on board the defendants' vessel, on the defendants' refusal to deliver the goods to the owner, he brought trover, and was allowed to recover the value, although the defendants insisted on their right of lien for the freight.

6. "In the case of Saltus v. Everett,14 it is said, 'The universal and fundamental principle of our law of personal property is, that no man can be devested of his property without his consent, and consequently that even the honest purchaser, under a defective title, cannot hold against the proprietor.' There is no case to be found, or any reason or analogy anywhere suggested in the books, which would go to show that the real owner was concluded by a bill of lading not given by himself, but by some third person, erroneously or fraudulently.'

7. "The reason, and the only reason given, is, that he is obliged to receive goods to carry, and should therefore have a right to detain the goods for his pay. But he is not bound to receive goods from a wrongdoer. He is bound only to receive goods from one who may rightfully deliver them to him. And he can look to the title, as well as persons in other pursuits and situations in life. Nor is a carrier bound to receive goods unless the freight is first paid to him, and he may in all cases secure the payment of the carriage in advance.

8. " Upon the whole the court are satisfied that upon the adjudged cases, as well as on general principles, no right of lien for freight can grow out of a wrongful bailment of the goods to the carrier." In a recent English case it was held, that where carriers receive goods to be carried, there is no estoppel precluding them from disputing the title of the sender. To trover by such a sender it is an answer that the carriers have delivered the goods to the true owner at his request.15

*9. The carrier of passengers has a lien for his charges upon the baggage, but not upon the person of the passenger.16

10. And neither carriers nor warehouse-men have any lien upon goods for a general balance of account against the owner,17 more than in other cases of lien.

14 20 Wend. 267, 275.

15 Sheridan v. New Quay Co., 5 Jur. N. S. 248. 16 Story on Bailm. § 604; Wolf v. Summers, 2 Camp. 631; McDaniel v. Robinson, 26 Vt. R. 316.

17 Rushforth v. Hadfield, 6 East, 519; Hartshorn v. Johnson, 2 Halst. 108;

11. As we have said, this lien may be waived by delivery of the goods and the other usual modes of waiving liens, as by accepting security for the freight on time, or where, by the terms of the contract of carriage, the carrier is not to receive pay at the time of the delivery of the goods.18

12. And where the carrier is induced to deliver the goods to the consignee by a false and fraudulent promise of the latter that he will pay the freight as soon as they are received, the delivery will not amount to a waiver of the lien, but the carrier may disaffirm and sue the consignee in replevin.19

13. In general the last carrier may detain the goods, not only till his charges, but until all the charges during the transit, are paid. If this is not settled by law, in any place, the custom and course of trade may be shown.20 And in such case, and in all cases of lien for freight, if the goods be delivered without exacting payment of the dues, the owner is liable to the party entitled to demand the same, whether they consist of sums due for services, or advances for the services of other parties, made in the due course of the business.21 But this only extends to charges connected with the expense of transportation strictly.2

22

14. Neither the carrier, nor any other bailee having a lien, can sell the goods, at common law, in satisfaction of the lien. The appropriate remedy, in such case, is in equity.23

15. Payment of freight to a common carrier for the portion of a consignment delivered is no presumptive evidence, either of Green v. Farmar, 4 Burr. 2214; Leonard's Ex'rs v. Winslow, 2 Grant, 139: And in Hale v. Barrett, 26 Ill. R. 195, it was held, that where goods belonging to different owners are shipped by one bill of lading, the consignee cannot hold the goods of one for the charges upon the goods of the other. If a warehouse-man or consignee deliver goods upon the receipt of a promissory note of the owner for charges, he loses his lien. Ib.

18 Crawshay v. Homfray, 4 B. & Ald. 50.

19 Bigelow v. Heaton, 6 Hill, 43; s. c. 4 Denio, 496. See also Hays v. Riddle, 1 Sandf. 248.

20 Lee v. Salter, Lalor's Supp. to H. & Denio, 163. This lien includes all charges during the transit of warehouse-men and forwarders. See also Cooper v. Kane, 19 Wend. 386; Dawson v. Kittle, 4 Hill, 107, as to the effect of usage. 21 Jones v. Pearle, 1 Strange, 556; Pothonier v. Dawson, 1 Holt, N. P. C. 383; 2 Kent, Comm. 642; Hunt v. Haskell, 24 Maine R. 339.

22 Steamboat Virginia v. Kraft, 25 Mo. R. 76.

23 Fox v. McGregor, 11 Barb. 41; Jones v. Pearle, and cases supra, n. 14.

the delivery of the remainder of the consignment, or of release from liability on that account. The consignee in such case has an option, either to set off the loss against the freight, or pay freight and sue for the goods not delivered.24

16. But where the consignee declines accepting the goods, on the ground that the charges are unreasonable, or for any other cause, when the carrier is not in fault, he must still keep the goods safely, for a reasonable time at least. And where they were, under such circumstances, immediately returned to the consignor, in a remote place, it was held the carrier was liable. for the damages sustained, and there being a count in trover, it is intimated that such act amounts to a conversion.25

17. But the law gives no right to add to a lien upon a chattel a charge for keeping it till the debt is paid, when it is detained against the will of the debtor.26

18. A warehouse-man, with whom goods carried by a railway company are stored, may retain possession of the same, where so instructed by the company, until the back charges thereon are paid.27

* SECTION XXIII.

Time of Delivery.

1. Carrier must deliver goods in a reasonable | 4. Carriers excused by the custom and course time, or according to his contract.

of the navigation.

2. Delay caused by unusual press of business, 5. Two companies using the same line, one will not make carrier liable. not liable for delay caused by negligence of the other.

3. Or the loss of a bridge from an unusual

freshet.

6. Mode of proof in actions for injury to goods.

§ 173. 1. In the absence of a special contract, the carrier is bound to perform his duty, i. e. deliver the goods at their desti

24 Moore's Ex. v. Patterson, 28 Penn. St. 505.

25 Crouch v. Great Western Railw., 31 Law Times, 38, s. c. 2 Hurl. & Nor. 491. 26 Somes v. The British Empire Shipping Co., 6 Jur. N. S. 761, in the House of Lords, affirming the decision of the Queen's Bench and the Exchequer Chamber. This was the case of a ship detained till repairs paid, and the claim was for the use of defendant's dock during the term the ship was detained.

27 Alden v. Carver, 13 Iowa R. 253. But the carrier cannot insist upon payment of freight before he allows the consignee to inspect the goods. Lanata v. Grinnell, 13 La. Ann. 24.

VOL. II.

11

* 318

nation, or, at the end of his route, to the next carrier, in a reasonable time, according to the usual course of his business, with all convenient despatch.1 And if the carrier or his servant, within the scope of his employment and duty, enter into any special contract to deliver in any particular time or place, even beyond the terminus of his particular route, it will be binding, and the owner, it would seem, may recover damages, with reference to expected profits, had the goods been delivered in time.2 And the acceptance of goods by the consignee at a place short of their destination will not free the carrier from responsibility for damages incurred by breach of his contract of affreightment.3 Nor will the acceptance of a part afford any excuse for not delivering the residue. And where the consignee refuses to accept the goods, it is the duty of the carrier to take such course as he deems most for the interest of the owner, having also proper regard to the security of his own charges, and if he adopts such a course as men of common prudence would, he is not responsible for consequences.5 The consignee may at any time dispense with the mode of delivery adopted by the consignor, and the con

1 Raphael v. Pickford, 5 M. & G. 551; Broadwell v. Butler, 6 McLean, 296. But what is reasonable time is a question of fact, depending upon the circumstances of the case. Id. Nettles v. S. C. Railway, 7 Rich. 190; Id. 409; ante, § 151; Conger v. Hudson Riv. R. 6 Duer, 375. And the carriers are not justified in adopting a particular mode of forwarding the goods and thereby delaying the delivery, merely because that is the usual mode adopted. Hales v. London & North Western Railw. Co., 8 L. T. N. S. 421; s. c. 4 B. & S. 66.

2 Wilson v. York, Newcastle, and Berwick Railw., 18 Eng. L. & Eq. 557; Hughes v. G. W.‘Railw., 25 Eng. L. & Eq. 347. But in Boner v. The Merch. Steamboat Co., 1 Jones (N. C.), 211, it is said that the obligation upon carriers, by which they become insurers, does not extend to the time of delivery. Parsons v. Hardy, 14 Wendell, 215; Story on Bailm. 545 a. See also, upon this point, Sangamon & Morgan Railw. v. Henry, 14 Ill. R. 156; Kent v. Hudson River Railw., 22 Barb. 278; Lipford v. Charlotte & South Carolina Railw., 7 Rich. 409, and Nettles v. Same, Id. 190; Harmony v. Bingham, 2 Kernan, 99; 1 Duer, 209, where it is held, that if the party enter into a contract to deliver goods within a specified time, he cannot excuse himself by showing delay caused by inevitable necessity; and this is undoubtedly the established rule of law upon this subject, and in regard to all analogous subjects, where the party makes an absolute contract, not providing for any contingency or excuse. Angell on Carriers, § 294. See Nudd v. Wells, 11 Wisc. R. 407.

* Atkisson v. Steamboat Castle Garden, 28 Mo. R. 124.

* Cox v. Peterson, 30 Alabama R. 608.

• Steamboat Keystone v. Moies, 28 Mo. R. 243.

tract between the consignor and the carrier, as implied by law, without any special stipulations, will be to deliver to the consignee at his place of business, unless he shall otherwise order. And if the carrier, instead of delivering to the consignee, keep wheat at the station, and it is injured by remaining so long in the bag, the carrier will not be responsible to the consignor for the loss.6

2. But, if the carriers, being a railway company, make no special contract to deliver in any particular time, and a delay happen in the transportation, in consequence of an unusual press in business; the company having a reasonable equipment for all ordinary purposes, and the goods being carried with as much expedition as is practicable, under the circumstances, they are not liable for damages."

*3. But, where the delay in transportation happened in consequence of the loss of one of the company's bridges, by an unusual freshet, and in the mean time the price of the goods depreciated in the market, it was held that the company were not liable, this being the act of God. It was held, that for

• London & N. W. Railw. v. Bartlett, 5 L. T. N. S. 399. This was a case where wheat was sold to be delivered at the consignee's mill, and forwarded accordingly, and, on its arriving at the station two miles from the mill, it was kept there, in consequence of instructions by the consignee that wheat arriving for him should not be forwarded without his written order. And the consignee having examined the wheat at the station refused to accept it, and while it remained there it became deteriorated in quality and value. It was held, the consignor had no right of action against the carrier for not delivering the wheat at the mill, as the non-delivery was by order of the consignee. s. c. 8 Jur. N. S58; 7 H. & N. 400. See also Baker v. Steamboat Milwaukee, 14 Iowa R. 214. The property as between consignor and consignee depends upon the contract of the parties and not upon any inflexible rule of law.

' Wibert v. The N. Y. & Erie Railw., 19 Barb. 36; s. c. 2 Kernan, 245. In this case it is said, the measure of damages in such cases is not necessarily the difference in prices at the time it should have been delivered and that at which it was delivered. Galena & Chicago Railw. v. Rae, 18 Ill. R. 488.

But it is said in this case, that the company taking grain from wagons, in preference to taking it from private warehouses, is no unjust discrimination. But if the company's servants unjustly give preference to one party over others, in regard to transportation, they will be liable for all damage; and the company must receive freight according to their usual custom, even when that is effected by means of running their cars upon a side track and taking wheat from a private warehouse.