service being rendered at his request, there is no basis on which to raise an implied contract to pay for the transportation;1 and therefore no legal demand to be secured by a lien."

3

§ 647. The carrier acquires a lien on the goods received for convey. ance, as soon as his liability attaches; as soon as he receives the goods on a contract of carriage. The contract being as we have seen entire, the shipper or customer delivering the goods, can only take them back on paying the freight. On the same ground, a passenger securing a seat in a coach and delivering his baggage, cannot resume possession of it without satisfying the carrier's reasonable charges. Of course a delivery of the baggage must be made by a passenger, before the lien can attach; it must be made by a person who has paid his fare, or is about to enter on the trip or journey. It should be made after, or in the act of securing his passage.

7

§ 648. The carrier has a lien on a passenger's baggage for his fare, and may detain it in his possession until the same has been paid; but cannot detain the person of his passenger, and cannot seize any property belonging to him which has not been delivered into his custody, as a security for the passage money. The contract for the carriage of the passenger and his baggage is one and entire; and since, in contemplation of law, the compensation for the conveyance of baggage is included in the fare, the carrier has a lien on the baggage for the amount due him. Whether the delivery of the baggage be considered an independent bailment of goods to be carried, or only accessory to the contract for the carriage of the person, the lien would attach in either case; but on the theory of a separate contract, on which some of the earlier cases were decided, the lien would be confined to the price or compensation for the carriage of the baggage."

In truth, there is but one contract, which is indivisible, and covers both the freight and fare. In an action of trover against the master

1 Gilson v. Gwinn, 107 Mass., 126; Everett v. Saltus, 15 Wend., 474; Fitch v. Newberry, 1 Doug., Mich., 1; Clark v. Lowell, 9 Gray, 231; 20 Wend., 267; Robinson v. Baker, 3 Cush., 137; Brower v. Peabody, 13 N. Y., 121.

2 Martin v. Smith, 58 N. Y., C72.

3 Tindal v. Taylor, 4 Ellis and B., 219; 28 Eng. Law and Eq., 210; Keyser

V. Harbeck, 3 Duer, 373; Davis v. Crawford, 4 Const. S. C., 401.

Ante § § 637, 6:39; 2 E. D. Smith, 195; 10 English (Moak), 25.

Higgins v. Bretherton, 5 Carr. and P., 2.

6 Ante § 570-576.

7 Wolf v. Summers, 2 Campb. R., 631; Mason v. Thompson, 9 Pick. R., 288; 104 Mass., 117.

8 Orange County Bank v. Brown, 9 Wend., 85, 93.

9 Middleton v. Fowle, 1 Salk., 182; 2 Bos. and Pull., 419.

of a vessel, for a writing-desk and a trunk, containing wearing apparel, detained for passage money, Lawrence, J., said: "The master of a ship has certainly no lien on the passenger himself, or the clothes which he is actually wearing when he is about to leave the vessel; but I think the lien does extend to other property which he may have on board, and that in refusing to deliver them up he is not guilty of any tortious conversion." Passage money and freight are the same thing in legal effect, and there is no lien upon the person for either of them.1

§ 649. The carrier has, as we have seen, a specific lien on the goods carried by him, for their transportation; that is, a lien on each parcel for the price of its transportation, capable of being detached from the mass, as the same is delivered, and enforced against the residue. E. g., after having delivered part of a cargo of coal or a part of a single consignment of grain, the carrier may detain the residue as security for the entire freight. He cannot do this where the goods covered by the consignment, belong to different owners; or where, though covered by the same consignment, the goods have been sold to different parties.5

3

4

What shall constitute a delivery, depends, under some circumstances, upon the intention of the parties. A transfer of goods from a ship to a warehouse, on the understanding that they are not to be considered as delivered, until the freight is paid, will not divest the carrier's lien; 6 nor will a landing of goods on a wharf, with a direction to the wharfinger to detain them till the freight is paid."

§ 650. The right of lien is one of the terms implied by law in the contract; it accompanies the possession, and is not extinguished by a delivery of the goods to an agent with notice of the lien and for the purpose of preserving it; that is, where the carrier has a right to store the goods. So, also, the lien of the master of a vessel on a cargo for

1 Wolf v. Summers, supra; Sunbolf v. Alford, 3 M. and W., 248; Ramsden v. Boston & Albany R., 104 Mass., 117.

2 Close v. Waterhouse, 6 East, 525; 6 East, 622; Shmidt v. Blood, 9 Wend., 268; the point is further discussed in McFarland v. Wheeler, 26 Wend., 467, 478; Boggs v. Martin, 13 B. Monroe, 229; Fuller v. Bradley, 25 Penn. St., 120.

3 Lane v. Old Colony R., 14 Gray, 143.

4 Hale v. Barrett, 26 Ill., 195.

5 Wallace v. Woodgate, Ryan and M., 193; Lodergren v. Flight, 6 East, 622; Bernal v. Pim, 1 Gale, 17.

6 Bags of Linseed, 1 Black., 108; Sears v. Wills, 4 Allen, 212.

7 Wilson v. Kymer, 1 Maule and S., 157; Faith v. East India Co., 4 B. and

Ald., 630; Horncastle v. Farran, 3 B. and Ald., 497.

Western Transp. Co. v. Barber, 56 N. Y., 544, 548; Mors-le-Blanch v. Wilson, 5 English (Moak), 286, 296, Brett, J. Bickford v. Metropolitan S. Co., 109 Mass., 151.

freight and charges, may be assigned; and an action of trover for the cargo cannot be maintained against the assignee, unless before suit brought the lien be discharged, or a tender in satisfaction is made. And the lien is not waived by the mere omission to place the refusal to deliver or to account, on the specific ground of lien; as where the assignee merely omitted to assert the precise nature of the claim.1

§ 651. A voluntary surrender of the goods to the owner or consignee operates as a waiver or release of the lien. This results from the very nature of the lien; namely, "a right of one man to retain the property of another in his possession, until his legal charges on it are satisfied."

The lien also ceases, where the carrier becomes liable to the owner of the goods for damages to them exceeding the charge for freight. It is also waived by a contract inconsistent with its assertion; as where it provides for the payment of the freight at a time subsequent to the delivery of the goods, or at a time specified without reference to the time of the delivery. The lien is not waived by a special agreement providing for the payment of freight, where the same is consistent with the continuance of the lien.5

§ 652. The carrier's lien covers his reasonable charges on the goods, including the amount advanced by him thereon to a former carrier, being his reasonable charges upon the goods. The custom and course of business justify a carrier receiving them from another in the line of transit, in advancing the freight which has accrued upon the goods and in afterwards holding them as a security for the total charges on the line; with this qualification that the carrier advancing freight receive the goods, in apparent good order. A carrier receiving goods that are to be sent forward over successive lines acts for the owner; and though he makes a mistake and sends them forward on a wrong line, the carrier advancing freight upon and thus conveying the goods, is entitled to hold them as a security for his reasonable charges and advances."

1 Everett v. Coffin, 6 Wend., 603, 603. Refusing on one ground, he cannot after that assume another. Judah v. Kemp, 2 John. Cas., 411.

2 McFarland v. Wheeler, 26 Wend., 467; Herbert v. Hallett, 3 John. Cas, 93; Sweet v. Pym, 1 East, 4; Dicas v. Stockley, 7 Carr. and P., 587.

3 Dyer v. Grand Trunk R. Co., 42 Vt., 441; Peebles v. Boston & Albany R., 112 Mass., 498.

V.

4 Pinney v. Wells, 10 Vt., 104; Chandler v. Belden, 18 John. R., 157; Trust

Pirsson, 1 Hilton, 292, 297; 2 Bosw., 489, 498; 3 Denio, 590; Lucas v. Nock. 'ells, 4 Bing., 729.

The Kimball, 3 Wallace, 37.

6 Monteith v. Kirkpatrick, 3 Blatchf., 279; Bissell v. Price, 16 Ill., 408; Bow. man v. Hilton, 11 Ohio, 303; Lee v. Salter, Hill and Denio, 163.

7 Briggs v. Boston &c. R. R. Co., 6 Allen, 246.

The law and custom justify the last, in a line of successive carriers, in advancing the freight due on the goods; they do not authorize him to advance all claims upon the goods. If a part of the freight has been paid in advance, it cannot be collected the second time. It is the duty of each carrier to ascertain the authority of the party from whom he receives the property; and it is no more than just to leave the carrier to his action, where he advances more than is due, on goods received by him from a prior carrier.

2

§ 653. When the general owner of a vessel parts with her, under a charter-party for a specified time or for a given voyage, and delivers the possession and control of the vessel to the charterer, the latter is considered the owner for the voyage, and has a lien for freight; or he may maintain an action for it where he has delivered the cargo.3 The charterer is deemed the owner for the voyage, where he has under the contract the exclusive possession, command and navigation of the ship. But where the general owner retains the possession, command and navigation of the ship, and contracts to carry a cargo on freight for the voyage, the charter-party is considered a mere affreightment, sounding in covenant; and the freighter is not clothed with the character or legal responsibility of ownership. In the first case, the general freighter is responsible for the conduct of the master and mariners during the voyage. In the latter case the responsibility rests on the general owner.

If the vessel is in effect let to hire for a voyage or for a term, the charterer acquires for the time being a property in the vessel, and stands in the place of its owner; and is entitled to demand and collect the freight. Whether he is to be considered the owner or not, depends upon the terms of the charter-party, and the interest which is given to the the charterer under it.5

§ 654. The carrier's lien is, as we have said, the right to detain the goods entrusted to him, until his hire or reasonable reward has been paid; it is a means of enforcing payment, but does not authorize him to sell the goods for the purpose of paying himself.

It is neither a

1 Travis v. Thompson, 37 Barb., 236; 1 Doug. (Mich.), 1.

2 Clark v. Lowell R., 9 Gray, 231.

3 Clarkson v. Edes, 4 Cowen, 470; Wilson v. Morgan, 4 Robt., 58, 67; Holmes

v. Pavenstedt, 5 Sandf., 97.

Marcadier v. Chesapeake Ins. Co., 8 Cranch, 49.

6 Gracie v.

Palmer, 8 Wheat., 605; Hutton v. Bragg, 71 Taunt., 14; Mactaggert v. Henry, 3 E. D. Smith, 390.

6 Yelv., 67; Jones v. Thurloe, 8 Mod., 172; Jones v. Pearle, 1 Str., 556; Chase v. Westmore, 5 Maule and Selw., 185; 5 Wend., 33.

jus ad rem, nor a jus in re, but a simple right of detainer; hence, it is not attachable as personal property, or as a chose in action of the person entitled to it. True, the carrier has a special property in the goods entrusted to him, whilst in his possession, so that he may maintain an action against any one who interferes with them, or for any injury done to the goods-a remedy given him for the defence of the property, based upon his right of possession.

It is clear that the carrier's lien cannot be separated from his demand for services bestowed upon the goods; it being a right accessary to that demand, accorded to the carrier as a security for its payment. And as it grows out of the relation between the carrier and his employer it cannot be continued after that relation has terminated, by a tender of the amount due or by a voluntary delivery of the goods.

The interest of the general owner of goods in the hands of a carrier, may be reached by his creditors; subject to the carrier's lien. The goods may be taken on an attachment, or the carrier may be summoned as a trustee for the owner; or the goods may be taken from the carrier by the true owner, in an action of replevin, so as to defeat his lien.5

X. REMEDIES AGAINST THE CARRIER.

§ 655. In an action against a common carrier for refusing to receive goods for carriage, it is necessary that the complaint should allege facts sufficient to constitute a cause of action; it must allege that the defendant was common carrier, at the time in question, of goods and chattels of the kind tendered to him, specifying his route; that the plaintiff tendered to him as such common carrier at a certain place, to be named, where he was accustomed to receive such articles, goods of a certain value for carriage to a given place on his route; that the defendant had the convenience for receiving and conveying the same as requested; that the plaintiff was ready and willing, and then offered to pay to the defendant such sum of money as the defendant was legally entitled to receive for the receipt and carriage of the goods; and that

1 Meany v. Head, 1 Mason R., 319. The demand for the freight may be reached by a creditor of the carrier. Ante § 316.

2 Taylor v.

-, 2 Ld. Raym., 792; ante § 614; Fitzhugh v. Wyman, 9 N. Y., 559; Merrick v. Brainard, 38 Barb., 574.

3 Meany v. Head, 1 Mason, 319; ante §§ 101-105. When a general owner brings an action for injury to the goods, the carrier's lien is no defence unless it is interposed by his authority. Ames v. Palmer, 42 Maine, 197.

• Adams v. Scott, 104 Mass., 164; Van Winkle v. U. S. Mail S. Co., 37 Barb.,

Bliven v. Hudson River R. Co., 36 N. Y., 403; 37 Barb., 122.