they should respectively have a lien on such goods for their general balance; and that persons afterward delivering goods to them with knowledge of it, must be taken to have assented to the terms of the agreement. A. D., 1794. His lien does not attach unless the goods are landed on his wharf.1 And where the goods in his hands are sold, and the owner pays his charges to the date of the sale, giving him notice of the fact, he cannot acquire any further demand against the vendor on account of the goods.2 The wharfinger has a lien on a vessel for wharfage; and where the vessel is secretly or wrongfully removed from the wharf, and afterward brought back without force or fraud, his lien is revived. The law gives him a lien as a means of collecting his charges; and where the vessel departs with the goods, leaving the wharfage unpaid, the wharfinger may recover his demand from the owner.4 The lienholder waives or loses his lien by surrendering the possession of the property ;5 or by entering into a contract or into a course of dealing under which goods are to be received and delivered, without requiring prepayment of charges thereon." This results from the nature of a lien; which is not an estate or interest in the property, neither a jus ad rem, nor a jus in re, but a simple right to retain the property till the charges thereon are paid." 8 § 365. A factor has a particular lien on the goods entrusted to him, for his charges incurred on their account; a general lien on the goods in his possession for the balance of his account arising in the course of dealings between him and his principal; and also a lien upon the proceeds of his principal's property sold by him as a factor, and upon the securities taken by him on the sale. His lien covers advances and liabilities assumed, commissions and customary charges; and it attaches to the goods when they come into his lawful possession. He acquires his lien when he accepts the consignment on the terms proposed to him, and receives the property.10 Until the property reaches him, the consignor has the power, even in violation of his agreement with the con Seyds v. Hay, 4 Term R., 260. 2 Barry v. Longmore, 12 A. & E., 639. 3 The Phebe, Ware, 354. 9 Gilpin R., 101; Fitzsimmons v. Milner, 2 Rich. R., 370. 5 Jordan v. James. 5 Ham. R., 88; Jones v. Pearle, 1 Str., 556; Houghton v. Mathews, 3 Bos. & Pull. R., 485. 6 Dunham v. Pettee, 1 Daly, 112; Crawshay v. Homfray, 4 B. & Ald., 50 ; Chase v. Witmore, 5 M. & S., 306; Hutton v. Brugg, 2 Marsh., 345. 'Meany v. Head, 1 Mason R., 319. * Bryce & Rennie v. Brooks, 25 Wend., 367, 374; Green v. Farmer, 4 Burr., 2218; Walker v. Birch, 6 Term R., 262; Vail v. Durant, 7 Allen, 408; Meyer v. Jacobs, 1 Daly, 32. 9 Bank of Rochester v. Jones, 4 N. Y., 497; Mitchell v. Edo, 11 Adolph. & Ellis, 888. signee, to pledge the bill of lading as a security for the payment of a draft drawn against the consignment; and where this is done, the consignee must accept the draft or he will not be entitled to receive the property. The transfer of the bill of lading for value, prevails against the consignee or factor's lien for a general balance.2 § 366. Receiving goods with knowledge that advances have already been made upon them, the factor receives them subject to existing rights.3 But his lien for his general balance will attach, where he receives the goods without any knowledge of such previous advances. And where the consignee or factor himself makes advances upon the property by accepting and paying a draft with the bill of lading attached, he is entitled to protection as a bona fide purchaser; his right is superior to that of the unpaid vendor of the goods;5 he is entitled to hold the property. Not only has the factor a right to hold the goods as security for advances made upon them; it is his duty to do so; he must look to the proceeds of the sale as the primary fund out of which they are to be paid. After that is exhausted, he may have recourse to his principal for the balance remaining unpaid.7 § 367. A factor is a commercial agent; and a factor for sale, under advances, is something more than an agent; he is a conditional purchaser for value, with a right to sell the goods, unless the owner on request repays the advances. Receiving goods to sell under a del eredere commission, guaranteeing his sales, he becomes a purchaser in effect, as soon as the purchase money becomes due on the sales made by him." 8 § 368. The law gives the factor a lien for his advances and reasonable charges, arising or made in the course of his business; it does not give him a lien to secure debts which accrued prior to the commencement of his agency; 10 nor to secure a liability incurred by him merely as surety 'Marine Bank of Chicago v. Wright, 48 N. Y., 1. 2 Conrad v. Atlantic Ins. Co., 1 Peters, 444; Allen v. Williams, 12 Pick., 297; First Nat. Bank of Cincinnati v. Kelly, 57 N. Y., 34, and cases thero cited. 3 Allen v. Williams, supra; Barry v. Longmore, 12 Adol. & Ellis, 639; see Buckley v. Packard, 20 John. R., 421. 4 Reynolds v. Davis, 5 Sandf., 267. 5 Rawles v. Deshler, 28 How. Pr. R., 66; S. C., 3 Keyes, 572. 6 Wood v Orser, 25 N. Y., 348, 7 Gihon v. Stanton, 9 N. Y., 476. Parker v. Brancker, 22 Pick., 40; 3 N. Y., 62; Brown v. McGraw, 14 Peters, 479; EDWARDS on Bills and Notes, 422-424. 9 That the contract is original and not within the statute of Frauds, see Wolff v. Koppel, 5 Hill, 458; 2 Denio, 368; and Sherwood v. Stone, 14 N. Y., 267; 47 Barb., 9; 36 N. Y., 334. 10 Houghton v. Mathews, 3 Bos. & Pull., 485, 488. |