CJnrnfU ICatu ^rlynnl ICibrary 
 
Cornell University Library 
 KF 940.V28 
 
 Elements of the law of bailments and car 
 
 3 1924 018 857 551 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018857551 
 
ELEMENTS 
 
 OF THE 
 
 ERRATA. 
 
 Strike out " of," 10th word, line 8, page 6. 
 
 Strike out " incorporated " and insert " incorporeal," 7th word, line 3, sec. 18. 
 
 Strike out " bailor's ' and insert " bailee's," 4th word, line 6, page 10. 
 
 Strike out " bailor " and insert " bailee," 9th word, line 4, sec. 28. 
 
 Strike out " bailee and insert " bailor-,". 8th word, line-2-3, page 43 (sub. b). 
 
 Strike out •' commoda<M))i " and insert " rnandatum,'' 11th w^rd, line 11, 
 
 page 49 (sub. /i). 
 Strike out "mandatum '' and insert " commodatum," 3d word, line 32, page 
 
 63. 
 Strike out "lender" and insert " borrower," 8d word, line 15, sec. 110. 
 Strike out " receiving " and insert " leaving," 2d word, line 16, page 134. 
 Strike out " bailee's " and insert " plaintiff's," 2d word, line 29, page 134. 
 Strike out " bailee's " and insert " bailor's," 7th word, top line, page 146, sec. 
 
 198. 
 Strike out "nature " and insert "share," 11th word, line 17, page 163. 
 Strike out "their "and insert "that,'' 1st word, line 25, page 163. 
 Strike out " presence " and insert " pursuance," 6th word, line 10, page 215. 
 Strike out "or pledgor," 8th word, line 6. and 1st word, line 7, page 240. 
 Strike out " pledgee " and insert " pledgor," 11th word, line 16, and 5th word, 
 
 line 30, page 261. 
 Strike out "carrier" and insert "shipper," 3d word. 16th line, sec. 511. 
 
 CHICAGO 
 CALLAGHAN AND COMPANY 
 
 1902 
 
ELEMENTS 
 
 OP THE 
 
 LAW OF BAILMENTS 
 
 AND 
 
 CARRIERS 
 
 INCLUDING 
 
 PLEDGE AND PAWN AND INNKEEPERS 
 
 \ BY 
 
 PHILIP T.^'VaN ZILE, LL. D. 
 
 Dean or the Dstboit Collegs ot Lait 
 
 CHICAGO 
 
 CALLAGHAN AND COMPAI^Y 
 1902 
 
Copyright, 1902, 
 
 BY 
 
 CALLAGHAN AND COMPANY. 
 
 STATE JOUENAL PRINTING COMPANY, 
 
 Printers and Stebeotypers, 
 
 madison, wis. 
 
TO THE 
 
 ALUMNI 
 
 AND 
 
 STUDENTS OF THE DETROIT COLLEGE OF LAW 
 
 THIS WORK IS RESPECTFULLY DEDICATED 
 
PREFACE. 
 
 In the publication of this work it is not expected that any 
 new principle of the law of bailments and carriers will be pro- 
 mulgated, for we fully realize the truthfulness and wisdom of 
 that which was said three thousand years ago, " the thing that 
 hath been, it is that which shall be; and that which is done is 
 that which shall be done; and there is no new thing under the 
 sun." 
 
 For ten years the writer has been engaged as a lecturer upon 
 these subjects in the Detroit College of Law, and the interest 
 awakened while thus engaged suggested the writing of this 
 book. 
 
 The principles governing the law here discussed are by no 
 means new; they are as old as the civilization of the races; as 
 the recognition of " law and order," and the property rights 
 of men. 
 
 The needs -of men and the advancement of business have at 
 all times brought to the attention of courts and authors new 
 developments and situations for the application of the settled 
 principles of the law; and so the most that can be said is, that 
 while the law upon these subjects has been and is a development, 
 it is a development of the application of principles rather than 
 a creation of new and unknown rules of law ; and all that any 
 writer can expect to accomplish is to note this development by 
 way of the application of these known legal principles to the 
 new and novel questions of fact that the great business world 
 is constantly presenting for the consideration of the courts and 
 the legal profession. 
 
 The development of the law of carriers has been largely the 
 result of the demands of public policy. It was the demand of 
 public policy that laid upon the common carrier the extraor- 
 dinary'^ liability; and it is public policy that, recognizing the 
 advance of civilization and the lighting up of the dark spots of 
 earth, will modify that harsh and extraordinary liability, or at 
 
VI PREFACE. 
 
 least allow it^o be done by contract based upon valuable con- 
 sideration. These questions are interesting to the student and 
 the practitioner. 
 
 The carrier of passengers, his relation to the passenger, and 
 his liability have undergone interesting developments by rea- 
 son of the appearance and adoption of the many important 
 improvements in the vehicles of the carrier and the motive 
 power introduced during the last decade. 
 
 There are no subjects of the law that are more replete with 
 progressive reasoning from established principles than the sub- 
 jects we have here treated. But while the past has yielded to 
 us the settlement of interesting questions in the application of 
 the law of bailments and carriers, the future promises ques- 
 tions of full greater interest in every department of business 
 to which these subjects relate. They are continually taking 
 on new activities and developing new and important principles. 
 From the messenger service to the management of the great 
 trunk lines of railroads, all are teeming with the push and im- 
 provements of the age. Electricity promises new fields not 
 yet explored, but soon to be met. Improved machinery and 
 appliances, the great increase in the volume of business, give 
 an added interest to the law of bailments and carriers; and 
 one who writes to-day stands merely upon the threshold, and 
 can but contemplate with amazement the ever onsweeping 
 business and industries of men that are constantly present- 
 ing to the lawyer and the court new and important questions. 
 Our past and present have, indeed, been important, but the 
 future must be more so. 
 
 Should this work be instrumental in aiding the student of 
 the law in his researches, and merit the commendation of ray 
 brethren at the bar, the writer will feel repaid for his en- 
 deavor. 
 
 Detroit, Mich., January 1, 1902. P. T. V. 
 
TABLE OF CONTENTS. 
 
 Eefereoces are to sections. 
 
 PART FIRST 
 
 ORDINARY BAILMENTS. 
 
 CHAPTER I. 
 
 THE RELATION. 
 
 Of the history and origin 1 
 
 Definition , 3 
 
 - Judge Story's definition and criticism 3 
 
 Chancellor Kent's definition and criticism 4 
 
 Judge Story sustained 5 
 
 Purpose of the bailment may necessitate a change in condition 6 
 
 A further exception as to delivery 7 
 
 The Roman mutuum , 8 
 
 Grain stored in elevators 9 
 
 Flouring-mills 10 
 
 The parties to a bailment 11 
 
 Who may be bailor or bailee 13 
 
 Competency of parties 13 
 
 These disabilities a shield but not a sword 14 
 
 An agent may create the relation 15 
 
 Corporations 16 
 
 Some veiy common examples of bailments 17 
 
 The kind of property that may be the subject of bailment 18 
 
 Delivery and acceptance 19 
 
 Title of bailor 20 
 
 Bailor may sell or incumber property — Title of bailee 21 
 
 Bailor must exercise good faith — Must not expose bailee to.danger. . 23 
 
 Bailment or sale 23 
 
 Commingling of grain on storage 24 
 
 A bailment, a sale, or a gift — How determined 25 
 
Vlll TABLE OF CONTENTS. 
 
 References are to sections. 
 
 CHAPTEE II. 
 
 OF THE CLASSIFICATION OF BAILMENTS. 
 
 Roman classification adopted by authors 26 
 
 Modern classification upon the theory of recompense or no recom- 
 pense 37 
 
 Modern classification includes earlier classification 28 
 
 Ordinary bailments 89 
 
 Exceptional bailments 3(^ 
 
 Chart showing classification of bailments 31 
 
 CHAPTEE III. 
 
 OF THE RIGHTS, DUTIES AND LIABILITIES GENERALLY OF 
 BAILOR AND BAILEE. 
 
 Object of chapter 32 
 
 Gratuitous and non-gratuitous bailments 33 
 
 Consideration 34 
 
 Benefit of bailor, or bailee, or both 35 
 
 Negligence or diligence 36 
 
 Chart showing duties and liabilities 37 
 
 What is diligence and what is negligence 38 
 
 Definition generally accepted 3& 
 
 Every case ruled by its own circumstances 40 
 
 High diligence — Gross negligence 41 
 
 Diligence and negligence — Questions of law and fact 43 
 
 Classification of conditions and circumstances 43 
 
 CHAPTEE ly. 
 
 SOME FURTHER GENERAL PRINCIPLES TOUCHING RIGHTS AND 
 LIABILITIES OF PARTIES TO BAILMENT. 
 
 An element of agency 44 
 
 Under circumstances may bind bailor 45 
 
 Right to use the property 46 
 
 Unwarranted use would render the bailee liable 47 
 
 Bailee may protect the property and his interest 48 
 
 Skilled bailee 49 
 
 Rule not always carefully stated 50 
 
 Special deposits in banks 51 
 
 Determining negligence 5^ 
 
 Honesty and good faith demanded 53. 
 
 Bailee may protect himself against claim of third parties 54 
 
 What would excuse liability 55 
 
 Unlawful tortious possession would render bailee liable for injury or 
 
 loss 55 
 
 Rights and duties to third parties 57 
 
 Bailee against third parties 5S 
 
TABLE OF CONTENTS. IX 
 
 References are to sections. 
 
 Modifying or enlarging responsibility by contract 59 
 
 How far can the bailee lessen his responsibility by contract 60 
 
 Redelivery to bailor 61 
 
 Not always required to redeliver the specific property 63 
 
 Excuses for non-delivery 63 
 
 Conversion of the property 64 
 
 Bailee's right to compensation and to a lien upon the property 65 
 
 Agreement for compensation, express or implied, necessary to create 
 
 lien 66 
 
 If no statute or express contract creating common-law lien 67 
 
 Two kinds of liens 68 
 
 Delivery to the bailee for the purpose of the bailment necessary to 
 
 the establishment of the lien 69 
 
 Possession of the property an essential 70 
 
 The finder of property may have lien 71 
 
 Extinction of the lien — Payment or tender . . „ 72 
 
 The lien may be waived 73 
 
 Lien once lost cannot be revived 74 
 
 Bight of the bailor to compensation 75 
 
 Enforcement of the lien of bailee 76 
 
 CHAPTER Y. 
 
 TEEMINATION OF THE BAILMENT. 
 
 The several ways 77 
 
 By expiration of the time for which the property was bailed 78 
 
 By reason of the accomplishment of the object 79 
 
 By act of parties 80 
 
 By operation of law 81 
 
 By destruction of the bailed property 82 
 
 By death of the bailee 83 
 
 By incompetency of the parties 84 
 
 CHAPTER VI. 
 
 LIABILITY OF THE BAILOR AND BAILEE WHEN THE BAILMENT 
 IS FOR THE SOLE BENEFIT OF THE BAILOR. 
 
 These bailments of two kinds 85 
 
 Mandatum > 86 
 
 Depositum 87 
 
 Use of deposit 88 
 
 Special, not general deposit .' 89 
 
 Quas^-deposits 90 
 
 Subject limited 91 
 
 Distinction between depositum and mandatum 92 
 
 A contract relation 93 
 
 The bailee's liability 94 
 
 Authorities not entirely harmonious 95 
 
X TABLE OF CONTENTS. 
 
 References are to sections. 
 
 For the sole benefit of bailor 96 
 
 Even indirect benefit would change the class of bailment 97 
 
 Notice of facts requiring special care 98 
 
 Failure to obey instruction or the terms of the bailment 99 
 
 Termination of the relation and bailor's remedies 100 
 
 CHAPTER VII. 
 
 LIABILITY OF BAILOR AND BAILEE WHEN BAILMENT FOR THE 
 SOLE BENEFIT OF THE BAILEE. 
 
 Commodatum 101 
 
 For sole benefit of the bailee 102 
 
 The liability of the bailee 103 
 
 The contract must be for legal purpose 104 
 
 Need not be absolute owner to be bailor or lender 105 
 
 What right does the contract of loan or bailment confer? 106 
 
 Obligations of the borrower 107 
 
 Bailee's defenses 108 
 
 The injury or loss must have been without his fault . 109 
 
 Ordinary and extraordinary expenses to be paid 110 
 
 Redelivery of the thing bailed Ill 
 
 Borrower cannot retain for debt due him 112 
 
 Obligation of the lender 113 
 
 CHAPTEE VIII. 
 
 LIABILITY OF BAILOR AND BAILEE WHEN BAILMENT FOR 
 BENEFIT OF BOTH. 
 
 Of the nature and extent of mutual-benefit bailments 114 
 
 Locatio et conduotio bailments 115 
 
 Some definitions further explaining 116 
 
 A general view — Locatio et conduotio 117 
 
 • Locatio oonductio bailments 118 
 
 What the hiring bailments embrace 119 
 
 General subdivisions of the hiring bailments 120 
 
 CHAPTEE IX. 
 
 LOCATIO REL 
 
 The hiring of the thing for use 121 
 
 A contract relation 123 
 
 Bailor's title — Warranty of bailor 123 
 
 Bailee's possession — Property interest in the thing ... 124 
 
 Duty of bailor to give notice of defects rendering thing unfit for use 
 
 or dangerous 125 
 
 Bailee — Good faith of — Misuse of thing 126 
 
 Conversion — What constitutes 127 
 
 Exercising unauthorized dominion and control over property — 
 
 Conversion 138 
 
TABLE OF CONTENTS. Xi 
 References are to sections. 
 
 Bailor's right against third party, against bailee 129 
 
 Bailee's liability to third parties for negligent use — Bailee's negli- 
 gence not imputable to bailor 130 
 
 Bailee's right under certain circumstances to assign his interests 131 
 
 Extraordinary and incidental expenses 132 
 
 Termination of the bailment 133 
 
 CHAPTEE X. 
 
 I.OCATIO OPEEIS BAILMENTS. 
 
 The hiring of labor and service upon the thing . , 184 
 
 Locatio operis faciendi — The hiring of work and labor upon the thing 185 
 
 Contract relation 186 
 
 The obligations of the employer, the bailor 137 
 
 Bailee has a special property in the thing 138 
 
 Whether a sale or bailment 139 
 
 When product from material furnished and labor to be sold and prof- 
 its divided 140 
 
 If the thing is destroyed during the carrying out of the agreement or 
 
 after finished , 141 
 
 The duty of the bailee 142 
 
 If the vrork is to be performed by the job, and loss or injury occur be- 
 fore completion 143 
 
 The work must be done as contracted 144 
 
 Same subject 145 
 
 Summary of the discussion thus far 146 
 
 Not every failure to perform contract obligations will deprive bailee 
 
 of entire compensation T 147 
 
 If the failure to perform is the fault of the bailor 148 
 
 Inevitable accident or irresistible force 149 
 
 Reclaiming the property 150 
 
 Generally the bailee may do the work by an agent or servant 151 
 
 Where skill as well as care is required 152 
 
 He must exercise the skill adequate to the proper performance of the 
 
 work 153 
 
 If the bailee for hire purports to have skill he must use it 154 
 
 Ordinary skill required '. 155 
 
 The degree of skill and diligence increases in certain oases 156 
 
 Skilled work by an agent or servant 157 
 
 Defenses of the bailee 158 
 
 Notice to the bailor that claims for defects must be made within a 
 
 certain time 159 
 
 Title to the material used by bailee passes to bailor by accession 160 
 
 The lien of the bailee in locatio operis faciendi bailments 161 
 
 Priority of the lien 162 
 
 Agisters and livery-stable men — No lien at common lavp- 163 
 
 Lien by statute ... 164 
 
 Chattel mortgage takes precedence over lieu 165 
 
 Other questions previously discussed 168 
 
Xli TABLE OF CONTENTS. 
 
 References are to sectiong. 
 
 CHAPTEE XL 
 
 LOCATIO CUSTODI^ 
 
 The letting of care and custody of the thing for hire 167 
 
 What this subdivision embraces 168 
 
 Depositum 169 
 
 The subject discussed ITO 
 
 Warehouseman 171 
 
 Public warehouses 173 
 
 Bonded warehouses 173 
 
 Delivery — To create liability 174 
 
 Sale or bailment 175 
 
 The warehouse receipt 176 
 
 Warehousemen may insure the property .- 177 
 
 Usage and general course of business to a certain extent defines the 
 
 duty of warehouseman as bailee 178 
 
 At common law a warehouse receipt in a technical sense is not nego- 
 tiable 179 
 
 Warehouseman not permitted to impeach his receipt 180 
 
 Negotiability of receipt provided by statute 181 
 
 Common carriers, when warehousemen 182 
 
 As to goods awaiting delivery 183 
 
 The New Hampshire rule 184 
 
 The third class of cases 185 
 
 Wharfingers 186 
 
 When the liability begins 187 
 
 When the liability ends 188 
 
 Factors or commission merchants 189 
 
 Storage-house keepers 190 
 
 Some of the duties of the bailor 191 
 
 Dangerous articles 192 
 
 When the liability of the storage-house keeper begms 193 
 
 Wheu the liability ends 194 
 
 Storage-house keepers and warehousemen the same 195 
 
 Safe-deposit and trust companies 196 
 
 These deposits not gratuitous — Differ from a mere depositum 197 
 
 The nature of the bailment and the diligence required 198 
 
 Other classes of custodians 199 
 
 Liability of bailee in austodia bailments 200 
 
 When does the liability commence and end 201 
 
 Proper place and kind of storage 202 
 
 Diligence must keep pace with improvements 203 
 
 Proof of negligence 204 
 
 Does the burden of proof of negligence shift £05 
 
 The question summed up and the rule settled 206 
 
 Contributory negligence 207 
 
 Negligence of servants gog 
 
 Unauthorized use of chattels 209 
 
TABLE OF CONTENTS. Xiii 
 
 References are to sections. 
 
 Delivery, misdelivery, non-delivery 210 
 
 Confusion of goods 21t 
 
 Criminal liability , 313 
 
 Termination 313 
 
 Conversion 814 
 
 Compensation — Lien , 315 
 
 PART SECOND 
 PLEDGE OR PAWN 
 
 CHAPTER I. 
 
 THE RELATION. 
 
 Pignus 216 
 
 The scope of the business 217 
 
 Definition 318 
 
 Some essentials ' 319 
 
 •Competent parties 220 
 
 There must be assent of the parties 331 
 
 ■Corporations, partnerships, agencies 333 
 
 Property the subject of the pledge , 33a 
 
 ■Corporeal or incorporeal 324 
 
 Propertj' not in existence or acquired 825 
 
 Exceptions 226 
 
 Exempt property may be pledged 237 
 
 Pensions and pay to officers and soldiers 328 
 
 The debt or engagement 229 
 
 Pledge as collateral security 230 
 
 Contract should specify debt secured 231 
 
 Pledge may be to secure past, present or future indebtedness 233 
 
 The pledgor may pledge his property to secure the debt of an- 
 other 233 
 
 As to holding property for former or another debt 234 
 
 Continuing security — Future transactions 235 
 
 When several debts — Applications of payment 236 
 
 A pledge which secures a debt bearing interest secures the in- 
 terest as well as the debt 237 
 
 Delivery of the property by the pledgor — Acceptance and continued 
 
 possession of the property by the pledgee 237a 
 
 If property not delivered — Pledge, when good 838 
 
 The delivery 239 
 
 ■Constructive or symbolical delivery , 240 
 
XIV TABLE OF CONTENTS. 
 
 References are to sections. 
 
 CHAPTER II. 
 
 PLEDGING NEGOTIABLE PAPER. 
 
 Negotiable paper 241 
 
 An equitable assignment 242 
 
 Pledgee holder for value 243 
 
 Whether a pre-existing debt a sufficient consideration to constitute a 
 
 pledgee a holder for value 244 
 
 CHAPTER III. 
 
 NON-NEGOTIABLE AND QUASI-NEGOTIABLE INSTRUMENTS. 
 
 The nature and effect of such instruments 245 
 
 The pledging of corporate stock 246 
 
 What deemed sufficient delivery by pledgor to pledgee 247 
 
 Transfer in blank 248 
 
 Legal and equitable title 249 
 
 How affected by charter and by-laws of the company 250 
 
 The pledgee protected as against creditors 251 
 
 The pledgee of stock by indorsement may transfer the title 253 
 
 Bills of lading subject of pledge 253 
 
 Delivery by the pledgor 254 
 
 Mere delivery of the bill sufficient 255 
 
 Bill of lading to consignee with draft attached 256 
 
 A bill of lading, how far negotiable 257 
 
 Who are bona /de holders of bills of lading 208 
 
 Eights of bona fide holders 259 
 
 Bona fide holder from agent of owner, or one having apparent title. . 260 
 
 The warehouse receipt as collateral 261 
 
 Delivery of the receipt required — Indorsement in blank 262 
 
 Pledge created by mere delivery of receipt 363 
 
 Statutes of states, with reference to pledgee of warehouse receipt. . . . 264 
 
 If the receipt is made to bearer 365 
 
 Insurance policies as collateral 266 
 
 Delivery a requisite 367 
 
 How delivered 268 
 
 By indorsement in blank and delivery 269 
 
 Notes and mortgages, and bonds and mortgages 270 
 
 Mere delivery as a pledge 371 
 
 Full, complete assignment and transfer 272 
 
 Pledge distinguished from chattel mortgage , 273 
 
 CHAPTER IV. 
 
 PLEDGOR'S RIGHTS AND LIABILITIES. 
 
 The purpose of the chapter 274 
 
 Pledgor's rights 275 
 
 Pledgor of valuable securities — Notes, bonds, mortgages, etc 27(i 
 
TABLE OF CONTENTS. XV 
 
 References are to sections. 
 
 The pledgor may, under certain circumstances, protect the pledged 
 
 property from injury 377 
 
 Pledgor's interest subject to judicial process 278 
 
 When the debt secured is barred by statute of limitation 279 
 
 When will the statute of limitations run against the pledgor 280 
 
 The pledgor's right to redeem 281 
 
 As to notice of intention to redeem 282 
 
 The pledgor impliedly warrants the title of the pledged property 283 
 
 Rights, duties and liabilities of the pledgee 284 
 
 The possession 285 
 
 The pledge an incident of the debt secured and assignable 286 
 
 Assignment of secured debt passes equitable interest in pledged prop- 
 erty 287 
 
 Rights of assignee subject to the contract of pledge. 288 
 
 May repledge 289 
 
 Right to use the pledged property 290 
 
 " Expenses and profits 291 
 
 Liability for loss and damage 292 
 
 Payment of debt releases pledged property 293 
 
 A tender of the amount due will discharge the lien of the pledge . . . 394 
 
 CHAPTER V. 
 
 THE RIGHTS AND OBLIGATIONS OF THE PLEDGOR AND 
 PLEDGEE AFTER DEFAULT. 
 
 The subject and its discussion 395 
 
 Section I. 
 
 The pledgee's remedies 296 
 
 The pledge security not lost by suit and judgment on the debt 297 
 
 Discharge of lien by tender is not discharge of debt 298 
 
 The pledgee may attach pledged property or levy his execution upon 
 
 it, but waives the lien of the pledge 299 
 
 Defense of the pledgor to action of pledgee upon the debt secured. . . 300 
 
 Foreclosure of the pledge of corporeal property 301 
 
 By sale under the power contained in the contract of pledge 303 
 
 The sale, unless otherwise allowed by contract, must be public 303 
 
 The notice of sale 304 
 
 The pledgee cannot be purchaser at the sale 305 
 
 The utmost good faith demanded in the matter of the notice of sale . 306 
 
 Pledgor cannot compel pledgee to sell within a specified time 807 
 
 Surplus in the hands of the pledgee — Proceeds of the sale 308 
 
 Foreclosure by statutory proceedings ■. . 309 
 
 Foreclosure in equity 310 
 
 The notice and sale by virtue of decree 311 
 
 When the pledgor is insolvent or a bankrupt 312 
 
Xvi TABLE or CONTENTS, 
 
 References are to sectiong. 
 
 Section IL 
 Rights, remedies and liabilities of the pledgor and pledgee of negotia- 
 ble instruments and ohoses in action after default 313 
 
 The English rule ^1* 
 
 Recourse to the pledged security 315 
 
 The pledgee's diligence in collecting the securities 316 
 
 Pledgee may recover in an action on the negotiable securities 317 
 
 Compromise ^^^ 
 
 Section IlL 
 Rights and liabilities of pledgee of stocks and bonds of corporations 
 
 after default 319 
 
 Stocks held by brokers purchased on margins 320 
 
 Custom, usage and course of business 321 
 
 Foreclosure of the pledge where stocks are held on margins 323 
 
 Section IV. 
 
 The rights and liabilities of the pledgor after default 323 
 
 The pledgor may waive irregularity 324 
 
 Redemption in equity 325 
 
 Equity in some cases will take jurisdiction 326 
 
 Accounting for the pledged property 327 
 
 Termination of the relation 328 
 
 PART THIRD 
 
 INNKEEPERS AND BOARDING-HOUSE KEEPERS 
 
 CHAPTER I. 
 
 INNS AND INNKEEPERS. 
 
 An inn 829 
 
 Who are innkeepers 330 
 
 The test 331 
 
 Some essential characteristics 333 
 
 Restaurants and cafes 833 
 
 CHAPTER IL 
 
 GUESTS. 
 
 Who are guests 334 
 
 How far traveled, immaterial 335 
 
 A guest or a boarder 336 
 
 Length of time — Contracts for rates will not always determine 337 
 
TABLE OF CONTENTS. XVll 
 
 References are to sections. 
 
 Personal presence of the guest 338 
 
 The furnishing of what accommodations necessary 339 
 
 Mere visitors 340 
 
 The length of time one remains immaterial 341 
 
 The purpose for which one uses the inn 348 
 
 Who must the innkeeper receive as guests 343 
 
 Limitations 344 
 
 Liability for refusing to receive a guest 345 
 
 May refuse to receive 346 
 
 Wlien a guest is taken ill with contagious disease 347 
 
 Disorderly conduct 348 
 
 CHAPTER III. 
 LIABILITY. 
 
 (1) Of the Innkeeper. 
 
 Liable as an innkeeper^ 349 
 
 The extraordinary liability on grounds of public policy 350 
 
 Liability and exceptions analyzed 351 
 
 Where the loss is occasioned by accidental fire and not in any way 
 
 the result of fault or neglect of the innkeeper 353 
 
 By act of God or the public enemy 353 
 
 By irresistible force without negligence or fault on the part of the 
 
 innkeeper 354 
 
 Forcible robbery, riots, etc. — Diligence 355 
 
 If the loss is occasioned by force from within 356 
 
 By reason of the inherent nature of the property 357 
 
 Through the fault of the guest, his servants or companions 358 
 
 (3) Or THE Guest. 
 
 Reasonable regulations of the inn 359 
 
 For what property liable 360 
 
 Must be a guest of the inn and the property within the inn 361 
 
 Infra hospitium 362 
 
 Lost by theft : 363 
 
 If a boarder, not a guest - 364 
 
 Property of a third person 365 
 
 Liable to corporation for loss of agent's goods. 366 
 
 Exception — Goods for sale or show 367 
 
 Liability for personal injuries to guests 368 
 
 Defective or unsound condition of the premises 369 
 
 Injuries from fire 370 
 
 Unsanitary condition of the inn and unwholesome food 871 
 
 Limiting liability 373 
 
 Innkeeper liable as ordinary bailee 373 
 
 Liable as gratuitous bailee 374 
 
Xviii TABLE OF CONTENTS. 
 
 References are to sections. 
 
 CHAPTER IV. 
 
 COMPENSATION AND LIEN OF THE INNKEEPER. 
 
 Compensation — Lien 375 
 
 The lien a common-law lien 376 
 
 Amount of compensation 377 
 
 If the guest an infant 378 
 
 The property of third persons 379 
 
 Same subject 380 
 
 The guest a servant, agent or bailee of the owner 381 
 
 Where the property is animate 383 
 
 Where the guest has wrongfully possessed himself of the property. . . 383 
 
 The lien of the innkeeper fixed by statute 384 
 
 The lien lost or waived 385 
 
 Cannot be revived 386 
 
 Boarding-house keeper 387 
 
 PART FOUR 
 
 POSTOFFICE DEPARTMENT 
 
 CHAPTER I. 
 
 POSTAL SERVICE. 
 
 Liability of postofiSce department 388 
 
 Postmasters 389 
 
 Liability 390 
 
 Carriers of mail 391 
 
 PART FIVE 
 
 CARRIERS 
 
 CHAPTER I. 
 
 CARRIERS — GENERALLY. 
 
 Definition ggg 
 
 As to the history of carriers 393 
 
 The importance and scope of the subject 394 
 
 Carriers strictly a bailment relation 395 
 
 Carriers are of two kinds 39;; 
 
 Private or special carriers 39" 
 
TABLE OF CONTENTS. XIX 
 
 References are to sections. 
 
 Duties and liabilities of private and special carriers 398 
 
 The carriage of goods, or propex'ty, or passengers for reward 399 
 
 Inci-easing or diminishing liability by contraci 400 
 
 Can he diminish liability 401 
 
 ■ When excused from liability if no contract 403 
 
 Compensation and lien of the private carrier 403 
 
 Lien 404 
 
 Special or private carriers without hire — Gratuitous service 405 
 
 CHAPTER II. 
 
 PUBLIC OR COMMON CARRIERS. 
 
 Definition 406 
 
 First essential requisite — The important and distinguishing essentials 407 
 
 Second essential requisite — Determinate of the relation 408 
 
 The true test 409 
 
 May limit the employment to certain kinds of property 410 
 
 Third essential requisite — Carriage must be for hire 411 
 
 Carriers by water as well as by land 413 
 
 Who are common carriers 413 
 
 Tugs and tow-boats 414 
 
 Contrary holdings 415 
 
 Ferry-boats 416 
 
 Carriers by land 417 
 
 Hackmen and omnibus men 418 
 
 Truckmen, cartmen and owners of wagons 419 
 
 Street-car companies 430 
 
 Express companies. 431 
 
 Fast-freight lines, dispatch companies, etc 433 
 
 Transfer companies 433 
 
 Railroad companies 434 
 
 -Receivers and trustees 435 
 
 Not all railroad companies common carriers 436 
 
 Who are not common carriers 427 
 
 CHAPTER III. 
 
 ■CARRIERS OF GOODS — SOME ESSENTIALS THAT FIX THE LIA- 
 BILITY OF COMMON CARRIERS. 
 
 Object of the chapter — Some presumptions 428 
 
 Certain facts must be proven 439 
 
 Delivery of the property for transportation 430 
 
 The place of delivery 431 
 
 Usage and custom 433 
 
 Actual notice of deposit of goods 433 
 
 Time of delivery. 434 
 
 By whom must delivery be made and to whom 435 
 
 To whom must delivery be made 436 
 
XX TABLE OF CONTENTS. 
 
 References are to sections. 
 
 Facts relied upon to show apparent authority must be clear. 437 
 
 Agents authorized to receive ^°° 
 
 Constructive delivery ^^^ 
 
 Rules permitting constructive delivery must be applied with great 
 
 caution ***'' 
 
 CHAPTER IV. 
 
 CARRIERS OF GOODS -FIXING THE LIABILITY OF THE CARRIER. 
 
 The object of the chapter 441 
 
 What must the carrier receive and carry 448" 
 
 — — Reasonable regulations 443 
 
 Other legal excuses for refusing to receive goods. 444 
 
 Carrier may fix time and place for receiving 445- 
 
 That the carrier has no facilities for carrying the goods 446- 
 
 Extraordinary occasions — Press of business 447 
 
 Carrier not permitted to arbitrarily refuse to receive and ship 448 
 
 Equitable proceedings to enforce the receiving and shipping of freight 449 
 
 Acceptance by the carrier 450- 
 
 When delivery and acceptance completed 451 
 
 A bill of lading or receipt not a requisite to bind carrier 452 
 
 Action for refusal to accept and transport goods 453- 
 
 Tender of the goods and payment of freight 454 
 
 Who may sue. 455 
 
 The liability 456 
 
 Duty to provide proper vehicles 457 
 
 CHAPTEE 7 
 
 FIXING LIABILITY OF CARRIER— THE BILL OF LADING. 
 
 Description and office of the bill of lading 458' 
 
 Its negotiability 459 
 
 The consignor consigns goods to himself 460 ' 
 
 The bill of lading with draft attached 461 
 
 Bill of lading as proof 463' 
 
 Authorities not entirely harmonious 463v 
 
 Conclusiveness as to condition, weight, contents or value 464 
 
 By whom issued 465 
 
 CHAPTEE VI. 
 
 LIABILITY AND LIMITATIONS UPON THE LIABILITY OF THE' 
 COMMON CARRIER. 
 
 Liability of the common carrier 466 
 
 Reasons for extraordinary liability 467 
 
 Inanimate and animate freight 468-, 
 
tablj: of contents. xxi 
 
 References are to sections. 
 
 I. When the Loss or Injury is Caused by the Act of God. 
 
 The act of God 469 
 
 Does not always excuse the carrier from all care 470 
 
 The act of God must be the conclusive and proximate cause 471 
 
 What will and what will not excuse — Summary 473 
 
 Burden of proof 473 
 
 IL By the Public Enemy. 
 
 The public enemy 474 
 
 The diligence required on the part of the carrier 475 
 
 Diligence, even though the property is injured or destroyed after the 
 
 event has occurred 476 
 
 Strikers, rioters and robbers not the public enemy 477 
 
 in. Where the Loss or Injury is the Result op the Acts of the 
 
 Shipper. 
 
 Reasons of the liability of the carrier 478 
 
 Contributory negligence 479 
 
 Improperly marking goods, by the consignor 480 
 
 Goods improperly marked or loaded 481 
 
 Neglect of the shipper to disclose contents or value 483 
 
 Loss from mistake or intermeddling on the part of the shipper 483 
 
 Negligence of the carrier 484 
 
 IV. Where the Loss or Injury is Caused by the Inherent Nature 
 
 OP THE Goods. 
 
 The exception 485 
 
 Animate freight 486 
 
 V. Carrying op Live Stock. 
 
 The exception applies 487 
 
 Michigan rule 488 
 
 The duty of the common carrier 489 
 
 Statutes of United States with reference to duties of the carrier 490 
 
 The shipper must deal fairly witli the carrier 491 
 
 VI. When the Loss or Injury is Occasioned prom the Exercise op 
 
 Public Authority. 
 
 The reasons for the exception 493 
 
 CHAPTEK VII. 
 
 WHEN THE DAMAGE OR INJURY IS THE RESULT OF DEVIA- 
 TION OR DELAY. 
 
 Implied undertaking of the carrier 493 
 
 Notice to the carrier 494 
 
 What is unreasonable delay — How avoided 495 
 
 Reasonable diligence. ,. 496 
 
 Delay occasioned by deviation from route 497 
 
XXll TABLE OF CONTENTS. 
 
 References are to sections. 
 
 Loss or injury occurring on deviated route — Act of God or pub- 
 lic enemy, etc 498 
 
 Often duty of the carrier to delay or deviate from course 499 
 
 When delay and deviation on account of strikes or riots 500 
 
 May discriminate as to shipping perishable goods 501 
 
 Duty of carrier as to goods after disaster 503 
 
 CHAPTEE VIII. 
 CONTRACTS REGULATING THE TRANSPORTATION OF GOODS. 
 
 The object of the chapter 503 
 
 Contracts imposing obligations upon the carrier 504 
 
 If the contract is to carry by a certain route or in a certain manner. . 505 
 
 By a certain time 506 
 
 If the contract is to transport by water it cannot be fulfilled by 
 
 carrying by rail 507 
 
 When the change, deviation or delay from the stipulations in the con- 
 tract is the fault of the shipper 508 
 
 Contracts limiting the liability of the carrier 509 
 
 Cannot limit liability when the loss is the result of the negligence of 
 
 the carrier or his servants 510 
 
 Rule in different states as to limitation for negligence 511 
 
 Limiting liability as to amount 513 
 
 The consideration of contracts limiting liability 513 
 
 Option to the shipper to accept contract limiting liability.. , . . 514 
 
 Contract must be reasonable, fair and without fraud 51,"j 
 
 The contract, how made 516 
 
 Contract limiting the time in which to present claim or commence suit 517 
 
 Contract limiting liability need not be in writing 518 
 
 Construction of the contract limiting liability 519 
 
 Contracts implied from notice. 520 
 
 Further consideration 531 
 
 General notice written or printed upon the receipt or bill of 
 
 lading go-j 
 
 Representations of the shipper, fraudulent or otherwise 533 
 
 AVhen the contract limiting liability inures to the benefit of the con- 
 necting carrier 504 
 
 Limiting liability in England, especially by notice 525 
 
 The result of this act 535 
 
 CHAPTEK IX. 
 
 LIABILITY OF THE COMMON CARRIER (CONTINUED) — CONNECT- 
 ING CARRIERS. 
 
 Liable only over his own line except when contract is for further lia- 
 bility 527 
 
 If there is no contract as to liability beyond its own line 528 
 
 The English rule gog 
 
TABLE OF CONTENTS. XXIU 
 
 References are to sections. 
 
 Decisions of states not harmonious 530 
 
 Some conditions and relations from which contract for througli ship- 
 ment may be implied 531 
 
 Who are connecting carriers 532 
 
 The relations between the shipper, the initial carrier and the connect- 
 ing carrier 533 
 
 The duty of the connecting carrier 534 
 
 Authority to make contract binding connecting carriers 535 
 
 Actions for loss or damage 536 
 
 CHAPTER X. 
 
 COMPENSATION, AND HEREIN OF DISCRIMINATION AND LIEN 
 OF THE CARRIER 
 
 Compensation 537 
 
 Amount depends generally on goods delivered 538 
 
 Carrier's special security in and right to possession of goods 539 
 
 Carrier may protect his possession 540 
 
 The carrier may insure the goods 541 
 
 When can the carrier sell the goods 543 
 
 The amount charged 543 
 
 Right of carrier to collect its advances to connecting carriers 544 
 
 Who is liable to the carrier for the freight 54.') 
 
 Where the freight is only carried a part of the distance contracted 
 
 for — Pro rata itineris 546 
 
 Where goods shipped against the will of the owner, as by one not hav- 
 ing the right to ship 547 
 
 Law forbidding applies to all branches of carrier's business 548 
 
 Relates to facilities for shipment 549 
 
 The discrimination that is forbidden 550 
 
 Regulation by statute of states 551 
 
 The interstate commerce act 552 
 
 Similar to the lien of the bailee — Special, not general 553 
 
 When does the lien attach 554 
 
 When shipment made by one without authority 555 
 
 For what charges will the lien attach 556 
 
 The contract for shipment must be fulfilled — 557 
 
 The lien how lost, satisfied or discharged 558 
 
 Lien satisfied 559 
 
 Lien discharged 560 
 
 CHAPTEE XI. 
 
 TERMINATION OF THE CARRIER'S LIABILITY, AND HEREIN HIS 
 LIABILITY AS A WAREHOUSEMAN AND HOW DISCHARGED. 
 
 Delivery of the goods to the consignee 561 
 
 The bill of lading 568 
 
 Rules as to the delivery applicable to all carriers. 563 
 
xxiv TABLE OF CONTENTS. 
 
 References are to sections. 
 
 The requirements of the carrier upon arrival of the goods at destina- 
 tion 564 
 
 Requirements as to delivery. 565 
 
 When an express company becomes warehouseman 566 
 
 Express company's liability as warehouseman 067 
 
 Duty of express companies when goods refused by consignee 568 
 
 Goods sent C. 0. D. 569 
 
 Where consignee fails to receive the goods or refuses to receive them 570 
 
 Right to inspect the goods sent C. O. D 571 
 
 Carrier may assist in preventing fraud on the part of consignor 573 
 
 Termination of liability 573 
 
 Carrier must be reasonably diligent in giving notice to consignee. . . . 574 
 
 Must provide suitable place for landing and caring for goods 575 
 
 Notice must be actual, and for a removal of goods at a proper 
 
 time if time fixed 576 
 
 Contract — Usage — Course of dealing 577 
 
 Usage — Course of dealing 578 
 
 Consignee cannot prolong liability as carrier 579 
 
 Termination of liability 580 
 
 Three distinct views 581 
 
 The Massachusetts rule 583 
 
 The New Hampshire rule 583 
 
 The rule demanding notice to consignee 584 
 
 What will excuse delivery 585 
 
 Stoppage in transitu 586 
 
 The law favors the right 587 
 
 Some requisites to the right to exercise stoppage in transitu 588 
 
 How exercised — Notice by whom — To whom 589 
 
 How can the right be defeated 590 
 
 Lien of the carrier for freight has priority 591 
 
 Stoppage in transitu — Duty of carrier — Termination of liability, ... 592 
 
 PART SIX 
 CARRIERS OF PASSENGERS 
 
 CHAPTER I. 
 
 THE RELATION -WHO ARE PASSENGERS. 
 The relation ggg 
 
 Who Abe Passengers. 
 
 Definition kq^ 
 
 The status fixed more or less by intention 595 
 
 Not essential that the person should be in the vehicle of the carrier. . 596 
 
 Express messengers and mail agents . - 597 
 
TABLE OF CONTENTS. XXV 
 
 References are to sections. 
 
 Mail agents and passengers 598 
 
 Drovers 599 
 
 "Workmen and employees 600 
 
 Carrier must receive the person as a passenger 601 
 
 Persons violating reasonable regulations 602 
 
 Prepayment of fare 603 
 
 Fraud on carrier €04 
 
 Termination of the relation 605 
 
 Passengers on street-cars 606 
 
 Reasonable regulations .... 607 
 
 Must occupy usual place provided by the company 608 
 
 CHAPTEK II. 
 
 WHO MUST THE CARRIER ACCEPT AND CARRY, AND CERTAIN 
 DUTIES OF CARRIERS AND PASSENGERS. 
 
 ^asi-public servants 609 
 
 Exceptions to the general rule 610 
 
 Carrier must protect passengers 611 
 
 Right to separate passengers according to sex 613 
 
 Separation of races a reasonable regulation 613 
 
 Certain Duties Incumbent Upon the Carrier. 
 
 Imp'ied obligation 614 
 
 Vehicles, machinery, roadvyays, tracljs, etc 615 
 
 Stational facilities 616 
 
 Duty in managing and running its trains and vehicles 617 
 
 The duty of passengers 618 
 
 CHAPTER III. 
 
 THE PASSENGER CARRIER'S LIABILITY. 
 
 I. General Principles Governing Liability. 
 
 The purpose of the chapter ■ 619 
 
 The basis of the liability 620 
 
 Diligence in the employment of servants 621 
 
 Safe and suflBcient means of transportation 622 
 
 Passenger elevators 623 
 
 Bound to adopt most approved machinery 624 
 
 Latent defects 625 
 
 English rule 626 
 
 Defects discoverable by manufacturer 637 
 
 IL Liability Grovping Out of Duty to Passenger While in Transit. 
 
 The degree of care required 628 
 
 Depots — Waiting-rooms — Approaches and exits from premises and 
 
 vehicles 629 
 
 Same subject 630 
 
 Overloading and overcrowding vehicles 631 
 
Xxvi TABLE OF CONTENTS. 
 
 References are to sections. 
 
 Liability of carrier for abuse of passengers 632 
 
 Fares — Ticlsets — Contracts for carriage 633 
 
 Where the carrier or agent is at fault 634 
 
 Exhibition and surrender of ticl<ets 635 
 
 Lost or mislaid ticljets 636 
 
 Stop-over tictets — Time limit — Train limit, etc 637 
 
 Tickets over connecting lines 638 
 
 Delay by wreck or by the fault of the carrier 639 
 
 Tickets, passes and other transportation fraudulently obtained or fraud- 
 ulently used ■••• 640 
 
 Sleeping-car companies 641 
 
 Not liable as innkeepers 643 
 
 III. Ejection of Passengers and Intruders from the Vehicles of the 
 
 Carrier. 
 
 The right — The cause — The manner — By whom » 643 
 
 The causes numerous 644 
 
 Passenger's reliance upon statements and promises of servants 
 
 and agents of the carrier 645 
 
 Tendering fare to avoid ejection 646 
 
 The manner of ejecting 647 
 
 The condition of the passenger must be taken into account 648 
 
 IV. When the Carrier is Excused. 
 
 When caused by the act of God 649 
 
 The public enemy 650 
 
 Contributory negligence 651 
 
 Strangers, trespassers, intruders 653 
 
 Failure to warn passengers of danger 653 
 
 A question of fact for the jury or of law for the court 654 
 
 Whether a question of law or fact 655 
 
 Same subject 656 
 
 When excused 657 
 
 Failure to perform contract of carriage within stipulated or reason- 
 able time 658 
 
 CHAPTER IV. 
 LIMITATION OF LIABILITY. 
 
 Three classes of holdings by the court 659 
 
 The first class: Carrier cannot limit liability where damage results 
 
 from his own or servant's negligence. ... .... ... . . 660 
 
 The second class: Carrier can limit liability even though damage the 
 
 result of his own or servant's negligence. 661 
 
 The third class: May limit for negligence but not for gross negligence 663 
 
 The weight of authority . . BOu 
 
 Free passes — Limitation of liability for injuries to persons riding 
 
 "^Pon 664 
 
 Limitations growing out of that which is incident to the carriage . . . 665 
 
TABLE OF CONTENTS. XXVU 
 
 References are to sections. 
 
 CHAPTEE V. 
 
 BAGGAGE OR THE PASSENGER'S EFFECTS. 
 
 Kinds of baggage 666 
 
 Ordinary baggage — Definition 667 
 
 (1) The station in life of the passenger 668 
 
 (2) The business or occupation of the traveler 669 
 
 (3) Object of the journey 670 
 
 (4) The effects must be personal to the traveler 671. 
 
 (5) Must be reasonable in amount for the journey and its objects 672 
 
 What is not baggage 67B 
 
 Sample trunks or commercial efiEects 674 
 
 Payment of excess baggage 675 
 
 Reasonable regulation 676 
 
 Good faith 677 
 
 The owner of the baggage should be a passenger 678 
 
 Should the owner accompany the baggage? 679 
 
 Baggage of one riding upon a free pass. 680 
 
 Liability of the carrier for baggage under his exclvisive control 681 
 
 Hand baggage 683 
 
 Sleeping-car companies 683 
 
 Liabilit}' for theft of servants 684 
 
 A high degree of ordinary diligence required 685 
 
 Mixed custody of passenger and carrier — Is the liability of steamship 
 
 company and innkeeper the same? 686 
 
 The baggage of a steerage passenger 687 
 
 Temination of liability 688 
 
 Failure of carrier to deliver baggage 689 
 
 CHAPTER VI. 
 
 ACTIONS AGAINST COMMON CARRIERS. 
 L Actions Against Common Carriers op Goods. 
 
 The basis of the actions 690 
 
 As to what actions will lie 691 
 
 Even if there is a special contract 692 
 
 The advantages of the action ex delicto 693 
 
 For refusal to carry the goods 694 
 
 The parties 695 
 
 The consignee 696 
 
 One having a special property in the goods 697 
 
 The consignor 698 
 
 The defendant 699 
 
 THE PLEADINGS. 
 
 Pleadings follow general rules 700 
 
 Defenses 701 
 
XXVlll TABLE OF CONTENTS. 
 
 Eeferences are to sections. 
 THE PROOFS. 
 
 What proofs should be adduced 703 
 
 Negligence 703 
 
 Defendant's proofs 704 
 
 DAMAGES. 
 
 Of what they generally consist 705 
 
 Actual, exemplary, punitive or vindictive damages 706 
 
 Exemplary damages confined to liberal, compensatory or actual dam- 
 ages 707 
 
 Liability of principal or master for acts of agents or servants . . . 708 
 
 Damages for refusal to receive and transport 709 
 
 For loss or injury in transit 710 
 
 Shipper bound by the value placed upon his goods when shipped 711 
 
 Where the goods are not merchandise and not marketable 713 
 
 Goods shipped to be delivered on contract of sale 713 
 
 Failure to deliver at time specified or within reasonable time — 
 
 Reasonable delay 714 
 
 Failure to deliver and misdeliver 715 
 
 IL Actions Aoainst Careiers of Passengers. 
 
 Survival of actions for personal injuries 716 
 
 When the injury does not result in death 717 
 
 THE pleadings. 
 
 Based upon what 718 
 
 The answer or plea of the defendant 719 
 
 THE EVIDENCE. 
 
 What must be proven 720 
 
 Presumption of negligence 721 
 
 Contributory negligence 723 
 
 DAMAGES. 
 
 General rules applicable 723 
 
 Proximate or remote consequences 724 
 
 Actual, exemplary, punitive or vindictive damages 725 
 
TABLE OF CASES. 
 
 References are to sections. 
 
 Abbott V. Bradstreet, 686. 
 
 Abram v. Piatt, 437. 
 
 Acton V. Castle Mail-packet Co., 633. 
 
 Adams v. Clem, 373. 
 
 Adams v. Buokland, 515. 
 
 Adams v. Hannibal, etc. Co., 657. 
 
 Adams v. N. J. Steamboat Co., 338, 
 
 686. 
 Adams Exp. Co. v. Harris, 558. 
 Adams Exp. Co. v. Sohlessinger, 462. 
 ^tna Ins. Co. v. Jackson, 177. 
 Agawam Bank v. Strever, 235. 
 Aiken v. Chicago, etc. R Co., 452. 
 Ainsworth v. Bowen, 307. 
 Albian v. Presby, 363. 
 Aldrich v. Great Western R. Co., 525. 
 Alexander, etc. Co. v. Burke, 287, 301. 
 Allan V. King, 243. 
 Allan V. "Williams, 357. 
 Allan V. Railroad Co., 589, 590, 642. 
 Allis V. McLean, 494. 
 Alt V. Weldenberg, 66. 
 Alvord V. Davenport, 47, 375. 
 Ambler v. Ames. 297. 
 American Exp. Co. v. Phillips, 488. 
 American Exp. Co. v. Shier, 509. 
 American Exp. Co. v. Stack, 561. 
 American Exp. Co. v. Wolf. 368. 
 American Sugar Refining Co. v. Mc- 
 
 Ghee, 534. 
 American Transp. Co. v. Moore, 509, 
 
 518. 
 American Roofing Co. v. Memphis, 
 
 eta Co., 698. 
 American Steamship Co. v. Bryan, 
 
 686. 
 Anderson v. Louisville, etc. ^R. Co., 
 
 613. 
 Anderson v. Scholey, 721. 
 
 Anderson et al. v. Carothers et al., 
 
 276. 
 Andrews v. Richmond, 24 
 Androscoggin R. Co. v. Auburn 
 
 Bank, 291. 
 Angle & Co. v. Railroad Co., 530. 
 Annis v. Railroad Co., 663, 664 
 Apsey V. Railroad Co., 654. 
 Arbuofcle v. Thompson, 696. 
 Archer v. Ft. Wayne, etc. Co., 608. 
 Archer v. McDonald, 143. 
 Armour et al. v. Mich. Cent. R Co., 
 
 463. 
 Armstrong v. McLean, 293. 
 Armstrong v. Railroad Co., 544 
 Arnold v. Railway Co., 602. 
 Ashbey v. West, 62. 
 Ashmore v. Pennsylvania Steam 
 
 Towing Co., 414 509. 
 Ashton v. Detroit City R. Co., 657. 
 Atchison, etc. R. Co. v. Dill, 515. 
 Atchison, etc. R. Co. v. Gants, 642. 
 Atchison, etc. R. Co. v. Temple, 510. 
 Atkins v. Colby, 586. 
 Atkins v. Gamble, 61. 
 Atkinson v. Abraham. 369. 
 Attorney-General v. Chicago, etc. R. 
 
 Co., 550. 
 Atwater v. Railway Co., 609. 
 Atwater v. Sawyer, 343, 348, 368, 609. 
 Atwell V. Miller, 463. 
 Audenreid v. Railroad Co., 549. 
 Auerbach v. Railway Co., 638. 
 Aurentz v. Porter, 199. 
 Austin V. Curtis, 313. 
 Avinger v. Railroad Co., 426. 
 Babcook v. Wyman, 253. 
 Bacharach v. Chester Freight Line, 
 
 553. 
 
XXX 
 
 TABLE OF CASES. 
 
 References are to sections. 
 
 Bailey v. Colby, 80, 133, 213, 286. 
 
 Bailey v. Damon, 554. 
 
 Bailey v. Gould, 271. 
 
 Baird v. Daly, 132. 
 
 Baker v. Born, 24. 
 
 Baker v. Briggs. 307. 
 
 Baker v. Dessaner, 352. 
 
 Baker v. Drake, 323. 
 
 Balentine v. Railroad Co., 447. 
 
 Ball V. Liney, 61. 
 
 Ball V. Railway Co., 633. 
 
 Ball V. Stanley, 394. 
 
 Baldwin v. American Exp. Co., 561. 
 
 Baldwin v. Bradley, 334, 337. 
 
 Ballon V. Earle, 511. 
 
 Baltimore, etc. R. Co. v. Bambray, 
 
 634 
 Baltimore, etc. R. Co. v. Barger, 633. 
 Baltimore, etc. R. Co. v. Brown, 463. 
 Baltimore, etc. R. Co. v. Crawford, 
 
 513. 
 Baltimore, etc. R. Co. v. Express Co., 
 
 544. 
 Baltimore, etc. R. Co. v. Humphrey, 
 
 561. 
 Baltimore, etc. R. Co. v. State, 598, 
 
 633. 
 Baltimore, etc. R. Co. v. Voigt, 597. 
 Baltimore, etc. R. Co. v. Worthing- 
 
 ton, 731. 
 Bancroft v. Peters, 559. 
 Bank v. Brown, 673, 681. 
 Bank v. Gilmartin, 198. 
 Bank v. Jackson, 300. 
 Bank v. Marshall, 300. 
 Bank v. Roberts, 317. 
 Bank of Alexandria v. Herbert, 313. 
 Bank of America v. McNeil, 249. 
 Bank of Buifalo v. Kortright, 350. 
 Bank of Chadron v. Anderson, 342. 
 Bank of Kentucky v. Adams Exp. Co., 
 
 423. 
 Bank of Oswego v. Doyle, 210. 
 Bank of Rochester v. Colt, 179. 
 Bar V. Cain, 316. 
 Barker v. Havens, 553. 
 Barnard v. Campbell, 360. 
 Barnes v. Bradley, 297. 
 Barnes v. McCrea, 24. 
 Barney v. O. B. & H. S. S. Co., 610. 
 
 Barnowski v. Nelson, 731. 
 
 Barron v. East Boston Ferry Co., 633. 
 
 Barron v. Eldridge, 183, 183, 439, 567. 
 
 Barron v. Laudis, 53. 
 
 Bartlett v. Carnley, 554. 
 
 Bartlett v. Railway Co., 509. 
 
 Bartlett v. Walter, 177. 
 
 Bass V. Railroad Co., 613. 
 
 Bassett v. Railroad Co., 183. 
 
 Batavia Bank v. Railroad Co., 463. 
 
 Bates V. Railroad Co., 661. 
 
 Batton V. Railroad Co., 632. 
 
 Baugh V. Kirkpatrick, 278. 
 
 Baxter v. Hartford Ins. Co., 177. 
 
 Bay V. Coddington, 344 
 
 Bayles v. Railroad Co., 550. 
 
 Bealle v. Southern Bank, 343. 
 
 Beard v. Dedolph, 342. 
 
 Beard v. Railroad Co., 452, 457. 
 
 Beatty v. Silveston, 326. 
 
 Becker v. Hallgarten, 590. 
 
 Becker v. Haynes, 367. 
 
 Becker v. Warner, 358. 
 
 Beckwith v. Sibley, 396. 
 
 Bedle v. Morris, 366. 
 
 Beecher v. Wells Flouring-Mills Co., 
 
 350. 
 Beers et ux. v. Railway Co., 679. 
 Belden v. Perkins, 386, 289. 
 Belding v. Manley, 317. 
 Belfast V. Railroad Co., 673. 
 Belger v. Dinsmore, 513, 522. 
 Bellows V. Wells, 226. 
 Bells V. Chicago, etc. R Co., 488. 
 Bellsdyke Coal Co. i. Railroad Co., 
 
 Benedict v. Schaettle, 588. 
 Bennett v. American Transp. Co., 453. 
 Bennett v. Button, 530, 609. 
 Bennett v. Mellor, 340, 366. 
 Bennett v. Railroad Co., 500. 
 Bennett v. The Guiding Star. 430. 
 Berkshire Woolen Mills Co. v. Proc- 
 tor, 337, 349, 353, 360, 366. 
 Bernard v. Campbell, 860. 
 Bernard v. Knobbs, 63. 
 Bernstein v. Sweeney, 373. 
 Berry v. Railroad Co., 513. 
 Betts V. Railroad Co., 489. 
 Bevan v. Waters, 163. 
 
TABLE OF CASES. 
 
 XXXI 
 
 References are to sections. 
 
 Bevis V. Eailroad Co., 641. 
 
 Biddle, etc. Co. v. Railroad Co., 404. 
 
 Biebinger v. Continental Bank, 393. 
 
 Bigelow V. Heaton, 558. 
 
 Bigelow V. Walker, 300. 
 
 Bigelow V. West End Street Car Co., 
 
 606. 
 Biggs V. Lawrence, 229. 
 Billings V. Jane, 242. 
 Bingham v. Rogers, 520. 
 Bissell V. New York Cent. R. Co., 411, 
 
 487. 
 Bissell V. Pearce, 163, 165. 
 Bissell V. Price, 462, 544. 
 Bissell V. Railroad Co., 661, 664 
 Bixby V. Dunlap, 707. 
 Black V. Ashley, 184, 581. 
 Black V. Baxendale, 574 
 Black v. Brennan, 379. 
 Black V. Goodrich Transp. Co., 519. 
 Black V. Railroad Co., 470, 509. 
 Blackmere v. Railroad Co., 606. 
 Blackmore v. Railroad Co., 597. 
 Blackstock v. Railroad Co., 574 
 Blair v. Railroad Co., 597. 
 Blaisdell v. Railroad Co., 183. 
 Blake v. Kimball, 199. 
 Blamires v. Railroad Co., 029. 
 Blanchard v. Dedham Gas Co., 251. 
 Blanchard v. Isaacs, 431, 437. 
 Blanchard v. Page, 179, 545, 696, 698. 
 Blanchard v. Stevens, 244 
 Bland v. Adams Exp. Co., 474 
 Bland v. Railroad Co., 646. 
 Blinn v. Mayo, 186, 187, 204 
 Bloomer v. Henderson, 270. 
 Blum V. The Caddo, 697. 
 Blum V. Pullman Car Co, 641, 642. 
 Blythe et al. v. Railroad Co., 471, 473. 
 Boardman v. Holmes, 334, 237. 
 Boatman's Savings Bank v. West, etc. 
 
 R. Co., 563. 
 Bobo V. Patton, 198. 
 Bodwell V. Bragg, 373. 
 Bogert V. Haight, 304 
 Boggess V. Railroad Co., 658. 
 Boggs & Russell v. Martin, 558. 
 Bolt V. Stennett, 543. 
 Bonce v. Railroad Co., 418. 
 Bonney v. Railroad Co., 456. 
 
 Boorman v. Express Co., 509. 
 
 Boscowitz V. Adams Exp, Co., 457. 
 
 Boston, etc. R. Co. v. Shanley, 444. 
 
 Boston Music Hall Ass'n v. Cory, 251. 
 
 Bostwick V. Railroad Co., 515. 
 
 Bottenberg v. Nixon, 211. 
 
 Bowlin V. Lyon, 343. 
 
 Bowman v. Teall, 469. 
 
 Bowman v. Wood, 318. 
 
 Boyce v. Anderson, 543. 
 
 Boylan v. Railroad Co., 638. 
 
 Bradley v. Parks, 386. 
 
 Bradshaw v. Railroad Co., 637. 
 
 Braithwaite v. Powers, 546. 
 
 Brass v. Braitland, 444 
 
 Brass v. Worth, 303. 
 
 Braum v. Railroad Co., 644 
 
 Brennan v. Fairbaven, 653. 
 
 Brennan v. Railroad Co., 647. 
 
 Bretherton v. Wood, 691. 
 
 Bretz V. Diehle, 24 211. 
 
 Brewer v. Railroad Co., 597. 
 
 Brewster v. Hartley, 346. 
 
 Brick V. Brick, 353. 
 
 Bricker v. Railroad Co., 601, 603. 
 
 Bridgeman v. Steamboat Emily, 456. 
 
 Brien v. Bennett, 596. 
 
 Briggs V. Walker, 278. 
 
 Brind v. Dale, 439. 
 
 Brintnell v. Railroad Co., 530. 
 
 Broadwell v. Howard, 179. 
 
 Broadwood v. Granara, 165. 
 
 Brook V. Pickwick, 520. 
 
 Brooklyn Bank v. De Grauw, 294 
 
 Brooks V. Railroad Co., 463. 
 
 Brough's Estate, 312. 
 
 Brower v. The Water Witch, 452. 
 
 Brown v. Adams Exp. Co., 513, 714 
 
 Brown v. Boweu, 463. 
 
 Brown v. Clegg, 415. 
 
 Brown v. Cunard S. S. Co., 512. 
 
 Brown v. Express Co., 509, 520. 
 
 Brown v. Grand, 671. 
 
 Brown V. Hadley, 494. 
 
 Brown v. Railroad Co., 431, 517. 
 
 Brown Hotel Co. v. Burckhardt, 459. 
 
 Brownell v. Chapman, 494 
 
 Browning v. Goodohild, 390. 
 
 Bruce v. Smith, 349. 
 
 Bruley v. Rose, 74 
 
XXXll 
 
 TABLE OF CASES. 
 
 617, 660, 664. 
 
 ,489. 
 
 Brush V. Railroad Co., 664 
 
 Bryan v. Baldwin, 305. 
 
 Bryan v. Railroad Co., 
 
 Bryans v. Nix, 179. 
 
 Bryant v. Railroad Co. 
 
 Bryson v. Rayner, 326. 
 
 Buck V. Railroad Co., 629. 
 
 Buck et al. \. IngersoU, 299. 
 
 Buckingham v. Fisher, 204. 
 
 Buokland v. Adams Exp. Co., 421, 532. 
 
 Buckley v. Garrett, 284. 
 
 Buckley v. Great Western, 581. 
 
 Buckley v. Naumkeag Co., 462. 
 
 Buckley v. Railroad Co., 181 
 
 Buckman v. Levi, 439. 
 
 BufHngton v. Curtis, 255. 
 
 BuUard v. Billings, 286. 
 
 Bullock V. Adair, 839. 
 
 Burbank v. Chapin, 359. 
 
 Burdick v. Murray, 65. 
 
 Burgess v. Clements, 368. 
 
 Burlington v. Arms, 581. 
 
 Burnell v. Railroad Co., 206, 
 
 Burnham v. Young, 352. 
 
 Burnstein v. Sweeney, 339. 
 
 Burroughs v. Norwich, etc. E. Co., 
 
 530. 
 Bursley v. Hamilton, 20. 53. 
 Burton v. Curyea, 179, 259, 263. 
 Burton v. Wilkerson, 63. 
 Bush V. Lyon, 277. 
 Buskirk v. Purington, 555. 
 Buskirk v. Roberts, 658. 
 Bussey v. Mississippi Valley Transp. 
 
 Co., 415. 
 Butler V. Railroad Co., 437, 674. 
 Caldwell v. New Jersey S. S. Co., 624. 
 Calhoun v. Thompson, 63. 
 California Powder Works v. Railroad 
 
 Co., 514. 
 Calye's Case, 859. 368. 
 Camp V. Steamship Co., 509. 
 Campbell v. Perkins. 681. 
 Campbell v. White, 230. 
 Canadian Pacific R. Co. v. Johnston, 
 
 603. 
 Canal & Banking Co. v. Lewis, 317. 
 Canfield v. Minnesota, etc. Co., 303. 
 Cannon River Mfg. Co. v. First Nat. 
 Bank, 99. 
 
 References are to sections. 
 
 Cantwell v. Pacific Express Co., 498. 
 Capehart v. Granite Mfg. Co., 432, 
 Carey v. Railroad Co., 716. 
 Carnley v. Cohen, 177. 
 Carpenter v. Longan, 270. 
 Carpenter v. Railroad Co., 685. 
 Carpenter v. Taylor, 833. 
 Carpue v. Railroad Co., 731. 
 Carroll v. Mullanphy Savings Bank, 
 
 249. 
 Carroll v. Railroad Co., 660. 
 Carter v. Hobbs, 339, 367, 373. 
 Case V. Waterhouse, 161. 
 Casey v. Gaveroc, 238, 239, 313. 
 Casey v. Schneider, 341. 
 Cash v. Railroad Co., 487. 
 Cashill V. Wright, 359. 
 Cass V. Railroad Co., 43. 
 Caswell V. Railroad Co., 596. 
 Cathcart v. Snow, 176. 
 Cavallo V. Railroad Co., 586. 
 Caye v. Fabel. Assignee, etc., 558. 
 Cecil Savings Bank v. Watsontown 
 
 Bank, 349. 
 Central Ga. Ry. Co. v. Lippman, 468, 
 
 660. 
 Central Ry. Co. v. Bayer, 536. 
 Central Ry. Co. v. Hasselkus, 516. 
 
 Central R. & Banking Co. v. Georgia 
 F. & V. Exch. Co., 531. 
 
 Central Ry. Co. v. Crudup, 664. 
 
 Central Trust Co. v. Clark, 724 
 
 Chamber of Commerce v. Goodman, 
 220. 
 
 Chamberlain v. Cobb, 131. 
 
 Chamberlain v. West, 58. 866. 
 
 Chapin v. Railway Co.. 463, 464. 
 
 Chapman v. Allan, 163. 
 
 Chapman v. Brooks, 286. 
 
 Chapman v. First Nat. Bank, 165. 
 
 Chase v. Corcoran, 71. 
 
 Chase V. Washburn. 24, 163, 311. 
 
 Chase v. Westniore, 163. 
 
 Chattanooga Ry. Co. v. Huggins, 603. 
 
 Cheever v. Myer, S.'il. 
 
 Chesapeake Ry. Co. v. American 
 Exch. Bank, 489. 
 
 Chesapeake Ry. Co. v. Clowes, 631. 
 
 Chesapeake Ry. Co. v. King, 605. 
 
 Chesapeake Ry, Co. v. Wells, 613. 
 
TABLE OF CASES. 
 
 XXXIU 
 
 References are to sections. 
 
 Chicago, etc. Ey. Co. v. Bills, 642. 
 Chicago, etc. Ry. Co. v. Cassazza, 647. 
 Chicago, etc. Ry. Co. v. Chapman. 510. 
 Chicago, etc. Ry. Co. y. Frazer, 603. 
 Chicago, etc. Ry. Co. v. Harmon, .'jlS. 
 Chicago, 'etc. Ry. Co. v. Jenkins, 581. 
 Chicago, etc. Ry. Co. y. Miller, 711. 
 Chicago, etc. Ry. Co. v. Munford, 530, 
 
 655. 
 Chicago, etc Ry. Co. v. People, 550. 
 Chicago, etc. Ry. Co. v. Postin, 724. 
 Chicago, etc. Ry. Co. v. Shea, 482. 
 Chicago, etc. Ry. Co. v. Stewart. 596. 
 Chicago, etc. Ry. Co. v. Thrappe, 446. 
 Chicago, etc. Ry. Co. v. Union Packet 
 
 Co., 558. 
 Chicago, etc. Ry. Co. v. Wallace, 426. 
 Chicago, etc. Ry. Co. v. Williams, 613. 
 Chicago, etc. Ry. Co. v. Winters, 605. 
 Chicago et al. v. Sawyer. 469. 
 Chicago Fifth Nat. Bank v. Bayley, 
 
 256. 
 Chickering v. Fowler, 573. 
 Chidister v. Consolidated Ditch Co., 
 
 471. 
 Chilton V. Railway Co., 612. 
 Chouteaux v. Leech Co., 502. 
 Christenson v. American Exp. Co., 
 
 421. 
 Christie v. Griggs, 614, 625. 
 Christie v. Railwa5' Co., 550. 
 Christie v. Smith, 390. 
 Churchill v. Railway Co., 637. 
 Cicotte V. Gagnier, 270. 
 Cincinnati Ry. Co. v. Cooper, 204, 581. 
 Cmcinnati Ry. Co. v. McCool, 204, 581. 
 Cincinnati Ry. Co. v. Skillman, 646. 
 Citizens' Bank v. Peacock, 262. 
 Citizens' Bank v. Steamship Co., 406, 
 
 410, 411, 543. 
 Citizens' Ry. Co. v. HofiEbauer, 657. 
 Citizens' Ry. Co. v. Twiname, 420. 
 City Bank v. Railway Co., 255. 
 City Fire Ins. Co. v. Olmstead, 338. 
 Civil Rights Cases, 612, 613. 
 Claflin V. Myer, 173, 206. 
 Clandaniel v. Tuckerman, 538. 
 Clapp V. Nelson, 80. 
 Clark V. Burns, 333, 686. 
 Clark V. Geer, 664. 
 
 Clark V. Henry, 281. 
 
 Clark V. McDonnell, 593. 
 
 Clark V. Needles, 183, 494. 
 
 Clark V. Railway Co., 383, 487, 488. 
 
 Clark V. Whitaker, 47. 
 
 Cleghorn v. Railway Co., 708. 
 
 Cleveland, etc. Ry. Co. v. Best, 602. 
 
 Cleveland, etc. Ry. Co. v. Closser, 550. 
 
 Cleveland, etc. Ry. Co. v. Curran, 599, 
 
 660. 
 Cleveland, etc. Ry. Co. v. Ketcham, 
 
 598. 
 Cleveland, etc. Ry. Co. v. Newell, 
 
 517, 721. 
 Cleveland, etc. Ry. Co. v. Newlin, 
 
 517. 
 Clugas V. Penaluna, 239. 
 Clute V. Wiggins, 360, 362, 363. 
 Cobb V. Railway Co., 456, 495, 709, 
 
 713. 
 Cobb V. Wallace, 80, 3ia 
 Cobban v. Downe, 188. 
 Coddington v. Bay, 244. 
 Coffie V. Railway Co., 676. 
 Coger V. Packet Co., 612. 
 Coggs V. Bernard, 1, 86, 126, 218, 294, 
 
 467, 477, 559, 691. 
 Cohen v. Frost, 687. 
 Cohen v. Manuel, 360. 
 Cohen v. Moshkowitz, 143. 
 Cole v. Goodwin, 520, 535, 681. 
 CoUett V. London, etc. Co., 597. 
 Collins V. Bennett, 47. 
 Collins V. Bristol, etc. R. Co., 530. 
 Collins V. Burns, 310. 
 Collins V. Railway Co., 678, 679. 
 Colt V. Ives, 351. 
 Colville V. Loud, 309. 
 Colyar v. Taylor. 99, 405. 
 Commercial Bank v. Pfeiffer, 256. 
 Commonwealth v. Hide & Leather 
 
 Co., 541. 
 Commonwealth v. Power, 613. 
 Commonwealth v. Vermont, etc. Ry. 
 
 Co., 597. 
 Comstock v. Hier, 244. 
 Condon v. Railway Co., 534. 
 Condran v. Railway Co., 604, 640. 
 Congar v. Railway Co., 480, 483, 632, 
 
 696. 
 
XXXIV 
 
 TABLE OF CASES. 
 
 Eeferences are to sections. 
 
 Connolly v. Street Car Co., 648. 
 
 Connor v. Chase, 252. 
 
 Connor v. Citizens' Ry. Co., 655. 
 
 Converse v. Transp. Co., 450. 
 
 Conway v. Mitchell, 734. 
 
 Cook V. Gourdin, 610. 
 
 Cook V. Kansas City Ry. Co., 489. 
 
 Cooke T. Kane, 379. 
 
 Cooley V. Board of Wardens, 613. 
 
 Coombs V. Warren, 243. 
 
 Cooper V. Raleigh, etc. Ry. Co., 487. 
 
 Cooper v. Railway Co., 636. 
 
 Cooper V. Simpson, 307. 
 
 Corn Exchange Bank v. American 
 
 Dock & Trust Co., 179. 
 Cornell v. Hichens, 370. 
 Coskery v. Nagle, 362. 
 Costello V. Laths, 464. 
 Coup V. Railway Co., 437. 
 Coupland v. Railway Co., 489. 
 Covington Stockyards Co. v. Keith, 
 
 489. 
 Cowles v. Pointer, 204. 
 Cox V. O'Reilly, 186. 
 Cox V. Railway Co., 510, 517. 
 Coykendall v. Eaton, 338, 366. 
 Cragin et al. v. Railway Co., 453, 487. 
 Crane v. Gough, 341. 
 Crawford v. Railway Co., 636. 
 Crawford v. Southern R. etc. Co., 530. 
 Cream Cit}' Ry. Co. v. Railway Co.. 
 
 519. 
 Creamer v. West End Street-Car Co., 
 
 608. 
 Croft V. Bunster, 370. 
 Cromwell v. Stevens, 339, 333. 
 Cronkite v. Wells, 445, 450. 
 Crosby v. Fitch, 469, 498. 
 Cross V. Andrews, 349. 
 Cross V. Brown, 199. 
 Cross V. Eureka, etc. Co., 280. 
 Cross V. Railroad Co., 639. 
 Cross V. Wilkins, 163, 387. 
 Crossan v. Railway Co., oo6. 
 Crouch V. Railway Co., 444. 
 Crouse v. Railway Co., 734. 
 Crump V. Mitchell, 80. 
 Ciystal Palace v. Vanderpool, 686. 
 Cully V. Railway Co., 6l;>. 
 Cummings v. Harris, 163. 
 
 Cummings v. Gann, 199. 
 
 Cunningham v. Buokey, 356, 858. 
 
 Currey v. Roulstone, o90. 
 
 Curtis V. Leavitt. 286. 
 
 Curtis V. :\Iurphy, 336, 343. 
 
 Curtis V. Railway Co., 679. 
 
 Cushman v. Thayer Mfg. Co., 249. 
 
 Cutler v. Bonney, 349, 352, 356. 
 
 Cutler V. Smith, 706. 
 
 Cutting V. Railway Co., 710, 714 
 
 Dale V. Hall, 691. 
 
 Dale V. See, 61, 159. 
 
 Dal man v. Kenning, 606. 
 
 Dane et al. v. Old Colony R. Co., 558. 
 
 Danforth v. Grant, 390. 
 
 Danforth v. Semple, 233. 
 
 Dangerfield v. Atchison, 633. 
 
 Dansey v. Richardsen, 364. 
 
 Da Ponte v. New Orleans Transfer 
 
 Co., 423. 
 Darling v. Railway Co., 530. 
 Dasch V. Railway Co., 656. 
 Davidson v. Graham, 530. 
 Davis V. Bradley, 179. 
 Davis V. Chicago, etc. Ry. Co., 660. 
 Davis V. Garrett, 476, 499. 
 Davis V. Lane, 343. 
 Davis V. New York, etc. Ry. Co., 716. 
 Davis V. People. 333. 
 Davis V. Railway Co., 077. 
 Davis V. Wabash Ky. Co., 471. 
 Dawley v. Palace Car Co., 683, 683. 
 Daws V. Peck. 695. 698. 
 Dawson v. Channy, 349. 
 Dawson v. Sloan, 369. 
 Day V. Coddington, 344. 
 Day V. Owen, 612, 613. 
 Day V. Woodworth, 706. 
 Dayton Nat. Bank v. Merchants' Nat 
 
 Bank, 393. 
 Dean v. Driggs. 179. 
 Dean v. King, 464. 
 Dearborn v. Taylor, 271. 
 De Cordova v. Barnum, 297. 
 Delano v. Bennett. 271. 
 Del Yalle v. Richmond, 686. 
 Deming v. Merchants', etc. Co., 439, 
 
 513, 515. 
 De Mott & Ingersoll v. Lara way, 201. 
 Denny v. Railway Co., 437. 
 
TABLE OF CASES. 
 
 XXXV 
 
 Eeferences are to sections. 
 
 Denston v. Jackson, 333. 
 Denver v. Sherrett, 734. 
 Denver, etc. Ry. Co. v. Frame, 697, 
 
 713. 
 Despard v. Walbridge, 253. 
 Detrich v. Railway Co., 637. 
 Detroit, etc. Ry. Co. v. McKensie, 
 
 530, 556. 
 Detroit, etc. Ry. Co. v. Van Stein- 
 berg, 655. 
 Devereux v. Buckley, 714. 
 Devoin v. Lumber Co., 47. 
 Dewart v. Masser, 282. 
 Dibble v. Morgan, 471, 575. 
 Dickenson v. Winchester, 863, 366. 
 Dickerman v. Union Depot Co.. 635. 
 Dickey v. Pocomoke City Nat. Bank, 
 
 341. 
 Dillard v. Railway Co., 513. 
 Dimick v. Railway Co., 304. 
 Dimmey v. Railway Co., 657. 
 Dixon V. Railway Co., 430, 431. 
 Dixon V. Richmond, etc. Ry. Co., 
 
 457, 536. 
 Dixon V. The Surrey, 577. 
 Doak V. Bank, 335. 
 Dodge V. Steamship Co., 665. 
 Dodgson V. Henderson, 233. 
 Dole V. Olmstead, 178. 
 Domestic, etc. Co. v. Watters, 379, 
 
 388. 
 Donald v. Suckling, 388. 
 Donnell v. The Starlight, 163. 
 Donohoe v. Gamble, 313. 
 Dorr v. New Jersey Steam Nav. Co., 
 
 530. 
 Douglas V. Reynolds, 235. 
 Douglas v. People's Bank, 562. 
 Dow V. Greene, 259. 
 Dowe V. Winnipesaukee Gas Co., 724. 
 Down V. Fromont, 535. 
 Downey v. Railway Co., 708. 
 Downing v. Outerbridge, 707. 
 Dows v. Nat. Exchange Bank, 253, 
 
 563. 
 Dows V. Perrin, 364. 
 Doyle V. Railway Co., 600, 601, 664. 
 Drake v. White, 59, 274. 
 Drew V. Railway Co., 637. 
 Ducker v. Barnett, 175. 
 
 Duff V. Budd, 563. 
 
 Duff V. Railway Co., 597, 606. 
 
 Dunbar v. Day, 352. 
 
 Dunbar v. Gregg, 189. 
 
 Duncan v. Benson, 542. 
 
 Duncomb v. Railway Co., 16, 243, 386, 
 
 817. 
 Dundas v. Lansing, 654. 
 Dunham v. Lee, 64, 80. 
 Dunlap V. Gleason, 218. 
 Dunlap V. Limes, 344. 
 Dunlop V. Hunting, 80. 
 Dunlop V. Monroe, 389. 
 Dunn V. Railway Co., 665. 
 Dupay V. Gibson, 310. 
 Dupre V. Fall, 277. 
 Durant v. Einstein, 310, 336. 
 Durfee v. Newkirk, 706. 
 Durgin v. American Exp. Co., 516. 
 Duvenick v. Railway Co., 513. 
 Dwight T. Brewster, 406, 431. 
 Dwinelle v. Railway Co., 633. 
 Dyer v. Grand Trunk, etc. Ry. Co., 
 
 558. 
 Dykers v. Allan, 303. 
 Eagan v. A Cargo of Spruce Lath, 
 
 558. 
 Eastern Ry. Co. v. Relief Fire Ins. 
 
 Co., 177. 541. 
 East Tennessee, etc. Ry. Co. v. Kelly, 
 
 481. 
 East Tennessee, etc. Ry. Co. v. Nel- 
 son, 534. 
 Eastman v. Maine Cent. Ry. Co., 683. 
 Easton v. German American Bank, 
 
 307. 
 Eaton V. Railway Co., 602. 
 Eaton et al. v. Cook, 590. 
 Edgerton v. Railway Co., 731. 
 Edrington v. Harper, 353. 
 Edwards v. Lord, 625. 
 Edwards v. Railway Co., 633. 
 Efrom V. Pullman Car Co., 685. 
 Ela V. American, etc. Exp. Co., 561. 
 Elder v. Rouse, 296, 313. 
 Elkins v. Railway Co., 58, 699. 
 Elliot v. Russell & Lewis, 699. 
 Ellsworth V. Railway Co., 645. 
 Elmon V. Railway Co., 580. 
 Elmore v. Sands, 687. 
 
xxxvi 
 
 TABLE OF CASES. 
 
 Eefei'ences are. to sections. 
 
 Elmore v. Kaugatuok Ry. Co., 536. 
 
 Emerson v. Peteler, 588. 
 
 Emery Sons v. Irwin Nat. Bank, 255. 
 
 Enus V. Cole, 128. 
 
 Ependorff v. Street Car Co., 655. 
 
 Epps V. Hinds, 366. 
 
 Erie Co. v. Wilcox, 530. 
 
 Erie Dispatch Co. v. Johnson, 561. 
 
 Erie & Pac. Dispatch Co. v. Cecil, 
 550. 
 
 Estes V. Railway Co., 681. 
 
 Estey & Green v. Graham, 287. 
 
 Evans v. Atlanta, etc. Hy. Co., 536. 
 
 Evans v. Chicago, etc. Ry. Co., 557, 
 638. 
 
 Evans v. Fitchburg, etc. Ry. Co., 487. 
 
 Evansville, etc. Co. v. Keith, 432. 
 
 Evansville Ry. Co. v. Irwin, 2.j9. 
 
 Evansville Ry. Co. v. Marsh, 556. 
 
 Evansville Ry. Co. v. Young. 509. 
 
 Everett v. Ra,ilway Co., 634. 
 
 Everett v. Saltus, 696. 
 
 Exchange Bank v. Butner, 243. 
 
 Exeter Bank v. Gordon, 318. 
 
 Express Co. v. Black, 436. 
 
 Express Co. v. Caldwell. 517. 
 
 Express Co. v. Darnell, 570. 
 
 Expi-ess Co. V. Gordon, 318. 
 
 Express Co. v. Haynes, 515. 
 
 Express Co. v. Jackson, 469, 
 
 Express Co. v. Jloon, 515. 
 
 Express Co. v. McVeigh, 691. 
 
 Express Co. v. Spellman, 51.5. 
 
 Express Co. ». Stettaners, 515. 
 
 Fagan v. Thompson. 45, 291. 
 
 Fairbanks, etc. Co. v. Railway Co., 
 519. 
 
 Fairfax v. Railway Co., 206. 
 
 Fairfield v. HoUey, 231. 
 
 Faison v. Railway Co., 536. 
 
 Falls V. Railway Co., 629. 
 
 Farish & Co. v. Reigle, 621, 731. 
 
 Farkas v. Powell, 127. 
 
 Farley v. Lavery, 410. 
 
 Farmers' & Mechanics' Bank v. 
 Champlain Transp. Co., 483, 520, 
 530. 
 
 Farmers', etc. Nat. Bank v. Hazel- 
 tine, 2."i9. 
 
 Farmers' Nat. Bank v. Logan, 359. 
 
 Farmers' Loan & Trust Co. v. Rail- 
 way Co., 305. 
 
 Farmington Co. v. Railway Co., 536. 
 
 Faruham v. Railway Co., 520. 
 
 Farnsworth v. Paokwood, 367. 
 
 Farrell v. Richmond Ry. Co., 174, 588,. 
 590, 591. 
 
 Farwell v. National Bank, 313, 317. 
 
 Faulkner v. B]-owu, 58, 366. 
 
 Faulkner v. Hill, 286. 
 
 Faxen v. Mansfield, 147. 
 
 Fay v. Pacific Implement Co., 337. 
 
 Fay V. Parker, 707. 
 
 Fay V. Steamer New World, 405, 512. 
 
 Feige v. Railway Co., 184, 581. 
 
 Feise et al. v. Wray, 588. 
 
 Feital v. Railway Co., 721. 
 
 Fenkhousen v. Fellows, .588. 
 
 Fenner v. Railway Co., 574. 
 
 Fettyplace v. Dutch, 254, 277. 
 
 Fidelity Ins. etc. Co. v. Roanoke Irori 
 Co., 305. 
 
 Fifield V. Insurance Co., 474. 
 
 Fifth Nat. Bank v. Providence Ware- 
 house Co., 178. 
 
 Files V. Railway Co., 603, 655. 
 
 Fillebrown v. Railway Co., 520. 
 
 Find lay v. Hosmer, 312. 
 
 Finn v. Railway Co., 366, 698. 
 
 First Nat. Bank v. Broadway Nat.. 
 Bank, 344. 
 
 First Nat. Bank v. Dearborn, 253. 
 
 First Nat. Bank v. Graham, 198. 
 
 First Nat. Bank v. Nelson, 238. 
 
 First Nat. Bank v. Ocean Nat. Bank,. 
 198. 
 
 First Nat. Bank v. Rex, 198. 
 
 First Nat. Bank v. Rush, 805. 
 
 First Nat. Bank v. Zent, 198. 
 
 First Nat. Bank of Chicago v. Dean,. 
 179. 
 
 First Nat. Bank of Omaha v. Good- 
 man, 233. 
 
 Fish V. Chapman, 410, 525. 
 
 Fisher v. Essex Bank, 251. 
 
 Fisher v. Fisher, 244, 317. 
 
 Fisher v. Geddes, 487. 
 
 Fisher v. Kelsey, 387. 353, 367, 373. 
 
 Fisk V. Newton. 574, 575. 
 
 Fitch V. easier, 339. 
 
TABLE OF OASES. 
 
 XXXVll 
 
 References are to sections. 
 
 Fitch & Gilbert V. Newberry & Good- 
 ell, 383, 555. 
 
 Fitohburg Ry. Co. v. Gage, 550. 
 
 Fitohburg Ry. Co. v. Hanna, 183. 
 
 Fitzgerald v. Railway Co., 549. 
 
 Flaherty v. American Exp. Co., 689. 
 
 Fletcher v. American Exp. Co., 568. 
 
 Fletcher v. Dickinson, 313. 
 
 Flinn v. Railway Co., 833. 
 
 Flynn v. Railway Co., 536. 
 
 Ford V. Cheever, 707. 
 
 Foreman v. Beckwith, 343. 
 
 Forester v. Railway Co., 536. 
 
 Forsythe v. Walker, 480. 
 
 Fort Worth, etc. Ry. Co. v. Martin, 
 433. 
 
 Fort Worth, etc. Ry. Co. v. Riley, 430. 
 
 Forward v. Pittard, 473. 
 
 Foster v. Berg, 808. 
 
 Foster v. Essex Bank, 15. 
 
 Foster v. Metts, 391. 
 
 Foster v. Pettibone, 63, 140. 
 
 Fowler v. Steamship Co., 508. 
 
 Fox V. Harding, 714. 
 
 France v. Clark, 314. 
 
 Francis v. Shrader, 131. 
 
 Frank v. Ingalls, 640. 
 
 Frank v. Keith, 474. 
 
 Frankfort Bank v. Johnston, 308. 
 
 Frazier v. Railway Co.. 430. 
 
 Freedon v. Railway Co., 612. 
 
 Freeman v. Perry, 242. 
 
 Freiburg v. Dreyfus, 363. 
 
 Fridley v. Bowen, 337. 
 
 Friedlander v. Railroad Co., 439, 463. 
 
 Frink & Co. t. Coe, 631. 
 
 Frost V. Shaw, 227. 
 
 Fuller V. Bradley, 558. 
 
 Fuller V. Coats, 356, 358, 359, 362. 
 
 Furman v. Railway Co., 562. 
 
 Furness v. Union Nat. Bank, 45. 
 
 Gage V. Riverside Trust Co., 279. 
 
 Gaines v. Union Ti-ansp. Co.. 509, 515. 
 
 Galena, etc. Co. v. Rae, 432, 454. 
 
 Galena, etc. R. Co. v. Fay, 657. 
 
 Galigher t. Jones, 324. 
 
 Gallin v. Railway Co., 661. 
 
 Gait V. Archer, 559, 713. 
 
 Galway v. Fullerton, 241. 
 
 Gardner v. Hoeg, 226. 
 
 Gardner v. People, 212. 
 Gardner v. Railway Co., 655. 
 Gargan v. West End Street Car Co., 
 
 605. 
 Garlick v. James, 304, 318. 
 Garton v. Railway Co., 550. 
 Garton v. Union City Bank, 231. 
 Gashweiler v. Railway Co., 581. 
 Gastenhofer v. Clair, 340. 
 Gates V. Ryan, 545. 
 Gee V. Railway Co., 714. 
 Geilfus V. Corrigan, 176, 338. 
 Geismer v. Railway Co., 496, 500. 
 Genet v. Rowland, 335. 
 George v. Matorn, 338. 
 George v. Pierce. 838. 
 Georgia, etc. Co. v. Asmore, 646. 
 German Union Asso. Bldg. v. Send 
 
 meyer, 847. 
 Germania Savings Bank v. Peuser, 
 
 497. 
 Gibbons v. Paynton, 525. 
 Gibbons v. Robinson, 462. 
 Gibson V. Culver. 574. 
 Gibson v. Warden. 312. 
 Giffen v. City, 734. 
 Gilbert v. Aldrich, 349. 
 Gilbert v. Dale, 536. 
 Gilbert v. Hoffman, 344. 
 Gilbert v. Manufacturing Co., 830. 
 Gile v. Libbey, 349, 356. 
 Giles V. Fountelroy, 373. 
 Gillett V. Whiting, 322. 
 Gilson V. Madden, 545. 
 Girard v. Fire & M. Ins. Co., 316. 
 Gisbourn v. Hurst, 406. 
 Glass V. Goldsmith, 463. 
 Gleason v. Railway Co., 598. 
 Gleason v. Transportation Co., 688. 
 Glidden v. Bank, 305. 
 GliJden v. Mechanics' Nat. Bank, 336. 
 Globe Works v. Wright, 163. 
 Golden v. Mechanics' Nat. Bank, 313. 
 Goldstein v. Hort, 283. 
 Goodbar v. Railway Co., 183, 
 Goodman v. Conkling, 344. 
 Goodrich v. Thompson, 163, 436, 505. 
 Goodrich v. Willard, 163. 
 Goodwin v. Massachusetts Loan & 
 
 Trust Co., 344 
 
XXX via 
 
 TABLE OF CASES. 
 
 References are to sections. 
 
 Goochvin v. Scanlon, 178. 
 
 Gordon v. Buchanan, 410. 
 
 Gordon v. Hutchinson, 406, 410. 
 
 Gordon y. Manchester, 658. 
 
 Gordon v. Railway Co., 596. 
 
 Gordon v. Silver, 375. 
 
 Goss V. Emerson, 843. 286. 
 
 Gott V. Dinsmore, 515, 520. 
 
 Gould V. Hill, 518. 
 
 Gould V. Railway Co., 646. 
 
 Grace v. Adams, 509, 516. 
 
 Gracie v. Palmer, 553. 
 
 Graffin v. Railway Co., 679. 
 
 Graham v. McNeill, 6.31. 
 
 Graham t. Railway Co., 655. 
 
 Graman v. Smith, 322. 
 
 Grand Island Sav. & Loan Ass'n v. 
 
 Moore, 297. 
 Grand Rapids, etc. Ry. Co. v. Hunt- 
 ley. 468, 637. 
 Grand Trunk Ry. Co. v. Ives, 654. 
 Grant v. Button, 147. 
 Grant v. Norway, 439, 463. 
 Grant v. Wood, 545. 
 Graven v. MacLeod, 605, 744. 
 Gray v. Jackson, 538, 530. 
 Gray v. Merriam, 94. 
 Great Western Ry. Co. v. Hawkins, 
 
 488, 489. 
 Great Western Ry. Co. v. Miller, 652. 
 Great Western Ry. Co. v. Sutton, 550. 
 Great Western Transp. Co. v. Bagge, 
 
 545. 
 Green v. Clark, 697. 
 Green v. Railway Co., 439, 450, 713. 
 Greenfield School District v. First 
 
 Nat. Bank, 244. 
 Greenwall v. Hayden, 317. 
 Gregg V. Railway Co.. 183, 581. 
 Gregory v. Stryker, 140, 160. 
 Gregory v. Railway Co.. 182. 
 Griffith V. Railway Co., 632. 
 Grindley v. Express Co., 494. 
 Grinnell v. Cook, 163, 165, 349, 366, 
 
 879. 
 Griswold v. Railway Co., 661, 664. 
 Grosvenor v. Railway Co., 431, 433, 
 
 436. 
 Grover & Baker Co. v. Railway Co., 
 
 530. 
 
 Grunian v. Smith. 323. 
 
 Grund v. Pendergast, 709. 
 
 Grymes v. Hone, 249. 
 
 Gulf, etc. Ry. Co. v. Campbell, 640. 
 
 Gulf, etc. Ry. Co. v. Looney, 639. 
 
 Gulf, etc. Ry. Co. v. McGown, 660. 
 
 Gulf, etc. Ry. Co. v. Trawick, 182, 
 
 489. 
 Gulf, etc. Ry. Co. v. Wilson, 598. 
 Gulf, etc. Ry. Co. v. Wright. 513. 
 Gulf, etc. Ry. Co. v. York, 489. 
 Gunderman v. Railway Co., 629. 
 Haas V. Railway Co., 259. 
 Hadley v. Baxendale, 494, 713. 
 Hadley v. Cross, 625. 
 Hager v. Union Nat. Bank, 391. 
 Hagerstown Bank v. Express Co., 
 
 540. 
 Haines v. Railway Co., 674. 
 Hale V. Milwaukee Dock Co., 178, 179. 
 Hale V. New Jersey Nav. Co., 472. 
 Hales V. Railway Co., 493. 
 Hall V. Cheney, 509. 
 Hall V. De Cuir, 613, 613. 
 Hall V. Diamond, 553, 590. 
 Hall V. Ocean Ins. Co., 542. 
 Hall V. Pike, 337. 
 Hall V. Railway Co., 661. 
 Hall V. Warner, 133. 
 Halstead v. State, 213. 
 Hamilton v. Lubukee, 371. 
 Hamilton v. McLaughlin, 73. 
 Hamilton v. McNulty, 885. 
 Hamilton v. State Bank, 834. 
 Hammond v. Danielson, 162. 
 Hampton v. Pullman Car Co., 641. 
 Hance v. Railway Co., 515. 
 Hancock v. Franklin Ins. Co., 280, 
 
 303. 
 Hancock v. Rand, 337. 
 Hand v. Baynes, 574. 
 Hanes v. Railway Co., 674* 
 Hanks v. Drake, 322. 
 Hanmer v. Holton, 313. 
 Hanna v. Holton, 307, 313. 
 Hannibal, etc. Ry. Co. v. Swift, 457. 
 Hardenberg v. Railway Co., 631. 
 Harris v. Bradley, 176. 
 Harris v. Packard, 543. 
 Harris v. Railway Co., 530. 
 
TABLE OF CASES. 
 
 XXXIX 
 
 Eeferences are to sections. 
 
 Harris v. Rand, 469, 538. 
 
 Harris et al. v. Pratt, 590. 
 
 Harrington v. Stratton, 300. 
 
 Hart V. Railway Co., 510, 711. 
 
 Hartley v. Tapley, 236. 
 
 Hartwell v. Northern Pao. Exp. Co., 
 
 471. 
 Harvey v. Railway Co., 494, 709. 
 Hasbrouck v. Vandervoort, 326. 
 Haskins v. Pattison, 373. 
 Hasse v. Express Co., 567, 570. 
 Hathaway v. Haynes, 340, 256. 
 Hatten v. Railway Co., 637. 
 Hauselt v. Harrison, 273. 
 Hawkins v. Great Western Ry. Co., 
 
 457, 519, 671. 
 Hawkins v. Hoffman, 681. 
 Hawley v. Cramer, 305. 
 Hawthorne v. Hammond, 343. 
 Hay V. Pacific Implement Co., 353. 
 Hayes v. Campbell, 435. 
 Haynie v. Baylor, 410. 
 Hays V. Pennsj'lvania Co., 550. 
 Hays V. Wells, Fargo & Co., 488. 
 Hayward v. Middleton, 545. 
 Hazard v. Wells, 316. 
 Head v. Goodwin, 226. 
 Heath v. Glens Falls Street-Car Co., 
 
 657. 
 Heath v. Silverthorn Co., 290. 
 Hedges et al. v. Railway Co., 579. 
 Hegeman v. Western R. Corp., 627. 
 Heil V. Railway Co., 710. 
 Heiskill v. Bank, 353, 562. 
 Heller v. Railway Co., 488, 489. 
 Helliwell v. Railway Co., 457. 
 Heramelmann v. Fitzpatrick, 298. 
 Hempner v. Comer, 243. 
 Henderson v. Mayor of New York, 
 
 613. 
 Henderson v. Stephenson, 515. 
 Hendricks v. Railway Co., 596. 
 Hendricks v. Robinson, 391. 
 Hensel v. Noble, 68, 163. 
 Herbert v. Markwell, 358. 
 Hern v. Nichols, 558. 
 Herrick v. Gallagher, 573. 
 Hersh v. Railway Co., 550. 
 Hewitt V. Railway Co., 457. 
 
 Hexamer v. Webb, 308. 
 Heyward v. Railway Co., 665. 
 Hiatt V. Railway Co., 639. 
 Hibbard v. Railway Co., 613, 636. 
 Hickey v. Morrell, 304. 
 
 Hickox V. Buckingham, 463, 540. 
 
 Hickman v. Thomas, 386. 
 
 Hill V. Denver, 557. 
 
 Hill V. Owen, 357. 
 
 Hill V. Railway Co., 533 637. 
 
 Hills V. Smith, 291. 
 
 Hilton V. Adams, 360. 
 
 Hilton V. Sims, 234. 
 
 Hinsdell v. Weed, 537. 
 
 Hoadley v. Northern Transp. Co., 509. 
 
 Hobbs V. Railway Co., 722. 
 
 Hodgen v. Railway Co., 504. 
 
 Hodges V. Tennessee Ins. Co., 252. 
 
 Hoeger v. Railway Co., 674. 
 
 Hofer V. Hodge, 132. 
 
 Hofibauer v. Railway Co., 646. 
 
 Hoffman v. Railway Co., 648. 
 
 Holbrook v. N. J. Zinc Co., 249. 
 
 Holbrook v. Wight, 61. 
 
 Hoi den v. Soulby, 364. 
 
 Holeman v. Hobson. 317. 
 
 Holmes v. Bailey, 355. 
 
 Holmes v. German Security Bank, 
 255. 
 
 Holt V. Wesoott, 545. 
 
 Hollingsworth v. Dow, 163. 
 
 Hollister v. Nowlen, 474, 483, 509, 530. 
 
 Home Ins. Co. v. Baltimore Ware- 
 house Co., 177. 
 
 Homer v. Savings Bank, 387. 
 
 Hood v. New York, etc. Ry. Co., 530. 
 
 Hook T. Ayers, 288. 
 
 Hoover et al. v. Railway Co., 550. 
 
 Hopkins v. Wescott, 671. 
 
 Hoppin V. Buffum, 350. 
 
 Horner v. Savings Bank, 310. 
 
 Hosmer v. Railway Co., 661. 
 
 Hough V. People's Ins. Co., 177. 
 
 Houghton V. Houghton, 800. 
 
 House V. Alexander, 558. 
 
 Houser v. TuUa. 356, 360, 363. 
 
 Houston, etc. Ry. Co. v. Hampton, 
 598. 
 
 Houston, etc, Ry. Co. v. Hodde, 431. 
 
xl 
 
 TABLE OF CASES. 
 
 References are to sections. 
 
 Houston, etc. Ry. Co. v. Ney, 712. 
 
 Houston, etc. Ry. Co. v. Norris, 657. 
 
 Houston, etc. Ry. Co. v. Smith, 709. 
 
 Howard v. Farr, 138. 
 
 Howard v. Harris, 252. 
 
 Howard v. Manufacturing Co., 494. 
 
 Howard v. Old Dominion Co., 561. 
 
 Howe V. Russell, 352. 
 
 Howe V. Stewart, 589. 
 
 Howe Machine Co. v. Pease, 353, 356, 
 
 357. 
 Howland v. Railway Co., 600. 
 Howth V. Franklin, 330. 
 Hozier v. Railway Co., 550. 
 Hubbersty v. Ward, 439. 
 Hufford V. Railway Co., 645. 
 Hughs V. Edwards, 252. 
 Huiton V. Dibbonds, 42. 
 Hulbert v. Hartman, 353, 355. 
 Huldemau v. German Security Bank, 
 
 232. 
 Hulett V. Swift, 849, 353, 360. 
 Hull V. Railway Co., 471. 
 Humphreys v. Perry, 673. 
 Hunsaker v. Sturgis, 391. 
 Hunt V. Wyman, 59. 
 Hunter v. Railway Co., 530. 
 Hunterdon Co. v. Nassau Bank, 349. 
 Hurd V. Railway Co., 613. 
 Hursh V. Byers, 387. 
 Hurwitz V. Hamburg, etc. Packet 
 
 Co., 668, 671. 
 Hutchinson v. Commonwealth. 211. 
 Hutchinson v. Chicago, St. P. etc. 
 
 Co., 483. 
 Hutchinson v. Railway Co., 600. 
 Huyler v. Dahoney, 313. 
 Hyde v. Cookson, 140. 
 Illinois Cent. Ry. Co. v. Adams, 489. 
 Illinois Cent. Ry. Co. v. Ashmead, 
 
 182. 
 Illinois Cent. Ry. Co. v. Bauer, 644. 
 Illinois Cent. Ry. Co. v. Beebe, 599, 
 
 682. 
 Illinois Cent. Ry. Co. v. Carter, 528. 
 Illinois Cent. Ry. Ca v. Cobb, 444. 
 
 445, 494. 
 Illinois Cent. Ry. Co. v. Copeland, 
 
 530. 
 Illinois Cent. Ry. Co. v. Crudup, 660. 
 
 Illinois Cent. Ry. Co. v. Frankenberg, 
 
 530, 530. 
 Illinois Cent. Ry. Co. v. Handy, 641, 
 
 684. 
 Illinois Cent. Ry. Co. v. Harris, 489. 
 Illinois Cent. Ry. Co. v. Hobbs, 639. 
 Illinois Cent. Ry. Co. v. Hornberger, 
 
 182. 
 Illinois Cent. Ry. Co. v. Minor, 633. 
 Illinois Cent. Ry. Co. v. Morrison, 509, 
 
 510, 518. 
 Illinois Cent. Ry. Co. v. McClellan, 
 
 183. 
 Illinois Cent. Ry. Co. v. O'Keefe, 601. 
 Illinois Cent. Ry. Co. v. Read, 662. 
 Illinois Cent. Ry. Co. v. Schwartz, 
 
 444. 
 Illinois Cent. Ry. Co. v. Smyser, 433, 
 
 453. 
 Illinois Cent. Ry. Co. v. Southern 
 
 Bank, 356. 
 Illinois Cent. Ry. Co. v. Treat, 596. 
 Illinois Cent. Ry. Co. v. Whittemore, 
 
 613. 
 Indiana, etc. Ry. Co. v. McKennan, 
 
 304. 
 Indiana, etc. Ry. Co. v. Mundy, 660, 
 
 664. 
 Indianapolis, etc. Ry. Co. v. Cox, 523. 
 Indianapolis, etc. Ry. Co. v. Herndon, 
 
 561. 
 Indianapolis, etc. Ry. Co. v. Rinard, 
 
 609. 
 Ingalls V. Bills, 635, 687. 
 Ingelbby v. Wood, 349. 
 Ingersoll v. Van Bokkelin, 540. 
 Inglebrigbt v. Hammond, 63. 
 Inman v. Railway Co., 446. 660. 
 Inman v. South Carolina, etc. Ry. Co., 
 
 541. 
 In re Mosser's Estate, 334. 
 In re Oakley et al.. 379. 
 In re Peterson v. Case, 714. 
 In re Riley, 313. 
 Insurance Co. v. Chase. 177. 
 Insurance Co. v. Easton, 471. 
 Insurance Co. v. Railway Co., 528, 
 
 541. 
 International, etc. Co. v. Nicholson, 
 
 714. 
 
TABLE OF OASES. 
 
 xli 
 
 References are to sections. 
 
 International, etc. Co. v. Tisdale, 531. 
 Interstate Com. v. Railroad Co., 550. 
 Iron Mountain Ry. Co. v. Knight, 439. 
 Irons V. Kentner, 24. 
 Isbell V. Railway Co., 653. 
 Iseman v. South Carolina, etc. Co., 
 
 597. 
 J. P. Donaldson, The, 414> 
 Jackson v. Adams, 158. 
 Jackson v. Bank, 817. 
 Jackson v. Blodgett, 271. 
 Jackson v. Bronson, 271. 
 Jackson v. Cummins, 163. 
 Jackson Agr. Iron Works v. Hurlburt, 
 
 419. 
 Jacobi V. Haynes, 356. 
 Jacobs V. Latour, 168. 
 Jacobus V. Railway Co., 509, 660, 664. 
 Jagger v. Railway Co., 655. 
 Jalie V. Cardinal et al., 356, 363. 
 James v. Emmett Co., 716. 
 James v. Plank, 24 
 Jamison v. Gray, 456. 
 Jaques v. Marquand, 244. 
 Jarvis v. Rogers, 334, 386, 289. 
 Jasper Trust Co. v. Railway Co., 359. 
 JeffersonviUe Ry. Co. v. Irwin, 355. 
 Jeffris V. Railway Co., 558. 
 Jellett V. Railway Co., 366. 
 Jeucks V. Coleman, 610, 613. 
 Jenkins v. Eldridge, 353. 
 Jenkins v. National Bank, 393. 
 Jenneson v. Railway Co., 580. 
 Jenness v. Bean, 343, 313. 
 Jennison v. Parker, 303. 
 Jerome v. McCarter, 303, 308, 312. 
 Jewel V. Railway Ca, 656. 
 Jewett V. Warren, 380. 
 Johnson v. Davis, 557. 
 Johnson v. Eveleth, 590. 
 Johnson v. Hill, 165. 
 Johnson v. Laflin. 349. 
 Johnson v. Miller, 64, 137. 
 Johnston v, Friar, 410. 
 Johnston v. Pensacola Ry. Co., 543, 
 
 550. 
 Johnston v. Railway Co., 499, 584. 
 Johnston \. Richardson, 853, 359. 
 Johnston v. Smith, 386. 
 Johnston v. Underbill, 349. 
 
 Joliet Iron Co. v. Railway Co., 313, 
 315. 
 
 Jones V. Earle, 589. 
 
 Jones V. Hicks, 316. 
 
 Jones V. Morgan, 190. 
 
 Jones V. Richardson, 336. 
 
 Jones V. Railway Co., 602, 660, 734 
 
 Jones V. Scott, 299. 
 
 Jones V. Vorhees, 530. 
 
 Jordan v. Railway Co., 671. 
 
 Joslin V. Railway Co., 98, 708. 
 
 Joslyn V. King, 98. 
 
 Judson V. Railway Co., 513, 530. 
 
 Kaiser v. Latimer, 303. 
 
 Kaiser v. Topping, 338. 
 
 Kalen v. Railway Co., 734. 
 
 Kamena v. Huelbig, 241. 
 
 Kansas, etc. Ry. Co. v. Simpson, 510, 
 515. 
 
 Keater v. Scranton Traction Co., 608. 
 
 Keenan v. Southworth, 389. 
 
 Keith V. Bliss, 153. 
 
 Kellerman v. Railway Co., 513. 
 
 Kellow V. Railway Co., 623. 
 
 Kelly V. Kahn, 94 
 
 Kelly V. Manhattan, etc. Co., 629. 
 
 Kelly V. Patchell, 63. 
 
 Kelly V. Railway Co.. 623. 
 
 Kemp V. Coughtry, 411. 
 
 Kemp V. Westbrook, 326. 
 
 Kendall v. Boston. 721. 
 
 Kendall & Co. v. Mason, 312. 
 
 Kennedy v. New York Cent. Ry. Co., 
 519. 
 
 Kenny v. Railway Co., 519. 
 
 Kent V. Shackford, 348. 
 
 Kentucky Bank v. Adams Exp. Co., 
 421. 
 
 Kentucky Wagon Mfg. Co. v. Rail- 
 way Co., 561. 
 
 Kimball v. Cushman, 208. 
 
 Kimball v. Rutland, 509, 530. 
 
 King V. Bates, 80. 
 
 King V. Railway Co., 208. 
 
 King V. Shepherd, 463, 471. 
 
 King V. Texas, etc. Ins. Co., 306. 
 
 Kingman v. Dennison, 590. 
 
 Kinney v. Kempton, 293. 
 
 Kinney v. Kruse, 243. 
 
 Kinny v. Railway Co., 664 
 
xlu 
 
 TABLE OF CASES. 
 
 References are to sections. 
 
 Kirby v. Delaware, etc. Co., 629. 
 Kirk V. Chicago, etc. Co., 581. 
 Kirk V. Railway Co., 184 
 Kirkman v. Bowman, 462. 
 Kirkham v. Shawcross, 163. 
 Kirney v. Railway Co., 661. 
 Kissman v. Jones, 12.5. 
 Kiston V. Hildebrand, 349, 3.59. 
 Kleiber v. Rail-H-ay Co., 637. 
 Knapp V. Curtis, 204. 
 Knight V. Bell, 80. 
 Knight V. Davis Car Co., 58. 
 Knight V. Piella, 206. 
 Knott V. Railway Co., 530. 
 Knowles v. Railway Co., 208. 
 Knowlton v. Railway Co., 597. 
 Knowlton v. Western R. Corp., 597. 
 Kopper V. Willis, 335. 
 Kortright v. Commercial Bank, 247, 
 
 248. 
 Kortwright v. Cady, 559. 
 Krulder v. Ellison, 696. 
 Kuehn v. Wilson, 153. 
 Kumler v. Railway Co., 600. 
 Kunkle v. Wolfersberger, 252. 
 Lacey v. Thompson, 329. 
 Ladd V. Railway Co., 600. 
 Lafaye v. Harris, 45.5. 
 Lafitte V. Railway Co., 647. 
 Laing v. Burley, 250. 
 Laing v. Colder, 520. 
 Laird v. Eignold, 352. 
 Lakeman v. Grinnell, 453. 
 Lake Erie, etc. Co. v. Hatch, 581. 
 Lake Erie, etc. Ry. Co. s: Fix, 634. 
 Lake Shore, etc. Co. v. Banks, 656. 
 Lake Shore, etc. Co. v. Brown, 599. 
 Lake Shore, etc. Co. v. Perkins, 488. 
 Lake Shore, etc. Ry. Co. v. Mortal, 
 
 633. 
 Lake Shore, etc. Ry. Co. v. Orndorff, 
 
 644. 
 Lamb v. Parkman, 399. 
 Lamb v. Railway Co., 206. 
 Lancaster Company Nat. Bank v. 
 
 Smith, 198. 
 Lancaster Mills v. Merchants' Cotton 
 
 Press Co., 177, 204. 
 Lancaster Mills v. Railway Co., 157. 
 Lane v. Cameron, 47. 
 
 Lane v. Cotton, 389. 
 
 Lane et al. v. Old Colony, etc. Ry. Co., 
 
 183, 558. 
 Lansing v. Railway Co., 434. 
 Lassen v. Clark, 360. 
 Laughlin et al. v. Railway Co., 536. 
 Laurent v. Vaughan, 456. 
 Lawrence v. Aberdein, 487. 
 Lawrence v. Clark, 244. 
 Lawrence v. Green, 721. 
 Lawrence v. Maxwell, 290. 
 Lawrence v. Railway Co., 512. 
 Lawson v. Gennesee Farmer & Co., 
 
 180. 
 Lawson v. Railway Co., 599. 
 Lay V. Lawson, 80. 
 League v. Rogan, 353. 
 Leahy v. Lobdell, Farrell & Co., 305. 
 Ledyard v. Hibbard, 24, 211. 
 Lee V. Baldwin, 316. 
 Legg V. Willard, 399. 
 Lehr v. Railway Co., 631. 
 Leidy v. Quaker City Cold Storage 
 
 & Warehouse Co., 204. 
 Leigh V. Smith, 430, 431, 433, 439. 
 Leitch V. Wells, 249. 
 Lemon v. Chanslor, 418. 
 Lempier v. Pasley, 55.5. 
 Leo V. Railway Co., 536. 
 Le Barron v. Ferry Co., 665. 
 Le Peintur v. Railway Co., 714 
 Lesassier v. S. W. Co., 590. 
 Lesinski v. G. W. D. Co., 534, 734 
 Levering v. Transp. Co., 515. 
 Levi V. Corey, 347. 
 Levi V. Lynn. etc. Ry. Co., 420. 
 Levien v. Webb, 641. 
 Levinski v. Banking Co., 734. 
 Lewis V. Great Western Ry. Co., 516. 
 Lewis v. Hitchcock, 332. 
 Lewis V. Mott. 286. 
 Lewis V. New York Sleeping Car Co., 
 
 333, 641, 685. 
 Lewis V. Tyler, 163. 
 Lewis V. Van Horn, 436. 
 Lexington Ry. Co. v. Kidd, 57. 
 Libby v. Railway Co.. .598. 
 Lichtenheim v. Railway Co., 205, 210. 
 Lickbarrow v. JIason, 25.5. 264. 590. 
 Lidderdale v. Montrose, 228. 
 
TABLE OF CASES. 
 
 xliii 
 
 References are to sections. 
 
 Lillibridge v. MoCann, 655. 
 
 Lime Rook Bank v. Plumpton, 244. 
 
 Lincoln v. Gay, 153. 
 
 Little V. Fosset, 58, 540. 
 
 Little V. Railway Co., 530. 
 
 Littlefield v. Biddeford, 58. 
 
 Little Rock v. Atkins, 655. 
 
 Little Rook, etc. Co. v. Cravens, 513, 
 
 514. 
 Little Rook, etc. Ry. Co. v. Opper- 
 
 heimer, etc. Co., 550. 
 Little Look, etc. Ry. Co. v. Talbot, 
 
 519. 
 Liverpool, etc. Ins. Co. v. McNeill, 
 
 510. 
 Liverpool Steamboat Co. v. Phoenix 
 
 Co., 413,414, 510,660. 
 Lock Co. V. Railway Co., 536. 
 Lockwood V. Ball, 126. 
 Loeb V. Peters, 587, 588, 590. 
 London & L. Ins. Co. v. Railway Co., 
 
 430. 
 Long V. Printing Co., 706. 
 Long V. Railway Co., 469. 
 Lomis V. Jewett, 297. 
 Loomis V. Stave, 308. 
 Lord V. Hartford, 305. 
 Loud V. Burke, 304. 
 Louisville, etc. Co. v. Keifer, 660. 
 Louisville, etc. Co. v. Logan, 648. 
 Louisville, etc. Ry. Co. v. Echols, 430. 
 Louisville, etc. Ry. Co. v. Faylor, 660. 
 Louisville, etc. Ry. Co. v. Flanagan, 
 
 481, 445. 456. 
 Louisville, etc. Ry. Co. v. Garrett, 
 
 646. 
 Louisville, etc. Ry. Co. v. Gerson, 411. 
 Louisville, etc. Ry. Co. v. Gilbert, 514, 
 
 519. 
 Louisville, etc. Ry. Co. v. Hailey, 603. 
 Louisville, etc. Ry. Co. v. Johnston, 
 
 653. 
 Louisville, etc. Ry. Co. v. Jones, 731. 
 Louisville, etc. Ry. Co. v. Mississippi, 
 
 etc. Co., 613. 
 Louisville, etc. Ry. Co. v. Moss, 603. 
 Louisville, etc. Ry. Co. v. Patterson, 
 
 681. 
 Louisville, etc. Ry. Co. v. Wilson, 
 
 543, 550. 
 
 Louisville, etc. Ry. Co. v. Wright, 
 
 688. 
 Lovejoy v. Jones, 64, 127. 
 Loveland v. Burke, 481. 
 Low V. Pew, 226. 
 Lowrie v. Executrix, 176. 
 Loyd V. Lynchburg Nat. Bank, 331. 
 Lucas V. Railway Co., 629. 
 Lucas V. Milwaukee, etc. Ry. Co., 
 
 602. 
 Lucketts V. Townsend, 281. 
 Lucy V. Railway Co., 683. 
 Luhrs V. Brooklyn Heights R Co., 
 
 633. 
 Luke V. Wheat Mining Co., 654. 
 Lundy v. Railway Co., 638. 
 Lusby V. Railway Co., 665. 
 Lusk V. Belote, 337. 
 Lycett V. Railway Co., 641. 
 Lynar v. Mossope, 339. 
 Lynch v. Kluber, 205. 
 Lynch v. Railway Co., 648. 
 Lyon V. Lenon et al., 175, 211. 
 Lyon V. Woodward, 716. 
 Lyons, etc. Co. v. Hill & Co., 571. 
 Mack V. Snell, 33, 140, 144. 
 Macklrn v. Fraser, 173. 
 Macrow v. Railway Co., 669. 
 Maghee v. Camden, 405, 524. 
 Maghee v. Railway Co., 499. 
 Magnin v. Dinsmore, 482. 
 Mahony v. Caperton, 234, 317. 
 Mahony v. Hale, 839. 
 Mairs v. Taylor, 288. 
 Mallory v. Willis, 140. 
 Mange v. Heringhi, 309. 
 Mansen v. Jacobs, 582. 
 Mann v. Logging Co., 427. 
 Mann v. White River, etc. Co., 426. 
 Mann Boudoir Co. v. Dupre, 642. 
 Manning v. HoUenbeck, 875, 379, 381, 
 
 386. 
 Manning v. Wells, 853, 864. 
 Mansur-Tebbetts Implement Co. v. 
 
 Carey et al, 276. 
 Manufacturers' & Traders' Bank v. 
 
 Hazard, 463. 
 Manufacturing Co. v. Falvey, 317. 
 Manufacturing Co. v. Miller, 837. 
 Manufacturing Co. v. Pinch, 494. 
 
xliF 
 
 TABLE OF CASES. 
 
 References are to sections. 
 
 Maples v. Railway Co., 636. 
 Marine Bank v. Wright, 856. 
 Markham v. Brown, 343, 348, 368, 610. 
 Marriam v. Railway Co., 439. 
 Marsh v. Railway Co., 714. 
 Marshall v. Express Co.. 567, 570. 
 Martin v. McReynolds, 271. 
 Maslin v. Railway Co., 513, 599. 
 Mason v. Thompson, 338, 348, 349, 353, 
 
 363, 366. 
 Mason v. Waite, 344. 
 Masterson v. Street Car Co., 655. 
 Mateer v. Brown, 352. 
 Mathias v. Sellers. 163. 
 Maiiran v. Insurance Co.. 474. 
 Maxwell v. Eason, 133. 
 Mayer v. Heidelbacb, 244. 
 McAllister v. Simon. 207. 
 McArthur v. Howett, 390. 
 McCafferty v. Brady, 210. 
 McCalla v. Clark, 282, 294. 
 McCarthy v. Gould, 228. 
 McCaw V. Kimbrel, 133. 
 McCawley v. Railway Co., 661. 
 McClure v. Railway Co., 637. 
 McClure v. Roman, 235. 
 McConnihe v. Railway Co., 143. 
 McConnell v. Hughes, 175. 
 MoConnell v. Railway Co., 530. 
 McCoy T. Hock, 163. 
 McCoy V. Keokuk Ry. Co., 487, 509. 
 McCurty v. Railway Co., 581. 
 McCutcheon v. People, 213. 
 McDaniel v. Railway Co.. 600. 
 MoDaniels v. Flour Mfg. Co., 390. 
 McDaniels v. Robinson, 338, 353, 358. 
 McDonald v. Railway Co.. .581, 635. 
 McDowell V. Chicago Steel Works et 
 
 al., 303, 304. 
 McDowell V. Railway Co., 184. 
 McDuffie V. Railway Co., 549, 550. 
 McEntee v. New Jersey S. S. Co., 561. 
 McFall V. Buckeye, 338. 
 McGee v. Pacific Implement Co., 337. 
 McGhee v. Edwards, 163. 
 McGill V. Rowand, 668. 
 McGoffin V. Railway Co., 598. 
 McGraw v. Railway Co., 471, 495, 496. 
 MoGrew v. Thayer, 24. 
 McHenry v. Railway Co., 353, 469. 
 
 McHugh V. Schlosser, 345, 347, 368. 
 Mclver v. Railway Co., 647. 
 McKay v. Railway Co., 637. 
 McKee v. Hecksher, 538. 
 McKee v. Owen, 333, 610, 686. 
 McKinney v. Neil, 631. 
 McLean v. Burbank, 721. 
 McManus v. Lancashire Ry. Co., 488. 
 McMaster v. Herrick, 73, 385. 
 McMillan v. Railway Co., 184, .509, 520, 
 
 522, 530, 581, 584. 
 McNamara v. Railway Co., 603. 
 McNeil V. Tenth Nat. Bank, 349. 
 McNulty V. Railway Co., 600. 
 McQuilten v. Railway Co., 654, 655. 
 McTyre v. Steel, 462. 
 McVeety v. Railway Co., 603, 640. 
 Mead v. Bucn, 331. 
 Mechanics' Bldg. & Loan Ass'n v. 
 
 Conover, 278. 
 Mechanics' Bank t. Farmers' Bank, 
 
 366. 
 Medbury v. Railway Co., 713. 
 Medlin v. Wilkinson. 64. 
 Megee v. Beirne, 163. 
 Meier v. Railway Co., 624, 721. 
 Meigs T. Hayden, 697. 
 Melzer v. Peninsular, 654. 
 Memphis Bethel v. Bank, 243. 
 Merchants' Bank v. U. R. R. T. Co., 
 
 355. 
 Merchants' Ins. Co. v. Abbott, 244 
 Merchants' Dispatch Transp. Co. >. 
 
 Block, 431. 
 Merchants' Dispatch Transp. Ca v. 
 
 Cornforth, 457. 
 Merchants' Dispatch Co. v. Furth- 
 
 mann, 622. 
 Merchants' Nat. Bank v. Guilmartin, 
 
 198. 
 Merchants" Nat. Bank v. Haverhill 
 
 Iron Works, 844. 
 Merchants' Nat. Bank v. Hall, 331. 
 
 333. 33.5. 
 Merchants' Nat. Bank v. State Nat. 
 
 Bank, 808. 386. 
 Merchants' Nat. Bank v. Thompson, 
 
 303, 319. 
 Merriam v. Railway Co., 450. 
 Merrick v. Brainard, 540. 
 
TABLE OF OASES. 
 
 xlv 
 
 References are to sectiong. 
 
 Merrick v. Webster, 507. 
 
 Merrifleld v. Baker, 891. 
 
 Merrill v. American Exp. Co., 516. 
 
 Merrill v. Claghorne, 349, 352, 353. 
 
 Merrill v. Grinnell, 671, 681. 
 
 Merritt v. Bartholick, 371. 
 
 Merritt v. Earle, 471. 
 
 Merritt v. Old Colony, etc. Ey. Co., 
 
 174, 193, 201. 
 Mershou v. Hobensack, 406, 410. 
 Messenger v. Railway Co., 424, 549, 
 
 609. 
 Metcalf V. Hess, 357, 360. 
 Metz V. Railway Co., 668. 
 Metzger v. Schnabel, 337. 
 Meyer v. Peck, 462, 464. 
 Meyer v. Railway Co., 182, 633. 
 Michigan Ceht. Ry. Co. v. Burrows, 
 
 447. 501. 
 Michigan Cent. Ry. Co. v. Coleman, 
 
 629, 655. 
 Michigan Cent. Ry. Co. v. Curtis, 471. 
 Michigan Cent. Ry. Co. v. Hale, 488, 
 
 513, 530. 
 Michigan Cent. Ry. Co. ,v. Philips, 
 
 355, 357. 
 Michigan Southern Ry. Co. v. Caster, 
 
 456. 
 Michigan Southern Ry. Co. v. Mc- 
 
 Donough, 488. 
 Midgeley v. Slocumb, 313. 
 Midland Ry. Co. v. Bromley, 536. 
 Miles V. Reinger, 243. 
 Miles T. Walther, 308. 
 Miller v. Gettysburg Bank, 316. 
 Miller v. Marston, 163. 
 Miller v. Railway Co., 462. 
 Millikin v. Jones, 163. 
 Milliner v. Florence. 375. 
 Milloy V. Railway Co., 183. 
 Mills V. Shirley, 387. 
 Milwaukee, etc. Ry. Co. v. Arms, 198, 
 
 706. 
 Milwaukee Malt Extract Co. v. Rail- 
 way Co., 444. 
 Mims V.Mitchell, 132. 
 Minet v. Forester. 84 
 Minor v. Railway Co., 545. 
 Mirandona v. Burg, 724. 
 Missouri, etc. Ey. Co. v. Carter, 516. 
 
 Missouri Pac. etc. Co. v. Fagin, 489. 
 Missouri Pac. etc. Ry. Co. v. McFad- 
 
 den, 439. 
 Missouri Pac. Ry. Co. v. Evans, 648. 
 Missouri Pac. Ry. Co. v. Hall, 494. 
 Missouri Pac. Ry. Co. v. Heidenhei- 
 
 mer, 561. 
 Missouri Pac. Ry. Co. v. Ivey, 597, 
 
 680. 
 Missouri Pac. Ry. Co. v. Wortham, 
 
 629. 
 Mitchell V. Green, 253. 
 Mitchell V. Hotchkiss, 716. 
 Mitchell V. Railway Co., 731. 
 Mitchell V. Roberts, 298, 301. 
 Moflfatt V. Van Dorn, 229. 
 Mohr V. Railway Co., 581. 
 Monongahela Ins. Co. v. Chester, 353. 
 Montgomery, etc. Ry. Co. v. Kolb et 
 
 a1., 432, 453. 
 Moore v. Long Beach, 337. 
 Moore v. Railway Co., 640. 
 Moore v. Reading. 338. 
 Moore v. Rider, 244 
 Moran v. Portland S. P. Co., 58. 
 Moran Bros. v. Railway Co., 559. 
 Mores v. Norris, 410. 
 Morgan v. Earey, 358. 
 Moriarty v. Porter, 125. 
 Morningstar v. Cunningham, 311. 
 Morris v. Nixon, 353. 
 Morris Canal v. Fisher, 234 
 Morris Canal, etc. Co. v. Lewis, 817. 
 Morrison v. Street-Car Co., 655. 
 Morse v Crawford. 213. 
 Morse v. Woods. 297. 
 Moses V. Boston, etc. Ry. Co., 530, 533, 
 
 556. 583. 
 Moses V. Port Townsend, 175. 
 Moses V. Railway Co., 185, 439. 
 Moses V. Trice, 393. 
 Mosher v. Railway Co., 633. 
 Moss V. Battis, 410. 
 Moulton V. Phillips, 203. 
 Mowers v. Fethers. 367, 373. 
 Moylan v. Second Ave. R. Co., 655. 
 Moynahan v. Moore, 398. 
 Mt. Holly Turnpike v. Ferree, 247, 249. 
 Mudgett V. Bay State, etc., 686. 
 Muirhead v. Kilpatrick, 316. 
 
xlvi 
 
 TABLE OF CASES. 
 
 E«f erences are to sectiong. 
 
 Muldoon V. Seattle, etc. Co., 661, 664. 
 Mulhall V. Quinn, 336. 
 Mullan V. Railway Co., 633. 
 Mulligan v. Northern Pao. Ey. Co., 
 
 183. 
 Mulligan v. Railway Co., 530. 
 Munger v. Albany City Nat. Bank, 
 
 313. 
 Murphy v. Partsch, 392. 
 Murray v. Marshall, 873. 
 Murray v. Warner, 569. 
 Murris v. N. H. S. S. Co., 517. 
 Muschamp v. Railway Co., 529, 580. 
 Muster v. Railway Co., 208. 
 Myers v. Bank, 333. 
 Myers v. Cottrill, 367. 
 Myers v. "Walker, SOi 
 Myning v. Railway Co., 654. 
 Myrick v. Railway Co., 487, 538. 
 Nagler v. Pacific Wharf Co., 351. 
 Nansen v. Jacobs, 433. 
 Nasli V. Page, 173. 
 
 Nashville, etc. Ry. Co. v. Jackson, 472. 
 Nashville, etc. Ry. Co. v. Jones. 637. 
 Nasliville, etc. Ry. Co. v. King, 472. 
 National Bank v. Crocker, 354. 
 National Bank v. Langdon, 172. 
 National Bank v. Loomis, 307. 
 National Bank v. Wilder, 178. 
 National Bank of Commerce v. Rail- 
 way Co., 453, 463. 
 National Bank of Illinois v. Baker, 
 
 303, 313. 
 National Revere Bank v. Morse, 344. 
 Naugatuck Ry. Co. v. Beardsley 
 
 Scythe Co., 544. 
 Naugatuck Ry. Co. v. Waterbury 
 
 Button Co., 530. 
 Navigation Co. v. Bank, 515. 
 Neal V. Wilcox, 386, 367. 
 Negus V. Simpson, 313. 
 Neill & Ellington v. Produce Co., 355. 
 Neimeyer Lumber Co. v. Railway 
 
 Co., 590. 
 Nelson v. Brown, 175. 
 Nelson v. Eaton, 343. 
 Nelson v. Edwards, 313. 
 Nelson v. Railway Co., 485. 
 Nelson v. Wellington, 313. 
 Nesbitt V. Macon Bank, 238. 
 
 Nevan v. Roup, 69. 
 
 Newberry v. Detroit L. S. Iron Co.. 
 
 351. 
 New Brunswick S. S. Co. v. Tiers, 
 
 434. 
 New England v. Railway Co., 549. 
 New England Exp. Co. v. Railway 
 
 Co., 550. 
 New England Ins. Co. v. The Sarah 
 
 Ann, 543. 
 Newhall v. Railway Co., 360. 
 Newhall v. Varges, 559. 
 Newhall, Ex parte, 84. 
 New Hampshire & C. Co. v. Camel, 
 
 558. 
 New Jersey, etc. Co. v. Bank, 697. 
 New Jersey, etc. Co. v. Brookett, 647, 
 
 648. 
 New Jersey, etc. Co. v. Pollard, 731. 
 New Jersey, etc. Co. v. Railway Co., 
 
 138. 
 New Jersey Steam Transp. Co. v. 
 
 Mechanics' Bank, 509, 520, 532. 
 New Orleans Canal & B. Co. v. Mont- 
 gomery, 370. 
 Newsome v. Davis, 317. 
 Newton v. Fay, 252. 
 Newton v. Trigg, 352. 
 New York, etc. Co. v. Cromwell, 457. 
 New York, etc. Co. v. Enches, 656. 
 New York, etc. Ry. Co. v. New Jersey 
 
 EI. R. Co., 128, 129, 151. 
 New York, etc. Ry. Co. v. Schuyler, 
 
 249. 
 New York, etc. Ry. Co. v. Standard 
 
 Oil Co., 538. 
 New York Cent. Ry. Co. v. Davis, 
 
 557, 558. 
 NicoU V. Railway Co.. 692. 
 Nichols V. HoUiday, 387. 
 Nichols V. Smith, 435. 
 Nitro-Glycerine Case, 444. 
 Noble V. Railway Co., 608. 
 Norfolk, etc. Co. v. Barnes, 558. 
 Norfolk, etc. Co. v. Reeves, 517. 
 Norfolk, etc. Ry. Co. v. Shott, 598. 
 North Chicago Street-car Co. v. Baur, 
 
 6.j1. 
 North Chicago Street-car Co. v. Cook, 
 
 617. 
 
TABLE OF CASES. 
 
 xlvii 
 
 Eeterences are to sections. 
 
 North Chicago Street-car Co. v. Will- 
 iams, 595. 
 North Chicago, etc. Ca v. Thurston, 
 
 597. 
 North Chicago, etc. Co. v. Zeiger, 734. 
 Northern German Lloyd v. Heale, 
 
 545. 
 Northern Pac. Go. v. Commercial 
 
 Nat. Bank, 561. 
 Northern Pac. Ry. Go. v. Herbert, 
 
 623. 
 Northern Pac. Ry. Co. v. Pauson, 636. 
 Northwest Nat. Bank v. Thompson 
 
 Mfg. Co., 376. 
 Norton v. Plumb, 331. 
 Norton v. Woodruff, 179. 
 Norway Plains Co. v. Boston, 434> 581, 
 
 583. 
 Norwegian Plow Co. v. Clark, 33. 
 Norwood V. Guerdon, 369. 
 Nugent V. Smith, 408, 413. 
 Nutting V. Couneoticut River Ry. 
 
 Co., 538, 530. 
 Cakes v. Railway Co., 671, 673, 674. 
 Gates V. National Bank, 343. 
 Oatis V. Gardner, 350, 351. 
 Ober V. Gallagher, 370. 
 O'Brien v. Gilchrist, 463. 
 O'Brien v. Norris, 588. 
 O'Brien v. Railway Co., 646. 
 Ocean S. S. Co. v. Way, 673. 
 O'Connor v. Forster, 456. 
 O'Dell V. Leyda, 34. 
 O'Flaherty v. Railway Co., 734. 
 OSerman v. Union Depot Co., 656. 
 Ogden V. Lathrop, 303. 
 Ogdensburg Ry. Go v. Pratt, 530. 
 Ohio, etc. Co. v. Selby, 579. 
 Ohio, etc. Ry. Co. v. Niokless, 660. 
 Ohio, etc. Ry. Co. v. Tyndall, 600. 
 Ohio, etc. Ry. Co. v. Voigt, 598. 
 O'Kelley v. Ferguson, 277. 
 Olds V. Railway Co., 665. 
 Oliver v. Green, 177. 
 Omaha, etc. Ry. Co. v. Emminger, 
 
 734. 
 Opperheimer v. U. S. Exp. Co., 483, 
 
 510. 
 Orange County Bank v. Brown, 483. 
 Orchard v. Bush, 339. 
 
 Oregon Short Line, etc. Co. v. North- 
 ern Pacific Ry. Co., 544. 
 Orndorff v. Adams Exp. Co., 520. 
 O'Rourke v. C, B. & Q. Ry. Co., 
 
 645. 
 O'Rourke v. Railway Co., 480. 
 Orr V. Railway Co., 536. 
 Ortt V. Railway Co., 530. 
 Osgood V. Nichols, 53. 
 Ostrander v. Brown, 575. 
 Ouderkirk v. Bank, 79. 
 Owen V. Boyle, 171. 
 Oxford V. Prior, 369. 
 Oxlade v. Railway Co., 550. 
 Oxley V. Railway Co., 693. 
 Pacific Exp. Go. v. Darnell Bros., 494 
 Pacific Exp. Co. v. Shearer, 561. 
 Pacific, etc. Ry. Co. v. Hazen, 500. 
 Pacific, etc. Ry. Co. v. Hollowell, 500. 
 Pacific, etc. Ry. Go. v. Stern, etc., 562. 
 Pacific Coast S. S. Co. v. Bancroft- 
 Whitney Co., 516. 
 Packer v. Getman, 187, 431, 433. 
 
 Paine v. Packard, 307. 
 
 Palin V. Reid, 338. 
 
 Palmer v. Canal Co., 614, 625. 
 
 Palmer v. Grand Junction Ry. Ca, 
 488. 
 
 Palmer v. Railway Co., 496, 654. 
 
 Paramore v. Railway Co., 457. 
 
 Parish v. Stone, 317. 
 
 Parker v. Flagg, 413. 
 
 Parker v. Railway Co., 515. 
 
 Parker v. Smith, 84. 
 
 Parker v. Union Ice & Salt Co., 307. 
 
 Parmelee v. Lowitz, 418. 
 
 Pavmelee v. McNulty, 418. 
 
 Parrott v. Byers, 351. 
 
 Parry v. Squire, 205. 
 
 Parshall v. Eggert, 373. 
 
 Parsons v. Hardy, 469, 496. 
 
 Parsons v. Monteith, 511. 
 
 Pate V. Hoffman, 297. 
 
 Patry v. Railway Co., 648. 
 
 Pattison v. Culton et al., 590. 
 
 Pennington v. Railway Co., 645. 
 
 Pennsylvania Co. v. Holderman, 696. 
 
 Pennsylvania Canal Go. v. Burd, 437. 
 
 Pennsylvania Ry. Co. v. American 
 Oil Works, 553, 591. 
 
xlviii 
 
 TABLE OF CASES. 
 
 References are to sections. 
 
 PennsylTania Ry. Co. v. Anderson, 
 
 637. 
 Pennsylvania Ry. Co. v. Kilgore, 656. 
 Pennsylvania Ry. Co. v. Marion, 65.5. 
 Pennsylvania Ry. Co. v. Roy, 633. 
 Pennsylvania Ry. Co. v. Stern &Spei- 
 
 gle, 563. 
 Pennsylvania Ry. Co. v. Sohwarzan- 
 
 berger, 530, 530. 
 Pennsylvania, etc. Ry. Co. v. Bray, 
 
 634. 
 Pennsylvania, etc. Ry. Co. v. Meriam, 
 
 639. 
 Pennsylvania Steel Co. v. Railway 
 
 Co., 591. 
 Pearson v. Duane, 610. 
 Pease v. Railway Co., 646. 
 Peck v. Railway Co., 543, 613. 
 Peet V. Railway Co., 714. 
 Pender v. Robins, 405. 
 Penny v. Lynn, 235. 
 People V. Elmore, 251. 
 People v. Gallagher, 613. 
 People V. Jones, 333. 
 People V. King, 613. 
 People V. Robinson, 350. 
 People V. Utica Cement Co., 469 
 Peoria, etc. Co. v. Mclntyre, 58. 
 Peoria, etc. Co. v. Reynolds, 731. 
 Pereira v. Railway Co., 463. 
 Perkins v. Railway Co., 664. 
 Perre v. Castro, 398. 
 Perry v. Thompson, 509. 
 Pershing v. Railway Co., 632, 731. 
 Peters v. Elliot, 3.j4, 356. 
 Peters v. Jamestown Bridge Co., 271. 
 Pettigrew v. Barnham, 360. 
 Petty V. Overall, 393. 
 Peugh V. Davis, 253, 381. 
 Philadelphia v. Quigley, 706. 
 Philadelphia v. Rice, 634. 
 Philadelphia, etc. Ry. Co. v. Derby, 
 
 .599, 613. 
 Philadelphia, etc. Ry. Co. v. Holflioh, 
 
 644. 
 Philadelphia Traction Co. v. Orbann, 
 
 597. 
 Philler v. Jewett. 334. 
 Phillips v. Earle, 450. 
 Phcenix Ins. Co. v. Church, 344. 
 
 Phoenix Ins. Co. v. Erie &W. Transp. 
 
 Co., 512. 
 Pickens v. Diecker, 208. 
 Pickens v. Railway Co., 646. 
 Pickford v. Grand Junctions Ry. Co., 
 
 444, 543. 
 Piedmont Mfg. Co. v. Columbia River 
 
 Co., 403, 409. 
 Pierce v. Faunce, 270. 
 Pierce v. Railway Co., 411. 
 Pierce v. Robinson. 253. 
 Pierce v. Schenck, 141. 
 Pierce v. Southern Pac. Ry. Co., 510. 
 Pierson v. Duane, 612. 
 Pingree v. Railway Co., 493. 
 Pinkerton v. Woodard, 837, 353. 373. 
 Piper V. Manny, 349, 360. 
 Pittsburg, etc. Co. v. Caldwell, 653. 
 Pittsburg, etc. Co. v. Morton, 709. 
 Pittsburg Ry. @o. v. Barrett, 183. 
 Plaister v. Navigation Co., 472. 
 Piatt V. Hibbard, 206. 
 Plessy V. Ferguson, 613. 
 Pollard V. Vinton, 253, 259, 439, 463. 
 PoUect V. Landis, 387. 
 Pomeroy v. Smith, 378. 
 Ponce V. McElvey, 287. 
 Pontiac Nat. Bank v. Lungan, 24. 
 Pool v. Railway Co., 634. 
 Popham V. Barnard. 517. 
 Porter v. Chicago, etc. Ry. Co., 437. 
 Porter v. Railway Co., 656. 
 Porterfield v. Humphreys. 412. 
 Potter V. Thompson, 814. 
 Potts V. Plaisted, 398. 
 Potts V. Railway Co., 558. 
 Powell V. Robinson, 63. 
 Powers V. Mitchell, 193. 
 Powers V. Railway Co., 602. 
 Pratt V. Railway Co., 489. 
 Prescott V. Hull, 241. 
 Preston v. Prathers, 94. 
 Preston v. Witherspoon, 178. 
 Price V. Dime Savings Bank, 233. 
 Price V. Hartshorn, 538. 
 Price V. Railway Co., 561, 644. 
 Price V. Powell, •■)74, 696. 
 Proctor V. Nicholson, 375, 378. 
 Providence Coal Co. v. Providence, 
 
 etc. Ry. Co., 530. 
 
TABLE OF CASES. 
 
 xlix 
 
 References are to sections. 
 
 Pullman Car Co. v. Adams, 641. 
 
 PuHraan Car Co. v. Gavin, 684. 
 
 Pullman Car Co. v. Gaylord, 643. 
 
 Pullman Car Co. v. Lowe, 333, 337, 
 643. 
 
 Pullman Car Co. v. Martin, 684. 
 
 Pullman Car Co. v. Mathews, 684. 
 
 Pullman Car Co. v. Pollock. 641. 
 
 Pullman Car Co. v. Smith, 333, 641. 
 
 Purvis V. Coleman. 349. 359, 686. 
 
 Putnam v. Railway Co., 596. 
 
 Quarman v. Burnett, 708. 
 
 Quigley v. Railway Co., 647. 
 
 Quimby v. Railway Co., 661, 664 
 
 Racho V. Detroit, 716. 
 
 Ragan v. Aiken, 550. 
 
 Railway Co. v. Axley, 665. 
 
 Railway Co. v. Berry, 671, 677 
 
 Railway Co. v. Barrett, 515. 
 
 Railway Co. v. Bausch, 664. 
 
 Railway Co. v. Beebe, 664. 
 
 Railway Co. v. Beggs, 664. 
 
 Railway Co. y. Berchfield. 710. 
 
 Railway Co. v. Bowler, etc. Co., 673. 
 
 Railway Co. v. Boyce, 673. 
 
 Railway Co. v. Boyd. 515. 
 
 Railway Co. v. Brewing Co., 536. 
 
 Railway Co. v. BrookSj 604. 
 
 Railway Co. v. Campbell, 515. 
 
 Railway Co. v. Capps, 674. 
 
 Railway Co. v. Carter, 515. 
 
 Railway Co. v. Central Stockyards, 
 171, 172. 
 
 Railway Co. v. Cobb, 713. 
 
 Railway Co. v. Coggins, 605. 
 
 Railway Co. v. Conklin, 675. 
 
 Railway Co. v. Cox, 655. 
 
 Railway Co. v. Cravens. 515. 
 
 Railway Co. v. Curtis, 471. 
 
 Railway Co. v. Diokerson, 665. 
 
 Railway Co. v. Ellison, 631. 
 
 Railway Co. v. Emminger, 724. 
 
 Railway Co. v. Fire Ass'n of Phila- 
 delphia, 479. 
 
 Railway Co. v. Fraloff, 523, 668, 672, 
 677. 
 
 Railway Co. v. Frame, 714. 
 
 Railway Co. v. Gage, 543. 
 
 Railway Co. v. Gilbert, 514. 
 
 Railway Co. v. Hale, 494 
 
 Railway Co. v. Hamilton, 489. 
 Railway Co. v. Hawkins, 489. 
 Railway Co. v. Hawks, 662, 664 
 Railway Co. v. Henderson, 664 
 Railway Co. v. Huntly, 621. 
 Railway Co. v. Ives, 655. 
 Railway Co. v. Jenkins, 183. 
 Railway Co. v. Johnson, 714 
 Railway Co. v. Juntzer, 500. 
 Railway Co. v. Jury, 515. 
 Railway Co. v. Keefer. 664 
 Railway Co. v. Kinchen, 569. 
 Railway Co. v. Kirkwood, 533, 536. 
 Railway Co. v. Lockhart, 714 
 Railway Co. v. Lockwood,41,509,515. 
 Railway Co. v. Lowell, 605. 
 Railway Co. v. Lyon, 688. 
 Railway Co. v. MoCool, 183. 
 Railway Co. v. M'Gahey, 672, 688. 
 Railway Co. v. McLaughlin, 660. 
 Railway Co. v. Manufacturing Co., 
 
 515, 522, 528. 
 Railway Co. v. Manchester Mills, 512. 
 Railway Co. v. Mehlsack, 604. 
 Railway Co. v. Miller, 655, 711. 
 Railway Co. v. Mudford, 714 
 Railway Co. v. Pollard, 633. 
 Railway Co. v. Pratt, 457, 510, 528, 
 
 531, 536. 
 Railway Co. v. Quigley, 706. 
 Railway Co. v. Read, 664. 
 Railway Co. v. Reynolds, 515. 
 Railway Co. v. Scott, 183. 
 Railway Co. v. Shepherd, 673, 674 
 Railway Co. v. Stacey, 616. 
 Railway Co. v. State, 672. 
 Railway Co. v. Stevens, 664, 676. 
 Railway Co. v. Stockard, 534. 
 Railway Co. v. Stockyard Co., 676. 
 Railway Co. v. Swift, 669, 672. 
 Railway Co. v. Thompson, 581, 
 Railway Co. v. Walrath, 731. 
 Railway Co. v. Williams, 721. 
 Ramiug v. Metropolitan St. Ry. Co., 
 
 606. 
 Rankin v. Shepherdson, 127, 128. 
 Ransome v. Eastern Counties Ry. Co., 
 
 or,o. 
 Raphael v. Pickford, 574. 
 Rathbun v. Steamboat Co.. 569. 
 
TABLE OF CASES. 
 
 References are to sections. 
 
 Eawls V. Deshler, 463. 
 
 Rawson v. Holland, 534. 
 
 Ray T. Bank of Kentucky, 198. 
 
 Ray V. Ross, 291. 
 
 Raynor v. Brewing, 724. 
 
 Read v. Amedon, 365. 
 
 Read v. Spaulding, 421, 471. 
 
 Readhead v. Railway Co., 625, 626. 
 
 Reddington v. Traction Co., 654. 
 
 Redmond v. Liverpool S. S. Co., 575, 
 
 Reg. V. Hill, 171. 
 
 Reg. V. Reymer, 348. 
 
 Reed v. Wilmington S. S. Co., 468. 
 
 Reeves v. Plough, 316. 
 
 Reeves v. Scully, 270. 
 
 Reiclienbach v. McKee, 278. 
 
 Reinstine v. Watts, 59. 
 
 Rex V. Ivans, 343, 315. 
 
 Reynolds v. Railway Co.. 588, 589, 61.5. 
 
 Rhinelander v. Barrow, 318. 
 
 Rice V. Boston R. Corp., 591. 
 
 Rice V. Boston Ry. Co., 183. 
 
 Rice V. Dwight Mfg. Co., 516. 
 
 Rice V. Nixon, 178. 
 
 Rice V. Railway Co., 18.3, .509, 581. 
 
 Rice V. Stone, 226. 
 
 Richmond v. Jeffer.son, 632. 
 
 Richmond v. Payne, 512. 
 
 Richmond v. Second Ave. Ry. Co., 
 
 656. 
 Richmond v. Smith, 348, 352. 
 Richmond, etc. Co. v. Scott, 656. 
 Richards v. Rice, 235. 
 Richards et al. v. Doe et al., 464. 
 Richardson v. Nathan, 2.55. 
 Richardson v. Olmstead, 175. 
 Richardson v. Wyman, 312. 
 Richardson et al. v. Goddard et al., 
 
 575. 
 Richberger v. American Ex. Co., 632. 
 Ricketts v. Railway Co.. 055, 708. 
 Rickerson v. Railway Co., 530. 
 Rider v. Union India Rubber Co., 75. 
 Riley v. Home, 464. 
 Rives v. M'Losky, 318. 
 Roberts v. Stuyvesant, 63. 
 Roberts v. Thompson, 302. 
 Robertson v. Railway Co., 640. 
 Robins & Co. v. Gray, 379, 381. 
 Robinson v. Baker, 383, 55.5. 
 
 Robinson v. Crittenden, 575. 
 Robinson v. Larrabee, 73. 74, 386. 
 Robinson v. Stafford, 300. 
 Robinson et al. v. Memphis, etc. Ry. 
 
 Co., 462. 
 Rochester v. Jones, 255. 
 Rock V. Nichols, 251. 
 Rockwell V. Proctor, 356. 
 Roderick v. Railway Co., 483. 
 Rogers ^. Grothe, 153. 
 Rogers v. Kennebec S. Co., 596, 661, 
 
 664. 
 Rogers v. Railway Co., 064. 
 Rogers v. Stophel, 174, 201, 204. 
 Rogers v. Thomas, 586. 
 Rogers v. Weir, 63. 
 Rogers Locomotive, etc. Works v. 
 
 Railway Co, 449. 
 Rome Ry. Co. v. Sullivan-Cabot Co., 
 
 530. 
 Rommel v. Schambacher, 632. 
 Root V. Long Island Ry. Co., 550. 
 Root V. Railway Co., 641. 
 Root V. Sleeping Car Co., 641, 685. 
 Root V. Great Western Ry. Co., 524, 
 
 530, .531. 
 Rosa V. Broth erson, 244. 
 Rose V. Railway Co., 664. 
 Roseinan v. Railway Co., 648. 
 Rosenfield v. Express Co., 715. 
 Rosenfield v. Railway Co.. 523. 
 Rosenplaenter v. Rossele, 375. 
 Ross V. Barker, 305. 
 Ross T. Leggett, 707. 
 Ross V. Railway Co., 481. 
 Ross V. The Ship Active, 542. 
 Roulston V. McClelland, 80. 
 Rounds V. Railway Co., 633. 
 Rouser v. Railway Co., 634. 
 Rowan v. State Bank, 291. 
 Rowley V. Bigelow, 179. 553, 586. 
 Rozet V. MoClennan, 300, 307. 
 Rubens v. Ludgate Hill Steam 
 
 Transp. Co., 513. 516. 
 Rubenstein v. Cruikshanks, 358, 860. 
 Rucker v. Donovan, 591. 
 Rudell et al. v. Ogdensburg Transp. 
 
 Co., 506, 53.5. 
 Runyan v. Railway Co., 671, 676. 
 Russell V. Butterfleld, 366. 
 
TABLE OF CASES. 
 
 li 
 
 Eeferences are to sections. 
 
 Russell V. Fagan, 338. 
 
 Russell V. Southard, 353. 
 
 Russell V. Sunbury, 716. 
 
 Russell Mfg. Co. v. New Haven S. S. 
 
 Co., 538,578. 
 Ryan v. Gilmer, 617. 
 Ryder v. Hall, 464. 
 Sadowski v. Car Co., 655. 
 Sager v. Portsmouth, 457. 
 Sales V. Western Storage Co., 631. 
 Salinger v. Simmons, 433. 
 Saltus V. Everett, 259, 555. 
 Samms v. Stewart & McKibben, 399, 
 
 410. 
 Samuels v. Railway Co., 550. 
 San Antonio Nat. Bank v. Blocker, 
 
 231. 
 ,San Antonio Ry. Co. v. Branett, 513. 
 Sanford v. Railway Co., 424, 550. 
 Sandys v. Florence, 369. 
 Sargent v. Franklyn Ins. Co., 251. 
 Sargent v. Gile, 80. 
 Sattler v. Hallock, 24, 140. 
 Savannah, etc. Ry. Co. v. Bonaud, 658. 
 Savings Bank v. Thompson, 319. 
 Saward v. Stevens, 463. 
 Scaling v. Pullman Car Co., 641. 
 Scammon v. Wells, Fargo & Co., 696. 
 Scerfe v. Morgan, 163. 
 Schaller v. Railway Co., 510. 
 Scheflfer v. Corson, 367. 
 Schmidt v. Blood, 186, 206. 
 Schmidt v. Steamship Pennsylvania, 
 
 590. 
 Schneider v. Evans, 556. 
 Schnips V. Strum, 207. 
 Schoepper v. Hancock, etc. Co., 655. 
 Schooner Freeman v. Buckingham, 
 
 439. 
 Schraff v. Meyer, 255. 
 Schroyer v. Lynch, 389, 390. 
 Scofield V. Railway Co., 550. 
 Scott V. Churchill, 369. 
 Scott V. Delahunt, 162. 
 Scott V. Nat. Bank of Chester Valley, 
 
 52. 189. 
 Scott V. Pequonnock Nat. Bank, 
 
 251. 
 Scott V. Railway Co. 634. 
 Scripps V. Riley, 706. 
 
 Scripture v. Francestown Soapstone 
 
 Co., 351. 
 Sears v. Railway Co., 658. 
 Seasongood v. Railway Co., 681. 
 Seasongood v. Transportation Co., 
 
 443. 
 Second Nat. Bank v. Walbridge, 179, 
 
 264. 
 Secord v. Buffalo, etc. Co., 559. 
 Sell V. Ward, 303. 
 Sergeant v. Railway Co., 351. 
 Seway v. HoUoway, 439. 
 Sexton V. Graham, 311. 
 Seybolt v. Railway Co., 598. 
 Seymour v. Wyckoff, 189. 
 Shadford v. Ann Arbor St. Ry. Co., 
 
 203. 
 Shafer v. Gilmer, 621. 
 Shannon v. Boston, etc. Co., 596. 
 Shapley v. Abbott, 463. 
 Sharkey v. Lake Roland Ry. Co., 656. 
 Sharp V. Grey, 626. 
 Shaw V. Berry, 348, 349, 352. 
 Shaw V. Railway Co., 257, 259. 
 Sheflfer v. Willoughby, 371. 
 Sheldon v. Railway Co., 654 
 Shelton v. Merchants' Transp. Co., 
 
 452. 
 Shelton v. Railway Co., 643. 
 Shepherd v. Railway Co., 198. 
 Shepherdson v. Gary, 176. 
 Sheppard, etc. Co. v. Borroughs, 590. 
 Shewalter v. Railway Co., 531. 
 Shields v. Lozier, 298. 
 Shipman v. ^tna Ins. Co., 251. 
 Shoecraft v. Bailey, 337. 
 Shriver v. Railway Co., 536. 
 Shultz V. Wall, 359. 
 Sibley v. Aldrich, 349, 352, 357. 
 Sibley v. Quinsigamond Nat. Bank, 
 
 251. 
 Silverman v. Railway Co., 710. 
 Simons v. Railway Co., 515. 
 Simpson v. Dufour, 492. 
 Simpson v. Railway Co., 494 
 Sinclair v. Murphy, 53. 
 Singer Mfg. Co. v. Miller, 379. 
 Sinker, Davis & Co. v. Green, 234 
 Sinsheimer et al. v. Whitely, 176. 
 Sisson V, Cleveland, etc. Co., 714 
 
lii 
 
 TABLE OF CASES. 
 
 Eeferences are to sections. 
 
 Siter V. Moritz, 177. 
 
 Sleath V. Wilson, 708. 
 
 Slee V. Manhattan Co., 352. 
 
 Sleeping-Car Co. v. Deihl, 685. 
 
 Sleevin v. Morrow, 302, 316. 
 
 Sloan Y. Railroad Co., 645. 
 
 Slocum V. Fairchild. 530. 
 
 Sloman v. Railroad Co., 674. 
 
 Smiley v. Allan, 83. 
 
 Smith T. American Coal Co., 249. 
 
 Smith V. Crescent City Live Stock 
 
 Co., 350. 
 Smith V. First Nat. Bank, 52, 198. 
 Smith V. Jennings, 341. 
 Smith V. Michigan Cent. Ry. Co., 488, 
 
 489. 
 Smith V. M. H. & N. Ry. Co., 487. 
 Smith V. Missouri Pac. Ry. Co. 462. 
 Smith V. Nassau, etc. Ry. Co., 193, 674. 
 Smith V. North Carolina Ry. Co., 520. 
 Smith V. New York Cent. Ry. Co., 
 
 411, 511, 536, 597, 731. 
 Smith V. Railway Co., 470, 65.5. 
 Smith V. Seward, 691. 
 Smith V. St. Paul, etc. Ry. Co., 596. 
 Smith V. Strout, 397. 
 Smith V. Wilson, 356, 358, 860, 363. 
 Smoot V. Railway Co., 613. 
 Sneider v. Geiss, 360, 862, 363. 
 Snow et al. v. Carruth, 4.52. 
 Sonier v. Railway Co., 654. 
 Sonoma Valley Bank v. Hill. 396, 297. 
 Southard v. Railway Co.. 513. 
 Southerland v. Railway Co., 661. 
 Southern Exp. Co. v. Kaufman, 480. 
 Southern Exp. Co. v. McVeigh, 431, 
 
 .567. 
 Southern Exp. Co. v. Van Meter, 561. 
 Southern Exp. Co. v. Womack, 353, 
 
 474. 
 Southern, etc. Ry. Co. v. Sanford, 
 
 647. 
 Soutliern Ry. Co. v. Hunter, 653. 
 Southern Ry. Co. v. Wildman, 647. 
 Spaulding v. Kendrick, 344. 
 Spellman \. Rapid Transit Co., 721. 
 Spencer v. Clark, 267. 
 Spice V. Bacon. 358. 
 Spoflford V. Railway Co., 550. 
 Spooner v. Manchester, 120, 137. 
 
 Spring V. Hagar, 356. 358. 
 
 Spring v. Haskell, 710. 
 
 Sproul V. Hemmingway, 414. 
 
 Spurgeon v. Collier, 253. 
 
 Squire v. Western Union Telegraph 
 
 Co., 512. 
 Squire et al. v. Railway Co., 485, 512, 
 
 516. 
 Stager v. Railway Co., 655. 
 Stanley v. Bircher, 369. 
 Stanton v. Eager, 179. 
 Stanton v. Leland, 372. 
 Starrett v. Barber, 291. 
 Staub V. Kendrick, 671, 682. 
 State V. Bryant, 176. 
 State V. Cowdrey, 34. 
 State V. Prew, 438. 
 State V. Ferris, 250. 
 State V. Goss. 444. 
 State V. Hungerford, 634. 
 State V. Lewis, 558. 
 State V. Moore, 353. 
 State V. Morse, 213. 
 State V. Overton, 612, 676. 
 State V. Peck, 558. 
 State V. Railway Co., 550, 600. 
 State V. Stevenson, 212. 
 State v. Stockman, 34. 
 State V. Washburn, 34. 
 State ex rel. v. Railway Co., 446. 
 State Ins. Co. v. Sax, 349. 
 State o£ Nevada ^. Pettineli, 350. 
 Steamboat Lynx v. King, 503. 
 Steamboat New World v. King, 198, 
 
 411, 633. 
 Stearn.* v. Bates, 287. 
 Stedman v. Weiskittle, 305. 
 Steel V. Flagg, 505. 
 Steeper v. McKee, 313. 
 Steers v. Liverpool S. S. Co., 306, 512,. 
 
 523. 
 Steinman v. Wilkins, 163. 
 Steinway v. Railway Co., 457, 624. 
 Stephens v. Vaughan, 63. 
 Sterns v. Marsh, 390, 300. 804. 
 Stevens v. Railway Co., 193, 383. 
 Stevenson v. Hart et al., 563. 
 Stevenson v. West Seattle, eta Co.,- 
 
 613. 
 Stewart v. Davis, 126. 
 
TACLE OF CASES. 
 
 liii 
 
 References are to sections. 
 
 Stewart v. Lansing, 224. 
 
 Stewart v. Lehigh Valley Ry. Co., 
 550. 
 
 Stewart v. Phoenix Ins. Co., 178. 
 
 Stewart v. Railway Co., 513. 
 
 Stewart v. Stone, 140. 
 
 Stewart, etc. Co. v. Gracy & Bro., 
 439. 
 
 Stickney et al. v. Allen, 712. 
 
 Stimpson v. Railway Co., 672, 673. 
 
 St. Louis V. J'ire Ass'n of Philadel- 
 phia, 479. 
 
 St. Louis V. Greenthal, 632. 
 
 St. Louis V. Kilpatrick, 647. 
 
 St. Louis V. Myer, 632. 
 
 St. Louis, etc. Co. v. Hurst, 517. 
 
 St. Louis, etc. Co. v. Insurance Co., 
 430, 462. 
 
 St. Louis, etc. Ry. Co. v. Adams, 462. 
 
 St. Louis, etc. Ry. Co. v. Cantrell. 
 655. 
 
 St. Louis, etc. Ry. Co. v. Knight, 182, 
 430. 
 
 St. Louis, I. M. etc. Ry. Co. v. Com- 
 mercial Union Ins. Co., 439. 
 
 Stock V. Harris, 391. 
 
 Stockyard Co. v. Railway Co., 449. 
 
 Stoddard Mfg. Co. v. Huntly, 73. 
 
 Stokes V. Saltonstall. 721. 
 
 Stollenwerck v. Thacher, 259, 563. 
 
 Stone V. Lidderdale, 228. 
 
 Stone V. Railway Co., 646. 
 
 Story V. Krewson, 298. 
 
 Strause V. Hotel Co., 338. 
 
 Streeper v. McKee, 312. 
 
 Strong V. Adams, 540. 
 
 Strong V. Certain Quantity of Wheat, 
 534. 
 
 Strong V. Grand Trunk Ry. Co., 464. 
 
 Strong V. Stewart, 252. 
 
 Strong V. Worden, 293. 
 
 Strum V. Baker, 59. 
 
 Sturgeon v. Railway Co., 489. 
 
 Suia V. Omel, 342. 
 
 Sullivan v. India Rubber Mfg. Co., 
 600. 
 
 Sumner V. Hamlet, 240. 
 
 Sunbolf V. Alford. 353, 375. 
 
 Suydam v. Smith, 179. 
 
 Swan V. Bournes, 375, 376. 
 
 Swann v. Smith, 358. 
 
 Sweet V. Barne, 421, 696. 
 
 Swift V. Mosley, 80. 
 
 Swift V. Tyson, 244. 
 
 Sykes v. People, 212. 
 
 Syracuse, etc. Co. v. Railway Co., 
 
 724. 
 Taggard v. Curtenious, 307. 
 Talbott V. Railway Co., 708. 
 Talcott V. Raifway Co., 674. 
 Tannahill v. Tuttle, 373. 
 Tarbell v. Sturtevant, 317, 
 Taylor v. Chester, 229. 
 Taylor v. Downey, 364 
 Taylor v. Grank Trunk Ry. Co., 623. 
 Taylor v. Luther, 253. 
 Taylor v. Monnot, 349. 
 Taylor v. Page, 270. 
 Taylor v. Turner, 308. 
 Taylor v. Tyndall, 554. 
 Tembler v. Palestine Ice Co., 278. 
 Tenbroeck -v. Wells, Fargo & Co., 
 
 368, 369. 
 Tenhopen v. Walker, 706. 
 Terre Haute Ry. Co. v. Sherwood, 
 
 510. 
 Texas, etc. Ry. Co. v. Dick, 605. 
 Texas, etc. Ry. Co. v. Bond, 646. 
 Texas, etc. Ry. Co. v. Fambrough, 489. 
 Texas, etc. Ry. Co. v. Hamilton, 625. 
 Texas, etc. Rj'. Co. v. Smith, 600. 
 Texas, etc. Ry. Co. v. Williams, 632. 
 Texas Banking Co. v. Turnley, 235. 
 Textor v. Orr, 238. 
 Thatcher v. Pray, 344 
 The Amelie, 542. 
 The Boskenna Bay, 577. 
 The Burlington, 414 
 The Caledonia, 519. 
 The Civilta, 414 
 The David & Caroline, 444 
 The Delaware, 439. 
 The Edwin, 462. 
 The Ethel, 464 
 The Gazelle, 546. 
 The Granite State, 163. 
 The Gratitudine, 542. 
 The Harriman, 504 
 The Huntress, 480. 
 The J. P. Donaldson, 414 
 
liv 
 
 TABLE OF CASES. 
 
 References are to sections. 
 
 The Julia Blake, 543. 
 
 The Keokuk, 463. 
 
 The Lady Franklin, 439, 463, 464. 
 
 The Lady Pike, 413. 
 
 The Loon, 463. 
 
 The L. P. Dayton, 414. 
 
 The Majestic, 469. 
 
 The Mary Bradford, 464. 
 
 The Niagara, 413. 
 
 The Nitro-Glycerine Case. 476. 
 
 The Northern Belle, 457, 473. 
 
 The Onward, 543. 
 
 The Packet, 543. 
 
 The Prize Cases, 474. 
 
 The Propellor Commerce, 413. 
 
 The Russell Mfg. Co. v. The New 
 
 Haven S. S. Co., 578. 
 The Schooner Emma Johnston, 413. 
 The Schooner Freeman, 463. 
 The Schooner Reeside, 413. 
 The Scio, 163. 
 The St. Joseph, 163. 
 The Starlight. 163. 
 The Success, 537. 
 The Transp. Line v. Hope, 414. 
 The Webb, 414. 
 The Wellington, 463. 
 The Westchester, etc. Ry. Co. v. Miles, 
 
 613, 613. 
 The Willie v. Sandhovel, 430. 
 Thickstone v. Howard, 353. 
 Tl]omas v. Boston Ry. Co., 424, 581, 
 
 583. 
 Thomas v. Day, 193. 
 Thomas v. Snyder, 545. 
 Thomas, etc. Co. v. Railway Co., 710. 
 Thompson v. Dill, 393. 
 Thompson v. Dominy, 179. 
 Thompson v. Fargo, 696. 
 Thompson v. Onley, 343. 
 Thompson v. Patrick, 390. 
 Thompson v. Thompson, 177. 
 Thompson v. Trusdale, 633. 
 Thompson v. Railway Co., 698. 
 Thorington v. Smith, 474. 
 Thorn v. Bank, 393. 
 Tibby v. Railway Co., 660. 
 Tiederaan v. Knox. 3.54. 
 Tierber v. Burrows, 360. 
 Tierney v. Railway Co., 444, 501. 
 
 Tiffant v. St. Johns, 559. 
 Titus V. Railway Co., 303. 
 Toledo, etc. Co. v. Beggs, 640. 
 Toledo, etc. Co. v. Brooks, 640. 
 Toledo, etc. Co. v. Gilvin, 453. 
 Toledo, etc. Co. v. Crush, 639. 
 Toledo, etc. Co. t. Hamilton, 489. 
 Toledo, etc. Co. v. Marsh, 647. 
 Toledo, etc. Co. v. Pence, 609. 
 Toledo, etc. Co. v. Railway Co., 663, 
 Toledo, etc. Co. v. Roberts, 456. 
 Toledo, etc. Co. v. Thompson, 489. 
 Tom Boy Gold Mine Co. v. Green, 294. 
 Tooke V. Newman, 317. 
 Torry v. Bank of Orleans, 305. 
 Toub V. Schmidt, 338. 
 Towne v. Wiley, 14. 
 Towson V. Havre de Grace Bank, 338, 
 
 365. 
 Toy V. Long Island Co.. 516. 
 Transit Co. v. Venable, 600. 
 Transportation Co. v. Dater, 515. 
 Transportation Co. v. Hope, 414. 
 Transportation Co. v. Leysor, 515. 
 Transportation Co. v. Newhall, 530. 
 Travis v. Thompson, 544. 
 Tread well v. Davis, 378. 
 Treadwell v. Whittier, 633, 637. 
 Trevor v. Railway Co., 431. 
 Trezona v. Railway Co., 637, 644. 
 Trimble v. Railway Co., 468, 674,676. 
 Tripp V. Brownell, 336. 
 Trowbridge v. Chapiu, 437. 
 Trumbull v. Erickson, 681. 
 Tucker v. New Hampshire Sav. 
 
 Bank, 343. 
 Tuff v. Warman, 651. 
 Tuller V. Talbot, 631. 
 Turney v. Wilson. 410. 
 Turrell v. Crawley, 375. 
 Tuttle V. Robinson, 338. 
 Tuxworth V. Moore, 176, 354, 377. 
 Twomley v. Central Park Ry. Co., 
 
 657. 
 Tyson v. Ewing, 706. 
 Udell v. Street Ry. Co., 607. 
 Ulrich V. Railway Co., 661. 
 Underbill v. Railway Co., 654. 
 Union Express Co. v. Graham, 443. 
 Union Express Co. v. Hepner, 433. 
 
TABLE OF CASES. 
 
 Iv 
 
 References are to sections. 
 
 Union Express Co. v. Ivey, 597. 
 Union Pac. By. Co. v. Nichols, 597, 
 
 640. 
 Union Pac. Ry. Co. v. United States, 
 
 550. 
 Union Trust Co. v. Eigdon, 313, 318. 
 United States v. Barney, 375. 
 United States v. Power, 399. 
 United States v. Washington, 618. 
 United States Exp. Co. v. Backman, 
 
 421. 
 United States Kxp. Co. v. Council, 
 
 510. 
 United States Exp. Co. v. Hutchins, 
 
 561. 
 United States Exp. Co. v. Keef er, 569. 
 United States Exp.- Co. v. Kinchin, 
 
 695. 
 United States Exp. Co. v. Rush et al., 
 
 530. 
 Upham V. Detroit, etc. Co., 608. 
 Van Ballen y. Dean, 539. 
 Van Blarcom v. The Broadway Bank, 
 
 377. 
 Van Buren v. Olmstead, 852. 
 Van Buskirk v. Roberts, 658. 
 Vance v. Throckmorton, 349, 353. 
 Vandewater v. Mills, 468. 
 Van Dusen v. Railway Co., 645. 
 Van Eman v. Stanchfield, 387. 
 Van Hooser v. Corey, 386. 
 Van Horn v. Kermit, 686. 
 Van Mater v. Ely, 313. 
 Van Riper v. Baldwin, 842. 
 Van Santvoord v. St. John, 530. 
 Vaas V. Riddick, 558. 
 Verner v. Sweitzer, 410, 431, 423. 
 Vernor v. Bethell, 258. 
 Vickers v. Battershall et al., 281. 
 Vicksburg v. Ragsdale, 495, 714. 
 Vigo Agrl. Society v. Brumflel, 97. 
 Vincent v. Cornell, 133. 
 Vinton v. Baldwin, 558. 
 Vinton v. Middlesex Ry. Co., 613. 
 Virginia Cent. Ry. Co. v. Sawyer, 638. 
 Voight V. Railway Co., 660. 
 Wabash, etc. Ry. Co. v. Brown, 511. 
 Wabash, etc. Ry. Co. v. Harris, 530. 
 Wabash, etc. Ry. Co. v. Jaggerman, 
 
 530. 
 
 Wabash, etc. Ry. Co. v. Peyton, 509. 
 
 Wade V. Butcher, etc. Co., 426. 
 
 Wagner v. Railway Co., 602. 
 
 Waite V. Gilbert, 714. 
 
 Walcott V. Keith, 74, 238. 
 
 Wald V. Railway Co., 469, 471, 649, 
 
 689. 
 Walden v. Finch, 204. 
 Walker v. Baxter, 312. 
 Walker v. Detroit Transit Ry. Co., 
 
 252. 
 Walker v. Jackson, 416. 
 Walker v. Midland Ry. Co., 369. 
 Walker v. Sharpe, 338. 
 Walker v. Vicksburg Ry. Co., 656. 
 Walker v. Walker, 253. 
 Wallace v. Finnagan, 297. 
 Walling V. Potter, 334. 
 Walsh V. Blakely, 590. 
 Walsh V. Porterfield, 356, 359, 363. 
 Walter v. Ross, 590. 
 Wanzer v. Carey. 371. 
 Ward V. Elkins, 709. 
 Ward V. Railway Co., 513. 
 Ward's Cent. etc. Co. v. Elkins, 456. 
 Ware v. Gay, 731. 
 Warfield v. Railway Co., 644. 
 Waring v. Indemnity Ins. Co., 541. 
 Warner v. Railway Co., 605, 679. 
 Warner v. Fourth Nat. Bank, 243. 
 Warren v. Railway Co., 596, 634. 
 M^ashington, etc. Ry. Co. v. Hickey, 
 
 657. 
 Watson V. Cross, 343, 375. 
 Watson V. Hawkins, 271. 
 Watson V. Louisville, elc. Ry. Co., 633. 
 Watson V. Railway Co., 439, 656. 
 Watson V. Watson, 707. 
 Waters v. Monarch Assurance Co., 
 
 177. 
 Waters v. Simpson, 233. 
 Watts V. B. & O. Canal Co., 437. 
 Watts V. Railway Co., 183. 
 Way V. Chicago, etc. Ry. Co., 604,640. 
 Weaver v. Barden, 344. 
 Weaver v. Poyer, 189. 
 Webb V. Rice, 253. 
 Weber v. Railway Co., 647, 655. 
 Webster v. Railway Co., 601. 
 Weed V. Barney, 570. 
 
Ivi 
 
 TABLE OF CASES. 
 
 References are to sections. 
 
 AVeed v. Railroad Co., 693. 
 
 Weeks v. Goode, 559. 
 
 "Weeks v. McNulty, 370. 
 
 Wehmann v. Railway Co., 513. 
 
 Weiland v. Kregnick, 24. 
 
 Weiland v. Sunwall, 24. 
 
 Welch V. Boston, etc. Ry. Co., 575. 
 
 W^elch V. Railway Co., 509, 599. 
 
 Welch V. Ware. 706. 
 
 Wells V. Oregon Ry. Co., 563. 
 
 Wells V. Railway Co., 509, 561, 664. 
 
 Wells V. Steam Navigation Co., 349. 
 
 Wells V. Thomas, 544. 
 
 Wells V. Thornton, 63. 
 
 Wells T. Wells, 307. 
 
 Wentworth v. Day, 71. 
 
 Wentworth v. McDufBe, 80. 
 
 Wescott V. Fargo, 309. 
 
 Wessenger v. Taylor, 354. 
 
 West V. Bank of Rutland, 313. 
 
 West V. Grary, 273. 
 
 Westchester v. Miles. 613, 613. 
 
 Westchester, etc. Ry. Co. v. McElwee, 
 574. 
 
 West Chicago, etc. Ry. Co. v. McNul- 
 ty, 631. 
 
 Western, etc. Ry. Co. v. Exposition 
 Cotton Mills, 510. 
 
 Western Ry. Co. v. Cotton Mills, 433. 
 
 Western Transp. Co. v. Hoyt, 544. 
 
 Western Transp. Co. v. Newhall, 482. 
 
 "Western Union Ry. Co. ^. Wagner, 
 179. 
 
 Wheeler v. Newbould, 303, 303. 
 
 Wheeler v. Railway Co., 609. 
 
 Wheeler, etc. Ry. Co. v. Coots, 590. 
 
 Whelen's Ex'r v. Kinsley's Adm'r, 
 
 ':«o. 
 
 Whicher v. Railway Co., 641. 
 Whipple V. Thayer, 354. 
 Whitaker v. Clark, 360. 
 Wliitaker v. Sumner, 176, 240, 277, 
 
 286, 2M7, 296. 
 Wiiitney v. Peay, 285. 
 Whitney v. Railway Co., 641. 
 "Whitney v. Tibbets, 340. 
 White V. Basoom, 399. 
 Whits V. Madison, 178. 
 White V. Steam-tug Mary Ann, 414 
 White V. Webb, 540. 
 
 White V. Winnisimmet Co.. 416. 
 White Mts. Ry. Co. v. Bay State Iron 
 
 Co., 286, 326. 
 White's Bank v. Myles, 233. 
 Whitfield V. La Lispencer. 390. 
 Whitehead v. Railway Co., 602. 
 Whitnell v. Brigham, 397, 313. 
 Wightman v. Chicago, etc. Ry. Co., 
 
 634. 
 Wilcox V. Fairhaven Bank, 236. 
 Wilder v. Railway Co., 454. 
 Wilkes et al. v. Ferris, 278. 
 Wilkins v. Earle, 360. 
 Wilkinson v. Jeffers, 317. 
 Willard v. Bridge, 179. 
 Willet V. Rich, 203. 
 Willey V. Allegheny City, 204 
 Williams v. Allsup, 163. 
 Williams v. City. 734 
 Williams v. Gillespie, 338. 
 Williams v. Little, 243. 
 Williams v. Moore, 363. 
 Willis V. Railway Co., 509. 
 Willis V. Traction Co., 734 
 Willoughby v. Horridge, 416. 
 Wilmington, etc. Ry. Co. v. Kitohin, 
 
 558. 
 Wilsey v. Railway Co., 637. 
 Wilson V, Britt, 41. 
 Wilson V. Gayson, 71. 
 Wilson V. Halpin, 393. 
 Wilson V. Hamilton, 497. 
 Wilson V. Jones, 177. 
 Wilson V. Little, 324, 246. 
 Wilson V. Martin, 161. 
 Wilson V. Missouri Pac. Ry. Co., 504. 
 Wilson V. Railway Co., 430, 431, 673, 
 
 731. 
 Wing V. Railway Co., 457. 
 Wing V. Sleeping Car Co., 641. 
 Winslow V. Railway Co., 568, 689. 
 Winter v. Coit, 559. 
 Wintermute v. Clark, 333, 334 
 Winthrop Savings Bank v. Jackson, 
 
 292, 300. 
 Wise V. Railway Co., 633. 
 Witbeck v. Holland, 565, 574 
 Witbeok v. Schuyler, 438. 
 Witham v. Lee, 201. 
 Witzler v. Collins, 439, 463. 
 
TABLE OF CASES. 
 
 Ivii 
 
 Eeferences are to sections. 
 
 Wockey v. Smith, 34. 
 Wolf V. American Exp. Co., 471. 
 Wood V. Matiievrs, 318. 
 Wood V. Railway Co., 611, 615. 
 Woodman v. Hubbard, 127. 
 Woodman v. Nottingham, 58. 
 Woodruff V. Painter. 121. 
 Woodruff Sleeping-Car Co. v. Deihl, 
 
 333, 641. 
 Woo sey v. Railway Co., 603. 
 Wooster v. Tarr, 545. 
 Worcester Co. Bank v. Dorchester & 
 
 Milton Bank, 244. 
 Worcester Nat. Bank v. Cheeney, 343. 
 Worthington v. Tormey, 823. 
 Worton V. Railway Co., 645. 
 Wright V. Bates, 252. 
 Wright V. Caldwell, 433. 
 Wright V. Sherman, 168, 165. 
 
 Wycoff V. Queen's County Ferry Co., 
 
 416. 
 Wycoff V. Southern H. Co., 379, 38a 
 Wynne v. Railway Co., 734. 
 Yearsley v. Gray, 163. 
 Yeatman v. Savings Inst., 285. 
 Yenni v. McNames, 176. 
 Yeomans v. Navigation Co., 597. 
 York V. Grindstone, 388. 
 York Co. V. Illinois Cent. Ry. Co., 513, 
 
 522, 555. 
 York Co. V. Railway Co., 435, 518. 
 Yorke v. Grenaugh, 555. 
 Young V. Kimball, 163, 375, 539. 
 Young V. Railway Co., 487. 
 Zimpleman v. Veeder, 318. 
 Zinn V. Steamship Co., 570, 574. 
 Zone V. Hannah, 177. 
 Zouch V. Railway Co., 513. 
 
PART FIRST 
 
 ORDINARY BAILMENTS 
 
 CHAPTEE I. 
 
 THE RELATION. 
 
 9. 
 
 10. 
 11. 
 12. 
 13. 
 
 14. 
 
 Of the history and origin. 
 
 Definition. 
 
 Judge Story's definition 
 
 and criticism. 
 
 Chancellor Kent's definition 
 and criticism. 
 
 Judge Story sustained. 
 
 Purpose of the bailment may ne- 
 cessitate a change in condi- 
 tion. 
 
 A further exception as to 
 
 delivery. 
 
 The Roman mutuum. 
 
 Grain stored in elevators. 
 
 Flouring-mills. 
 
 The parties to a bailment. 
 
 Who may be bailor or bailea 
 
 Competency of parties. 
 
 These disabilities a shield but 
 not a sword. 
 
 §15. 
 
 An agent may create the rela- 
 tion. 
 
 16. Corporations. 
 
 17. Some very common examples 
 
 of bailments. 
 
 18. The kind of property that may 
 
 be the subject of bailment. 
 
 19. Delivery and acceptance. 
 
 20. Title of the bailor. 
 
 21. Bailor may sell or incumber 
 
 propei'ty — Title of bailee. 
 Bailor must exercise good 
 
 faith — Must not expose 
 
 bailee to danger. 
 Bailment or sale. 
 Commingling of grain on 
 
 storage. 
 A bailment, a sale, or a gift — 
 
 How determined- 
 
 23. 
 
 23. 
 24. 
 
 25. 
 
 § 1 . Of the history and origin . — Law is a development. 
 From the dawn of civilization it has been recognized, its prin- 
 ciples discussed, defended and applied. From the earliest rec- 
 ognition of individual property rights the law of bailments 
 commenced its development and has ever since occupied an im- 
 portant place in the municipal law. The Komans wrote upon 
 it, and gave to us an important and clear analysis of its princi- 
 ples which has been adopted by every author and recognized 
 by every court. The common law of England, from its earliest 
 history, from necessity gave to the law of bailments an im- 
 portant place, for it deals with almost every branch of busi- 
 
 1 
 
gs; 2, 3.1 OEDINAEY BAILMENTS. [PAET I. 
 
 ness where personal property is involved. Coke and Bracton 
 and the early writers of the English law gave to the subject 
 prominence, but it was never fully applied in an adjudicated 
 case until in the opinion of Chief Justice Holt in the case of 
 Coggs V. Bernard,'^ afterwards Sir "William Joaes, in an essay 
 upon the subject discussed its principles, and Sir William Black- 
 stone wrote of it in his commentaries.^ 
 
 In our own country Judge Story was the first to give to the 
 profession and the public a logical and practical discussion of 
 this subject. To him, it may be said, belongs the credit of 
 being the pioneer in the development of this important sub- 
 ject, and among the first to give to the world a reliable expo- 
 sition of the principles governing it. 
 
 § 2. Definition. — The word bailment is no doubt derived 
 from the old Norman word " bailler," which meant to deliver, 
 but it has a very much broader significance, as we shall see. 
 As to a definition of bailment the writers have very much dif- 
 fered, and have criticised and discussed the definitions given 
 somewhat freely; and it is in these criticisms that we are, per- 
 haps, able to obtain the best exposition and meaning of this 
 word as it is now applied and understood in the law. 
 
 Blackstone defines a bailment to be " a delivery of goods in 
 trust upon a contract express or implied on the part of the 
 bailee."^ And again, "a delivery of goods to another person 
 for a particular use." * 
 
 Sir William Jones gives us a somewhat different definition, 
 as follows: "A delivery of goods in trust on a contract ex- 
 pressed or implied, that the trust shall be duly executed and 
 the goods redelivered as soon as the time or use for which they 
 are bailed shall have elapsed or be performed.'" 
 
 § 3. Judge Story's definition and criticism. — Judge 
 
 Story defines a bailment to be "a delivery of a thing in trust 
 for some special object or purpose, and upon a contract, ex- 
 pressed or implied, to conform to the objects or purposes of the 
 trust." And he proceeds to criticise the definitions already 
 given for the reason that they state or -imply that there must 
 be a redelivery of the bailed property to the bailor when the 
 
 1 2 Ld. Raym. 909. i 2 Blk. Comm..375. 
 
 ■^ 2 Blk. Comm. 375. 8 Jones, Bailm. L 
 
 » 2 Blk. Comm. 453. 
 
CH. I.J THE EELA.TION. [§§ 4, 5. 
 
 purpose of the bailment is accomplished, and urges that if this 
 be the inflexible rule and a requisite, then a consignment of 
 goods to a factor is not a bailment. A factor, it will be remem- 
 bered, is one whose business is to receive and sell goods for a 
 commission, hence it would follow that no redelivery to con- 
 signor is contemplated, and if the object of the consignment 
 is carried out the goods cannot be redelivered. 
 
 Judge Story's contention is that a factor is a bailee; that a 
 consignment of goods to a factor is a bailment and subject to 
 the law of bailments. Story's criticism of Blackstone's defini- 
 tions is as follows: " It may perhaps be doubted whether (al- 
 though generally true) a faithful execution (if by faithful be 
 meant a conscientious diligence or faithfulness adequate to a 
 "due execution) or a particular use (if by use be meant an act- 
 ual right of user by the bailee) constitutes an essential or proper 
 ingredient in all cases of bailment." ^ 
 
 § 4. Chancellor Kent's definition and criticism. — Chan- 
 cellor Kent defines a bailment to be " a delivery of goods in 
 trust upon a contract expressed or implied that the trust shall 
 be duly executed and the goods restored by the bailee as soon 
 -as the purpose of the bailment shall be answered," and takes 
 occasion to criticise Judge Story's definition and criticism, 
 and contends that a factor is not a bailee, and that to apply 
 the word " bailment " to cases in which no delivery or redelivery 
 to the owner or his agent is contemplated, " is extending the 
 definition of the term beyond the ordinary acceptation of it 
 in the English law." ^ 
 
 § 5. Judge Story sustained. — After a half century 
 
 .and more of discussion by eminent authorities and jurists, 
 it may be said that the- great weight of authority in this 
 country is with the contention of Judge Story, and that the 
 modern cases unanimously hold that a factor is a bailee. 
 But while this is true, it must be borne in mind that gener- 
 ;ally, and in all cases of bailment except a few exceptional ones, 
 the law contemplates a redelivery to the bailor of the specific 
 property when the object of the bailment has been accom- 
 j)lished, or the bailed property in its changed condition, if a 
 
 1 Story on Bailm., sec. 3. • 23 Kent's Comm. 40. See note 1, 
 
 sec. 2, p. 3, Story on Bailm. 
 3 
 
§§ 6-8.] OEDINAEY BAILMENTS. [PAET I. 
 
 change in its condition is made necessary in order to carry out 
 the bailment. 
 
 § 6. Purpose of the bailment may necessitate a change in 
 condition. — It often happens that the very purpose of the bail- 
 ment indicates that the property is to be changed and is not 
 to be redelivered in its original condition; as, for example, 
 where wheat is delivered to the miller to be manufactured into 
 flour; or cloth is furnishedto the tailor to be made into clothing; 
 or material to the wagon-maker with which he is to construct a 
 wagon; in such like cases it goes without saying that the man- 
 ufactured article is to be delivered to the bailor rather than 
 the specific property bailed. 
 
 § 7. A further exception as to delivery. — Another 
 
 exception to the general rule that the. subject of the bail- 
 ment must be finally returned to the bailor is found in those 
 cases where, from the very nature of the business and the usage 
 of trade, it is understood that property of like specie and value 
 may be returned when the object of the bailment has been ac- 
 complished; as, for example, where money is deposited in a 
 bank, or is loaned to a borrower, it is not expected in such cases 
 that the very same money — the specific bank notes — will be 
 returned to the depositor or the loaner, but on the other hand 
 it is expected that the money will be used and that other money 
 of the same value and amount will be delivered to the depositor 
 or the loaner in payment. Usage, custom and public policy 
 often fix and determine the law in such cases. 
 
 § 8. The Roman mutuum. — These exceptions to the general 
 rule above noticed correspond very nearly to the " Koman 
 mutuum," which, at common law, was considered to be a sale 
 of the property. 
 
 An exposition of this is given by Gaius as follows: "This," 
 he says, "chiefly relates to things which are estimated by 
 weight, number or measure, such as money, oil, wine, corn, 
 bronze, silver and gold. We transfer our property in these on 
 condition that the receiver shall transfer back to us at a future 
 time not the same things but other things of the same nature, 
 wherefore this contract is called mutuum because thereby 
 meum becomes tuem." ^ 
 
 1 Story on Bailm. 47. 
 4 
 
OH- I-] THE EELATION. [§§ 9-12. 
 
 § 9. Grain stored in elevators.— Another exception 
 
 to the general rule requiring the subject of the bailment to be 
 returned to the bailor when the object of the bailment is ac- 
 complished is where grain is stored in elevators. This busi- 
 ness, which has grown to immense proportions in this country, 
 has of necessity wrought an exception to the general rule. 
 Thousands of bushels of grain are stored for safe-keeping for 
 hundreds of different owners ; it would be impossible, at least 
 impracticable, to keep each depositor's grain separate from the 
 others so as to return the identical deposit, and it is not ex- 
 pected; the only separation of the grain is by keeping the 
 same kind and quality in bins by itself, so the owner may have 
 returned to him grain of the same kind and quality as that 
 he deposited. 
 
 § 10. Flouring-raills. — Another exception which is 
 
 recognized is in the case of storing grain with the owner of 
 flouring or grist-mills, where the grain is kept separate only 
 by putting like kind and quality together, as in the case of the 
 elevator; the understanding being that the owners shall not 
 receive their identical grain from the mill proprietor, but grain 
 of like quality and quantity, or flour, or the mill product of 
 such grain, as the owner may desire from time to time. 
 
 Some important questions have arisen in the courts as to the 
 status of the parties in this kind of bailments. Are they 
 bailments or sales ? In case of loss who is the owner? who 
 the loser ? 
 
 § 11. Tlie parties to a bailment. — The parties to a transac- 
 tion called or defined to be a bailment are {a) the bailor, and 
 (b) the bailee, {a) The bailor is the party or person who, having 
 the property in his possession, "delivered it in trust for some 
 special object or purpose, and upon a contract expressed or im- 
 plied to conform to the object or purpose of the trust." (5) The 
 bailee is the party or person who accepts the property and the 
 trust, and continues in the possession of the same until the ob- 
 jects or purposes of the trust are carried out, or the bailment 
 is terminated. 
 
 § 12. Who may be bailor or bailee. — This answered, would 
 require mention to be made of almost .every person and kind 
 of ofiicer, or person connected with the transaction of business 
 pertaining to the use of personal property. As Professor 
 
gS 13^ 14.j OEDINAEY BAILMENTS. [PAET 1. 
 
 Schouler has said : " Such is bailments ! A division of the law 
 whose main artery ramifies into the closest transaction of our 
 daily life. Trustees, agents, factors, warehousemen, commis- 
 sion merchants, all have duties and responsibilities in the hand- 
 ling of personal property founded in its doctrines." ^ And 
 innumerable examples might be given ; for the possession of an- 
 other's personal property by any right or privilege short of 
 the transfer of the title will constitute the possessor of a bailee, 
 and render him liable as such. 
 
 § 13. Competency of parties. — As to competency of parties 
 to a bailment, it may be said, generally, that any person who 
 is competent to make a contract is competent to become a 
 party to a bailment. Such a degree of competency, however, 
 cannot alwaj's be required; for while the relation, generally 
 speaking, is one of contract, there are cases, as we shall see, 
 when the relation is created without intention on the part of 
 the bailor; as in case of finding, and unintentionally placing 
 the possession of one's property into the possession and control 
 of another; and so, while one may not be competent on ac- 
 count of infancy, drunkenness, lunacy, or anything that would 
 render one totally incompetent to enter into a contract, still 
 that one might deliver his property for custody, or any law- 
 ful purpose, into the hands of another, and create the relation 
 of bailment, and render the bailee liable for care, custody and 
 final redelivery of the same, the I'elation would not be void but 
 voidable on the part of the bailor. And so one who is incom- 
 petent to be a party to a contract may become a bailee, and 
 would not be shielded for misconduct on the plea of such in- 
 competency. 
 
 § 14. These disabilities a shield but not a sword. — While 
 an infant or married woman at common law would be wholly 
 incompetent to become a party to a contract, and would be 
 able to avoid a contract of bailment if property should be bailed 
 by thena or received as bailee, nevertheless, if property comes 
 into the possession of one thus incapacitated, the law would 
 require of them proper care to the extent, as least, that they 
 should not destroy, injure or misappropriate it. In case of 
 misappropriation the law does not proceed upon the contract, 
 
 1 Schouler on Bailm. 3. 
 
OH. I.] THE RELATION. [§§ 15-17. 
 
 but holds them liable as for a conversion of the property in an 
 action of tort. And when an infant hires a horse and carriaee 
 to drive to a certain place, and without authority tortiously 
 drives beyond that place, resulting in the death of the horse, 
 he would be held to have converted the property .^ 
 
 § 15. An agent may create the relation. — Acting within 
 the scope of his authority, an agent may create the relation for 
 his principal, and within the apparent scope of his authority 
 can no doubt bind his principal as to third parties, even though 
 he has no actual authority. It has been held, and is no doubt 
 the law, that the agent may render himself liable if he know- 
 ingly exceeds his authority in this the same as. he might in 
 other matters. The doctrine of ratification of the agent's act 
 applies in this as it does in other business transactions. Bailors 
 and bailees may act and be bound by their agents, and the gen- 
 eral doctrines applicable to the law of agency apph'^ here as 
 in other cases. Where the agent, however, acts tortiously and 
 wholly beyond and without authority, he cannot bind his prin- 
 cipal, but renders himself liable.^ 
 
 § 16. Corporations. — A corporation acting within its cor- 
 porate authority may become either a bailor or a bailee. Cor- 
 porations, from their very nature, necessarily must act through 
 their agents or officers, and where the agents and officers act 
 ultra vires they become personally liable, but cannot bind the 
 corporation. If, however, the property is received by the cor- 
 poration by reason of the unauthorized acts of its agents or 
 officers, or by reason of acts ultra vires, it cannot retain the 
 property, but is bound to deliver it over to the bailor.' 
 
 § 17. Some very common examples of bailments. — A. 
 leaves his overcoat with you in your office while he goes out 
 into the city to transact some business. A mere accommoda- 
 tion on your part. You are the bailee of A.'s overcoat, A. the 
 bailor. 
 
 A., a guest at a hotel, leaves his overcoat with the clerk or 
 porter, and receives a check for it, according to the usage of 
 the hotel. A. is the bailor, and the proprietor of the hotel is 
 the bailee. 
 
 iTowne v. "Wiley, 33 Vt. 351. 3Duncomb v. N. Y. etc. R. Co., 84 
 
 2 Foster v. Essex Bank, 17 Mass, N. Y. 190. 
 
 479. 
 
 7 
 
§?, IS, 19.] OEDINAEY BAILMENTS. [PAET I. 
 
 A. leaves his overcoat with his tailor to be repaired. A. is 
 the bailor, and the tailor is the bailee; or, A. leaves cloth 
 with the tailor, from which the tailor is to make him a suit of 
 clothes. 
 
 A. loans his overcoat, without any reward, to B., to be worn 
 and used by B. 
 
 A. deposits money with his banker. 
 
 A. leaves a box of valuable papers in a safety-deposit com- 
 pany's vault, in charge of the company. 
 
 A. consigns goods to be carried and delivered by a common 
 carrier, an express company or a railroad company; and so 
 thousands of examples might be given. 
 
 § 18. The kind of property that may be the subject of a 
 bailment. — Personal property only can be the subject of a 
 bailment; the property, however, may be incorporated person- 
 alty, as stocks, bonds, and the like, as well as corporeal per- 
 sonalty, but real estate cannot be the subject of a bailment. 
 
 If A. rents a house, or a farm, or a storehouse of B., which is 
 given into his possession under their contract or lease, the re- 
 lation of landlord and tenant is created, not that of bailor and 
 bailee. If, however, A. should take the household furniture of 
 B. for storage, either for hire or without compensation, the 
 relation of bailor and bailee would be created. The usual test 
 is, the property must be personal property, and of such a nature 
 that it can be delivered into the actual manual possession of 
 the bailee by the bailor, and, after the object of the bailment 
 has been accomplished, redelivered to the bailor. 
 
 § 19. Delivery and acceptance. — The property the subject 
 of the bailment must come to the possession of the bailee, and 
 to that end there must be some sort of delivery, eitker actual 
 or constructive. The very essence of the relation is possession, 
 and so it may be said, as a general rule, that there must be an 
 acceptance of the property on the part of the bailee; for one 
 cannot be made a bailee against his will, and must have knowl- 
 edge of the fact that be is in possession of the property. 
 
 While it is said that a bailment is a contract, and generally 
 it is so conceded to be, it is not alwaj^s so created; one may 
 come to the possession of the property by finding, or even by 
 stealing it, or it may be placed in his possession by mistake 
 and not be found by him until some time after. In all these 
 
 8 
 
OH. I.] THE EELATION. [§§ 20, 21. 
 
 cases the bailor had no intention of parting with the posses- 
 sion ; there was no mutuality or meeting of minds upon that 
 subject, but nevertheless the finder or the thief becomes a 
 bailee; he may not be bound to continue the relation, but so 
 long as he retains the possession he must care for the property, 
 and for that care, according to the circumstances governing the 
 case, he is liable to the owner or bailee. An example used by 
 many of the authors on this subject is where one, by mistake, 
 puts his purchased articles into another's wagon in the street, 
 and the owner, without any knowledge of their presence, drives 
 away with them. So long as he is ignorant of having them 
 in his possession he is under no obligation to care for them ; 
 he may lose them by the grossest of carelessness upon his part, 
 and he is not liable because he is not in any sense a bailee; but 
 the moment he discovers the parcels, and has knowledge of 
 the fact that he has them in his possession, from that moment 
 he becomes a bailee, and is legally bound to care for them, 
 and if lost under certain circumstances would be liable to the 
 owner. 
 
 §20. Title of the bailor. — Absolute title or ownership of- 
 the property by the bailor is not essential. The bailment re- 
 lation is founded upon a possessory right, and so one who has 
 a special property merely in the subject of the bailment, as the 
 right to the possession and use of the thing, he may bail the 
 property. The finder of property has the right to .the posses- 
 sion of it against all the world except the principal owner of 
 it, and so may be the bailor of the property. Even a thief 
 may make a bailment of the stolen property, and, if the owner 
 does not interfere, may recover it from the bailee, if at the 
 termination of the bailment he should refuse to deliver it back 
 to him. It is well settled that a bailee cannot dispute his bail- 
 or's title ; having received the property bailed from the bailor, 
 he cannot, while holding it as a bailee, deliver it to another 
 person. In Bursley v. Hamilton ^ it was held that an owner 
 of property, giving a receipt for it to an officer who has seized 
 it under process, could not set up title in himself, when sued by 
 the ofiicer, without first restoring the property to the officer. 
 
 §21. Bailor may sell or incumber property — Title of 
 
 bailee.— The bailee has a title only commensurate with the 
 
 115 Pick. fMass.) 40. 
 9 
 
§§ 22, 23.] OEDINAKY BAILMENTS. [PABT I, 
 
 object of the bailment; a right to the possession and use of" 
 the property, fixed and co-extensive with the contract erf bail- 
 ment; he cannot sell it or in any way incumber the property,, 
 for should he attempt to do so he would violate the very es- 
 sence and right to continue the bailment. But the bailor may,, 
 subject to the bailor's rights to carry out the bailment, sell all 
 his right, title and interest in the property or thing bailed, or 
 he may mortgage it, or in any way incumber it, and, upon no- 
 tice, the bailee would be bound to respect the rights of the 
 vendee or mortgagee. 
 
 § 21. Bailor iiiiist exercise good faith ^ — Must not expose 
 bailee to danger. — It is the duty of the bailor to exercise good' 
 faith toward the bailee by giving him notice of all the faults 
 of the thing bailed that might result in exposing the bailee to- 
 danger, and if he fails to do so, and by reason of it the bailee- 
 is injured, the bailor will be liable. As, for example, if the 
 bailor should loan a vicious horse, it is his duty to notify the 
 bailee of the fact, and if by reason of the bailor's failing to 
 give such notice the bailee should be injured, he may recover 
 damages of the bailor. 
 
 § 2o. Bailment or sale. — Both a bailment and a sale are the 
 result of contract between the parties; to accomplish either the- 
 minds of the parties must meet. It would therefore follow that,, 
 to determine whether the personal transaction is a bailment or a 
 sale, it is necessary to discover the intention of the parties, for 
 their intention must govern. 
 
 There is no fixed rule or settled form of words by which we 
 can always determine whether the transaction is a bailment or 
 a sale, and it is often difficult to conclude from the facts what 
 was really intended by the parties. If the identical property 
 is to be returned, or the same property in a changed condition, 
 or the natural product of the same property, the transaction is- 
 with out doubt not a sale. " One established test," says Benjamin,, 
 " between a bailment and a sale is that, when the identical 
 thing delivered is to be returned, though perhaps in an altered 
 form, it is a bailment and the title is not changed; but where 
 there is no obligation to return the specific article received, 
 and the receiver is at liberty to return another thing, either in 
 the same or some other form, or else to pay money, he becomes 
 a purchaser; the title is changed; the transaction is a sale, and 
 
 10 
 
CH. I.j THE RELATION. [§ 24. 
 
 the property is at the receiver's risk, therefore cannot be the 
 true construction of the contract, ... the article deliv- 
 ered is to be returned either just as received or made into other 
 goods; . . . the transaction is a bailment." 1 
 
 And so where castings were delivered to be manufactured 
 into shears, the blades to be furnished by the bailee, it was held 
 to be a bailment.^ 
 
 This test, however, excludes the case of a factor who with- 
 out question may become a bailee of property. It would also 
 exclude all that character of bailments known as "consign- 
 ments for sale," because in such cases there is no obligation to 
 return the specific article, but only the value thereof in money 
 after a sale is made by a factor or consignee; or, in case no 
 sale is made, then to restore the specific article.' "While goods 
 are so held upon consignment, there can be no question but 
 that the bailment made exists, and the parties would be liable 
 as bailor and bailee. This, then, may be said to be an excep- 
 tion to the test above given. 
 
 § 24. Commingling of grain on storage. — These con- 
 tracts more often arise in the business of warehousemen or ele- 
 vator companies, or where grain is stored with mill owners, 
 where the grain delivered is mingled with other grain of the 
 same grade and kind in one common mass and not kept sepa- 
 rate for each owner. In such case it is held, if the commingled 
 mass has been delivered on simple storage, each party is en- 
 titled on demand to receive his share; if for conversion into 
 flour, each is entitled to his proper share of the product.* 
 
 And where a milling firm received a quantity of wheat and 
 gave receipts therefor, stating that it had been received at the 
 owner's risk from farmers and at a certain rate when sold to 
 them, but no charge was made for storage, and the millers used 
 the wheat in their business, and it became a part of their cur- 
 rent consumable stock and its identity was lost, it was held 
 
 1 Benj. on Sales (6th Am. ed.), 5. not convert the transaction into 
 
 2 Mack V. Snell, 140 N. Y. 193. a sale, and the bailee of the whole 
 'Norwegian Plow Co. v. Clark, 70 has no greater control of the mass 
 
 N. W. 808. than if the share of each were kept 
 
 * Where grain is delivered on a con- separate. Chase v. Washburn, 1 Ohio 
 tract of bailment, the mere fact that St. 344, 50 Am. Deo. 630; Andi-ews v. 
 it was mixed with other grain with Richmond, 34 Hun (N. Y.), 20; James 
 the knowledge of the bailor does v. Plank, 48 Ohio St. 355. 
 
 11 
 
R 24,] OEDINAEY BAILMENTS. [PAET I. 
 
 that in the absence of legal usage, or a course of dealing be- 
 tween the parties to the contract, the receipt should be con- 
 strued as evidence of a bailment and not of a sale.' But_ where 
 grain is delivered to a warehouseman who is also a miller, 
 with the understanding that it is to be mixed with the miller's 
 own wheat and ground into flour in the usual course of his 
 business, and the flour made therefrom is to be his own prop- 
 erty, such a transaction is a sale.^ Where the warehouseman 
 was authorized to sell only his own portion of the common 
 mass, and was required to keep at all times an amount on hand 
 to satisfy all depositors, it was held that the transaction was a 
 bailment.' 
 
 Plaintiffs delivered grain to defendant at his elevator and 
 received from him a memorandum that it was " bought at 
 owner's risk as to fire," but specifying no price, the grain being 
 placed by himself in a separate bin. Subsequently the defend- 
 ant made an offer for it which the plaintiffs refused, and after- 
 wards the elevator and grain were destroyed by fire without 
 defendant's fault. It was the custom to receive grain in this 
 manner, and afterwards buy or return it. It was held that the 
 defendant was not liable for the loss.* 
 
 And where a contract by which several farmers were to de- 
 liver to a designated firm, at a factory previously owned and 
 controlled by the farmers, specified vegetable products at des- 
 ignated prices, which the firm agreed to take and pay for at 
 certain times, and if necessary make additions to the factory 
 at a cost not to exceed a specified amount, to be deducted from 
 the net profits, each farmer to receive a specified per cent, pro 
 rata according to the amount of produce delivered by him at 
 the factory in addition to the price agreed upon, it was held 
 that the contract was one of bailment and not of sale.* 
 
 And a delivery of wheat to an elevator company for which 
 the owner, after stating that he did not wish to sell, took a re- 
 
 iBretz V. Diehl, 117 Pa. St. 589, 2 St. 255 (distinguishing State v. Wash- 
 Am. St. Rep. 706. burn, 1 Ohio St. 344). 
 
 2Ledyard v. Hibbard, 48 Mich. 431, ■• Irons v. Kentner, 51 Iowa, 88, 33 
 
 43 Am. Rep. 474. Am. Rep. 117; State v. Stockman, 30 
 
 3 Andrews v. Richmond, 34 Hun Oreg. 83, 46 Pac. 851. 
 
 (N. Y.), 30; James v. Plank, 48 Ohio ^Satles v. Hallock, 44 N. Y. Sup. 
 
 543. 
 
 13 
 
CH. I.] THE RELATION. [§ 25. 
 
 ceipt stating the number of bushels delivered, was held to con- 
 stitute a bailment and not a sale of the wheat, notwithstanding 
 a custom in the neighborhood to regard such transactions as 
 sales, unless the custom was known to the owner of the wheat 
 and he understood that he was dealing in accordance there- 
 with.i 
 
 And where plaintiffs delivered grain to an elevator com- 
 pany under an alleged oral agreement that it was to remain 
 in the elevator until the plaintiffs were ready to sell it, and 
 that the elevator company was then to have the grain if it 
 would pay as much as was paid by others, and in case it did 
 not buy it was to have one cent per bushel for weighing the 
 grain in and out, plaintiffs knowing that the grain so delivered 
 was mixed in a mass with other grain, and that the company 
 was accustomed to ship from the mass whenever the prices 
 suited them, and the plaintiffs could not have understood that 
 the identical grain was in any case to be returned to them, it 
 was held that the true meaning of the contract was that the 
 elevator company was to have the option to pay the best market 
 price for the grain whenever plaintiffs desired to close the 
 transaction, or return to them an equal quantity of similar 
 grain, and that it was a contract of sale and not of bailment.^ 
 
 § 25. A bailment^ a sale, or a gift — How determined. — 
 From what has been said and from the examples noted, it may 
 be determined that the bailee is only entitled to the possession 
 of the property which is finally to be delivered on contract to 
 the bailor; that the title to the property does not pass to the 
 bailee but remains in the bailor, while in a sale there is a trans- 
 fer of the absolute title in the property or thing for a price in 
 money. And so in case of a gift the title of the property passes 
 upon delivery, while in bailment the title of the property re- 
 mains in the bailor, and the possession, or the right to posses- 
 sion, only, passes to the bailee. 
 
 1 Weiland v. Kregnick, 63 Minn. v. Leyda, 46 Ohio St. 244, 20 N. E. 
 314; Weiland v. Sunwall et al., 63 472; Pontiac Nat. Bank v. Lungan, 
 Minn. 320, 65 N. W. 628; Barnes v. 28 111. App. 401; McGrew v. Thayer, 
 MoCrea, 75 Iowa, 267, 9 Am. St. Rep. — Ind. — (1900), 57 N. E. 262; Baker 
 473, 39 N. W. 392. v. Born, — Ind. — , 46 N. E. 930; 
 
 2 Barnes Bros. v. MoCrea & Co., 75 Wookey v. Smith, 181 IlL 564; State 
 Iowa, 367 ; and see oases oited ; O'Dell v. Cowdrey, 79 Minn. 94, 48 L. ^. A. 92. 
 
 13 
 
CHAPTEE II. 
 
 OF THE CLASSIFICATION OF BAILMENTS. 
 
 26. Roman classification adopted 
 
 by authors. 
 
 27. Modern classification upon the 
 
 theory of recompense or no 
 recompensa 
 
 § 28. Modern classification includes 
 earlier classification. 
 
 29. Ordinary bailments. 
 
 30. Exceptional bailments. 
 
 31. Chart showing classification of 
 
 bailments 
 
 § 26. Roman classification adopted by autliors. — To Lord 
 Holt, Sir "William Jones and Judge Story are we indebted for 
 that thorough classification of this subject that has been recog- 
 nized by every author that has written upon it. They followed, 
 in large degree, the Roman system, and adopted the Eoman 
 names given to the different kinds of bailments, which have 
 been so thoroughly woven into our laws that now they are 
 recognized as a part of it. According to the system of these 
 great authors, the divisions of the law of bailment as stated 
 and defined by Story, Schouler ^ and other authors are as fol- 
 lows: 
 
 I. Depositum-: A naked bailment of personal property to 
 
 be kept by the bailee without recompense and returned 
 
 to the bailor when the purpose of the bailment has 
 
 been accomplished. 
 II. Mandatum: A mandate, or the bailment of personal 
 
 property, as to which the bailee undertakes without 
 
 recompense to do something. 
 
 III. Comniodatum: A loan for use, or the bailment of per- 
 
 sonal property to be borrowed or used by the bailee 
 without reward; but in our law, of course, to be re- 
 stored in specie. 
 
 IV. Pignus: A pledge or pawn, or the bailment of personal 
 
 property to a creditor as security for some debt or 
 engagement. 
 Y. Locatio conduGtio: A hiring which is always for some 
 reward. 
 
 » Story on Bailm., sees. 4, 5, 6, etc. ; Schouler, Bailm., sec. 14 
 
 14 
 
•CH. II.J CLASSIFICATION OF BAILMENTS. [§§ 27-30. 
 
 Judge Story divides the locatio- bailments into four subdi- 
 ■visions : 
 
 I. Locatio rei: The hiring of a thing for use. 
 II. Locatio oporis faciendi: The hiring of work and labor 
 upon a thing. 
 
 III. Locatio custodice: The hiring of care and service to be 
 
 performed or bestowed on the thing delivered. 
 
 IV. Locatio oporis meroium, vehendarum: The hiring of the 
 
 carriage of goods from one place to another.^ 
 
 § 27. Modern classification upon the theory of recompense 
 -or no recompense, — That the classifications of these early au- 
 'thors were not only comprehensive, but have been of inesti- 
 mable value to the development of the law of bailments, there 
 •can be no doubt, but the more modern theory has been to 
 classify along the line of gratuitous and non-gratuitous bail- 
 ment. Is the bailment for the sole benefit of the bailor, for 
 the sole benefit of the bailee, or for the mutual benefit of both 
 parties ? 
 
 This modern classification, however, is but a remodeling of 
 the former and earlier one, and is used, and is principally im- 
 portant, for the purpose of illustrating in a concise manner the 
 liability and duty devolving upon the parties to the bailment. 
 
 § 28. Modern classification includes earlier classiiication. 
 
 I. A bailment for the sole benefit of the bailor includes 
 (a) Depositum, (b) Mandatum. 
 
 II. A bailment for the sole benefit of the bailor includes 
 Commodatum. 
 
 III. A bailment for the benefit of both bailor and bailee in- 
 •cludes (a) Pignus, (b) Locatio Oonduotio with all of the subdi- 
 visions made by Judge Story. 
 
 § 29. Ordinary bailments. — The bailments thus far dis- 
 cussed are generally called ordinary bailments. There is, how- 
 ever, another general subdivision called — 
 
 § 30. Exceptional bailments. — These bailments are compre- 
 'hended by the " Locatio " bailments, so called, their liability 
 Testing in the demands of public policy. They are {a) post- 
 jnasters, (5) innkeepers, and (c) common carriers. 
 
 ' Story on Bailm., sec, 8. 
 15 
 
§31.J 
 
 OEDINAEY BAILMENTS. 
 
 [PAET l 
 
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CHAPTEE III. 
 
 OF THE RIGHTS, DUTIES AND LIABILITIES GENERALLY OF 
 BAILOR AND BAILEE. 
 
 § 33. Object of chapter. 
 
 33. Gratuitous and non-gratuitous 
 
 bailments. 
 
 34. Consideration. 
 
 35. Benefit of bailor, or bailee, or 
 
 both. 
 
 36. Negligence or diligence. 
 
 37. Chart showing duties and lia- 
 
 bilities. 
 
 38. What is diligence and what is 
 
 negligence. 
 
 i 39. Definition generally accepted. 
 
 40. Every case ruled by its own cir- 
 
 cumstances. 
 
 41. High diligence — Gross negli- 
 
 gence. 
 43. Diligence and negligence — 
 
 Questions of law and fact. 
 43. Classification of conditions and 
 
 circumstances. 
 
 § 32. Object of chapter. — It is not our intention under this 
 head to go fully into the discussion of the rights, duties and lia- 
 bilities of the parties to a bailment, but simply to call attention 
 to some of the general doctrines touching upon that subject, and 
 to determine more particularly the rules governing the same. 
 
 § 33. Gratuitous and non-gratuitous bailments. — We have 
 explained and defined the classification of bailments somewhat 
 in detail, and shown a chart which exhibits the several kinds 
 of bailment relations. The most general subdivision of bail- 
 ments is (1) gratuitous bailments, and (2) bailments not gra- 
 tuitous. It is upon these subdivisions that the degrees of liabil- 
 ity are based, and from these are determined the degree of duty. 
 
 § 34. Consideration. — While the bailment relation does not, 
 as to contracts, rest upon a consideration, there is that that is 
 somewhat analogous to it in the amount of benefit that moves 
 to the bailor or bailee in the particular bailment; not that it 
 will warrant the one or the other to cease to exercise good 
 faith and carry out the bailment purposes, but that it will lay 
 upon them extra or further responsibilities in the performance 
 of the trust imposed. 
 
 § 35. Benefit of bailor, or bailee, or both. — And so it is a 
 settled doctrine of bailments, in determining rights, duties and 
 liabilities, to determine (1) was the bailment relation for the 
 sole benefit of tie bailor; (2) was it for the sole benefit of the 
 bailee, or (3) was it for the benefit of both ? 
 3 17 
 
§§ 36, 37.] 
 
 OEDINAEY BAILMENTS. 
 
 [PAET I. 
 
 § 36. Negligence or diligence. — Coupled witli the question 
 of benefit is the question of negligence or diligence; for the re- 
 ceiving of benefits brings the requirement of diligence, and the 
 absence to a certain extent excuses negligence. If, for example, 
 the bailee is to receive no compensation and no benefit, and 
 the bailment relation is solely for the benefit of the bailor, a 
 " depositum or a mandatum" the law does not require of the 
 bailee so high a degree of diligence as it would in case of com- 
 modatum, when the benefit is entirely for the bailee, and no 
 benefit whatever to the bailor. And so the duties and liabili- 
 ties of the bailee, when there is no special contract, depend 
 almost entirely upon the benefit received, and the diligence he 
 has shown or the negligence he is guilty of. If the bailment, 
 for example, is for the sole benefit of the bailor, the law only 
 requires of the bailee slight diligence, and holds him liable for 
 gross negligence. If for the sole benefit of the bailee, then he 
 is held to high diligence, and liable for slight negligence; if 
 for the benefit of both bailor and bailee, ordinary diligence and 
 ordinary negligence. 
 
 §37. Chart showing duties and liabilities. — The rights, 
 duties and liabilities of the parties, bailor and bailee, the de- 
 gree of diligence to which they are held, and of negligence for 
 which they are liable, may be shown by the following chart: 
 
 IF BAILMENTS FOR MUST EXERCISE 
 
 LIABLE FOR 
 
 Sole benefit of bailor, \ 
 a depositum or man- J- Slight Diligence. 
 datum. 
 
 *'l 
 
 If for sole benefit of 
 bailee, a commoda- 
 tum. 
 
 If for the benefit of 
 both bailor and 
 bailee, a pignus. 
 
 Locatio rei. 
 
 Locatio oporis faoi- 
 endi. 
 
 Locatio custodice. 
 
 Locatio oporis mer- 
 cium vehendarum. 
 
 High Diligence. 
 
 Gross Negligence. 
 
 Slight Negligence. 
 
 Ordinary Diligence. 
 
 - Ordinary NEGLiGENoa 
 
 18 
 
OH. III.] ' EIGHTS, DUTIES AND LIABILITIES. [§§ 38-41. 
 
 § 38. What is diligence and what is negligence. — It is a 
 
 difficult matter to give a definitioij of diligence or negligence, 
 or of high diligence or gross negligence, as applied to the law 
 of bailments. Ifegligence and diligence are relative terms, 
 and depend upon the circumstances of the particular case; 
 what would be diligence in one case would be far short of it 
 in another. 
 
 As, for example, it would not be considered negligent for a 
 workman to smoke a cigar in a foundry, but if he were to do 
 so in a powder-mill it would be the grossest of negligence. 
 So, while one might be said in the one case to be exercising 
 ordinary diligence, in the latter he would be guilty of gross 
 negligence. 
 
 So, on driving a span of horses to a wagon in the country 
 where there were few, if any, using the highway, it might be 
 said that very fast driving would be ordinary diligence, but 
 as he approached a crowded city a much greater\ caution 
 would be required, and the driving at the high rate of speed 
 on a crowded city street would be gross negligence. So we 
 see that very many elements of fact enter into the determina- 
 tion of the question. 
 
 §39. Definition generally accepted. — A definition gener- 
 ally accepted by authors and the profession is, " ordinary dili- 
 gence is that care and diligence which an ordinarily prudent 
 man, under like circumstances, would exercise in matters of 
 his own concern." 
 
 §40. Every case ruled by its own circumstances. — And 
 so it may be seen that each and every case must be ruled by 
 its own facts and circumstances. The advent of every new 
 invention, the discovery of every new and important force 
 that is appropriated by man and made subservient to the great 
 on-marching industries in these days of progress, bring with 
 them new and varied circumstances and conditions which must 
 be considered in defining and determining what is negligence 
 and what is diligence in the given case. The principles of 
 law, settled and staid, remain the same, but the facts are new 
 and continually changing, and we are called upon to marshal 
 and classify them, and apply the governing rules of law. 
 
 §41. High diligence — Gross negligence. — We have de- 
 fined diligence by adopting the usual definition of that term, 
 
 19 
 
R 41.] OEDINAEY BAILMENTS. [PAET I. 
 
 and have seen that it is a relative term. So, high diligence 
 and gross negligence are alike relative terms and are subject 
 to the same discussion and examples of explanation. At the 
 most, we can only say that high diligence is more than ordi- 
 nary; slight diligence less than ordinary diligence, and gross 
 negligence is the want of slight diligence, varying in degree 
 according to the elements of carefulness or want of care. 
 
 The degrees of diligence or negligence can only be defined 
 by comparison with that diligence which is usually exercised 
 by the ordinarily prudent man in caring for his own under 
 like circumstances. High diligence is a degree of carefulness 
 greater than that care usually exercised by the ordinarily pru- 
 dent man, as above stated, while slight diligence is not so much 
 as o,rdinary. Gross negligence is a lesser degree of care than 
 slight negligence, and slight negligence is less than ordinary 
 care, and greater than gross negligence. And so it can be 
 seen it would be exceedingly difficult to accurately define de- 
 grees of diligence or negligence, for every case depends on its 
 particular facts. 
 
 Mr. Justice Bradley in the case of Railway Co. v. Lockwood} 
 in discussing this question said: "The defendants endeavor 
 to make a distinction between gross and ordinary negligence, 
 and insist that the judge ought to have charged that the con- 
 tract was at least effective for excusing the latter. 
 
 " We have already adverted to the tendency of judicial opin- 
 ion adverse to the distinction between gross and ordinary neg- 
 ligence. Strictly speaking, these expressions are indicative 
 rather of the degree of care and diligence which is due from a 
 party and which he fails to perform, than of the amount of 
 inattention, carelessness, or stupidity which he exhibits. If 
 very little care is due from him, and he fails to bestow that 
 little, it is called gross negligence. If very great care is due 
 and he fails to come up to the mark required, it is called slight 
 diligence. And if ordinary care is due, such as a prudent man 
 would exercise in his own affairs, failure to bestow that amount 
 of care is called ordinary negligence . . . and hence it is more 
 strictly accurate, perhaps, to call it simply 'negligence.' And 
 this seems to be the tendency of modern authorities. If they 
 
 1 17 Wall. (U. S.) 383. 
 20 
 
OH. III.] EIGHTS, DUTIES AND LIABILITIES. [§ 42. 
 
 mean more than this, and seek to abolish the distinction of 
 degrees of care, skill and diligence required in the perform- 
 ance of various duties and the fulfillment of various contracts, 
 we think they go too far, since the requirement of different 
 degrees of care in different situations is too firmly settled and 
 fixed in the law to be ignored or changed. 
 
 " The compilers of the French Civil Code undertook to abol- 
 ish these distinctions by enacting that ' every act whatever of 
 man that causes damage to another obliges him by whose 
 fault it happened to repair it.' TouUier, in his commentary 
 on the code, regards this as a happy thought, and a return to 
 the law of nature. But such an iron rule is too regardless 
 of the foundation principles of human duty, and must often 
 operate with great severity and injustice." 
 
 In Huiton v. Dibions^ Lord Denman said: "It may well be 
 doubted whether between gross negligence and negligence 
 merely any intelligible distinction exists." 
 
 And in Wilson v. Britt ^ Eolf e, B., said : " I could see no 
 difference between negligence and gross negligence; that it 
 was the same thing with the addition of a vituperative epithet." 
 
 But for all the criticism of learned jurists, the fact still re- 
 mains that the law for all time, since the days of Lord Holt, 
 has recognized these different degrees, and it is often found 
 necessary to distinguish the difference in degrees under certain 
 facts and circumstances. 
 
 § 42. Diligence and negligence — Questions of law and 
 fact.— It may be said that the question of diligence or negli- 
 gence, and the degree that in a given case fixes liability, 
 is a mixed question of law and fact; while the principles of 
 law that govern the case as to the degree of diligence that is 
 required, and the degree of negligence that will render the 
 bailee liable, the facts that determine what is negligence and 
 what is diligence, are varied and always depend upon the cir- 
 cumstances of the particular case. It is the province of the 
 court to determine the degree of diligence that must be exer- 
 cised by the bailee in order to be justified, and the degree of 
 negligence that will render him liable. While to the jury is 
 given the task of determining whether the particular facts ad- 
 
 13Q. B. 646. niM. &W. 113. 
 
 21 
 
R 43.] OEDINAEY BAILMENTS. [PAET I. 
 
 duced are sufficient to prove that negligence or diligence, the 
 degree of care that is required is for the court to determine; 
 whether that care has been exercised or is wanting is for the 
 jury to find from the facts that are proven. Circumstances 
 may exist that would require the court to determine the whole 
 matter ; as, for example, if the facts were such that every fair 
 and reasonable-minded man could draw but one conclusion, 
 such that among fair and reasonable men there could be no 
 diiference of opinion, then in such case there would be noth- 
 ing for the jury, and the court would determine the whole 
 matter as a question of law. Such a case would, however, 
 very seldom arise. 
 
 § 13. Classification of conditions and circumstances.— 
 Much has been said and written by law writers and courts of 
 last resort by way of classifying the several conditions abd 
 facts that aid in determining these questions. 
 
 " What constitutes ordinary diligence," says Judge Story,' 
 " may always be materially affected by the nature, the bulk, 
 and the value of the articles. A man would not be expected 
 to take the same care of a bag of oats as of a bag of gold; of 
 a bale of cotton as of a box of diamonds or other jewelry; of a 
 load of common wood as of a box of rare paintings; of a rude 
 block of marble as of an exquisite sculptured statue. The 
 value especially is an important ingredient to be taken into 
 consideration upon every question of negligence; for that may 
 be gross negligence in the case of a parcel of extraordinary 
 value which, in the case of a common parcel, would not be so. 
 The degree of care which a man may reasonably be required 
 to take of anything must, if we are at liberty to consult the 
 dictates of common sense, essentially depend upon the quality 
 and value of the thing, and the temptation thereby afforded to 
 theft. The bailee, therefore, ought to proportion his care to 
 the injury or loss which is likely to be sustained by any im- 
 providence on his part." 
 
 Professor Lawson in his work on Bailments gives us a most 
 valuable " classification of circumstances," which we here quote 
 and discuss in the order and under the different classes he has 
 
 1 Story on Bailments, sec. 15; Lawson on Bailments, sec. 13. 
 
 22 
 
CH. III.] EIGHTS, DUTIES AND LIABILITIES. [§ 43. 
 
 furnished. He says:* "The circumstances which may be de- 
 cisive as to the sufficiency of the care exercised by a bailee in 
 the carrying out of his trust may be classed under four heads, 
 viz. : 
 
 " First. The nature and value of the article. 
 
 " Second. The customs of the place or trade. 
 
 " Third. The condition of the country or climate. 
 
 " Fourth. The condition of the times." 
 
 These rules seem to touch almost every imaginable case, and 
 mention of a few examples will suffice to show their admirable 
 practicability. 
 
 First. The nature and value of the article. One in charge 
 of heavy and almost immovable articles, as heavy machinery 
 or castings, would not be deemed guilty of negligence if he 
 should leave them out of doors during the night unguarded ; 
 even in a large city it would be considered ordinary prudence. 
 But the jeweler could hardly be excused for leaving a box of 
 valuable diamonds even outside of his strong safe doors; to do 
 so would be gross negligence. Examples will suggest them- 
 selves equally as pertinent. The common carrier who is in- 
 trusted to carry glassware is called upon to exercise that degree 
 of diligence and care which the subject of the bailment de- 
 mands, and he cannot treat it as he would if it were iron cast- 
 ings or freight that would not be so easily damaged. If the 
 subject of the bailment is of great value, it is the duty of the 
 bailee to exercise a degree of diligence which the care of such 
 a bailment demands. The banker must supply his safe with 
 improved locks, and guard the deposits of his customers in such 
 a manner as the property in his custody demands. The car- 
 riage maker who is repairing a valuable carriage would be in 
 duty bound to lock it in his shop or storehouse at night, while 
 the wagon of little or no value in his custody for the same 
 purpose might be left in the back yard of his place. 
 
 Second. The customs of tlie place or trade. Prof. Lawson 
 cites the case of Cass v. Railroad Co.^ in which the court say : " If 
 the defendants exercised due and ordinary care in the custody 
 of the property, they cannot be charged for its loss. What 
 constituted such a case was a question of fact to be judged of 
 
 1 Story on Bailments, sec. 15; Law- 2 14 Allen (Mass.), 448. 
 son on Ballnaents, sec. 13. 
 
 23 
 
g 43.] ORDINARY BAILMENTS. [PART I. 
 
 with reference to the degree of care which other persons en- 
 gaged in similar business were in the habit of bestowing on 
 property similarly situated. The standard of ordinary care 
 varies necessarily in different localities. One degree of dili- 
 gence would be required for the city, and a less or greater for 
 the country, depending upon a variety of circumstances." 
 
 Fourth. The condition of the times. Examples to illustrate 
 this are numerous, and would no doubt be interesting. If we 
 turn our attention to the conditions that prevailed a century 
 ao'O, we should find that that which was considered prudent 
 and ordinarily diligent would now, perhaps because of the ad- 
 vances made, be considered negligence. Then, the farmer 
 would not be considered negligent if he allowed his stock, cat- 
 tle, sheep and horses to ran at large upon the highways, or 
 upon his unfenced acres, while now with the railways that 
 have passed through the same broad acres, and over which the 
 railroad companies are running their fast freight and express 
 trains, have so changed the condition that it would be negli- 
 gence to allow live stock to run at large; and so the ordinarily 
 prudent man must confine his stock, or restrain them in such 
 a manner that such accident may be avoided. Then, the 
 driver of the carriage or the coach through the streets of our 
 cities need not look and listen for the electric car that now is 
 driven through the same street at a rate of from six to twenty 
 miles an hour. The adoption of the hundreds of new inven- 
 tions brings with them new responsibilities and imposes new 
 and important cares. Circumstances might have existed when 
 it would not be careless or negligent for one in charge of the 
 property of another to fail to guard it from danger arising from 
 thieves or robbers by omitting to place it behind locks and bolts, 
 while at the present not to so care for it would be the grossest 
 of negligence. And so negligence has been defined to be " a 
 breach of a duty to exercise commensurate care resulting in 
 damages." 
 
 ^4 
 
OHAPTEE lY. 
 
 SOME FURTHER GENERAL PRINCIPLES TOUCHING RIGHTS AND 
 LIABILITIES OF PARTIES TO BAILMENT. 
 
 44. An element of agency. 
 
 45. Under circumstances may bind 
 
 bailor. 
 
 46. Right to use the property. 
 
 47. Unwarranted use would render 
 
 the bailee liable. 
 
 48. Bailee may protect the prop- 
 
 erty and his interest. 
 
 49. Skilled bailee. 
 
 50. Rule not always carefully 
 
 stated. 
 
 51. Special deposits in banks. 
 
 53. Determining negligence. 
 
 53. Honesty and good faith de- 
 manded. 
 
 ^4. Bailee may protect himself 
 against claim of third par- 
 ties. 
 
 55. What would excuse liability. 
 
 56. Unlawful tortious possession 
 
 would render bailee liable 
 for injury or loss. 
 ■57. Rights and duties to third par- 
 ties. 
 
 58. Bailee against third parties. 
 
 59. Modifying or enlarging respon- 
 
 sibility by contract. 
 
 ■60. How far can the bailee lessen 
 his responsibility by con- 
 tract. 
 
 ^1. Redelivery to bailor. 
 
 § 63. Not always required to rede- 
 liver the specific property. 
 
 63. Excuses for non-delivery. 
 
 64. Conversion of the property. 
 
 65. Bailee's right to compensation 
 
 and to a lien upon the prop- 
 erty. 
 
 66. Agreement for compensation, 
 
 express or implied, neces- 
 sary to create lien. 
 
 67. If no statute or express con- 
 
 tract creating common law 
 lien. 
 
 68. Two kinds of liens. 
 
 69. Delivery to the bailee for the 
 
 purpose of the bailment nec- 
 essary to the establishment 
 of the lien. 
 
 70. Possession of the property an 
 
 essential. 
 
 71. The finder of property may 
 
 have lien. 
 
 73. Extinction of the lien — Pay- 
 ment or tender. 
 
 73. The lien may be waived. 
 
 74 Lien once lost cannot be re- 
 vived. 
 
 75. Right of the bailor to compen- 
 
 sation. 
 
 76. Enforcement of the lien of 
 
 bailee. 
 
 § 44. An element of agency. — "Where the bailee, acting 
 within the scope of the bailment contract and in good faith, 
 has found it necessary to make expenditures in order to pre- 
 serve the subject of the bailment, as, for example, if the subject 
 of the bailment be a valuable horse, and the horse should be 
 taken sick, the bailee would be justified in employing a veteri- 
 
 25 
 
§§ 45-47.] ORDINARY BAILMENTS. [PART I. 
 
 nary and in purchasing medicine to restore the health of the 
 horse. And should the horse break out of the inclosure by no 
 fault of the bailee, and become impounded for damage done, 
 the bailee would be expected to pay the damage. Acting in 
 good faith, and within the reasonable scope and necessity of 
 the bailment contract, expressed or implied, the bailee should 
 pay necessary expenses and damages, and may recover the 
 same from the bailor. In this respect the same rule applies 
 that is applicable to principal and agent. 
 
 § 45. Under circumstances may bind bailor, — And so un- 
 der circumstances which make it reasonably necessary, the 
 bailee may contract for the care of the bailed property in the 
 name of the bailor, and the bailor will be bound to pay for 
 the same. The law takes a broad common-sense view of the 
 matter. If the property, the subject of the bailment, is ani- 
 mals, it is understood they must be fed and perhaps sheltered; 
 if other property, perhaps insured;' so the bailee would have 
 authority to do with the bailment what he would do under 
 just such circumstances if it were his own. 
 
 § 46. Right to use the property The general rule is that 
 
 the bailee has no right to use the bailed property; he is simply 
 to keep the property in his custody, and give it such care as 
 good faith and reasonable and fair judgment demands. There 
 are, however, exceptions to this rule, or at least apparent ex- 
 ceptions, in cases where the proper care of the property would 
 require that it be used. As, for example, a milch cow ; it would 
 be the duty of the bailee to milk her at the usual time, indeed 
 this would be required, and to fail to do this would render him 
 liable in damages. A flock of sheep would require for proper 
 care that their wool should be removed when the summer 
 months come on. These cases could hardly be called excep- 
 tions to the general rule, because it is the kind of care that the 
 property demands. 
 
 § 47. Unwarranted use would render the bailee liable.— 
 Should the bailee use the property to an extent unwarranted 
 by the bailment, he would become liable to the bailor in an 
 action for damages, and under certain circumstances for con- 
 
 1 Fagan v. Thompson, 38 Fed. 467; Furness v. Un. Nat. Bank, 147111. 170. 
 
 26 
 
CH. IV.J GENERAL PRINCIPLES. [§ 47- 
 
 version of the property, depending somewhat upon the extent 
 of the damage to the property. 
 
 The use to which the property may be put is often fixed by 
 the contract of bailment, but if there is no expressed contract 
 fixing the use of the property, then it must be determined by 
 the attending circumstances, the nature of the property, and 
 what might be reasonably presumed to be a proper and neces- 
 sary use. As, for example, if the property bailed were a fine 
 carriage team which were let to the bailee for the purpose of 
 pleasure driving, if he should put them on a plow and work 
 them upon a farm, there would be no difficult}'- in concluding 
 that he was putting the bailed property to an unauthorized 
 use. 
 
 A leading case upon the subject is that of Alvord v. Dav- 
 enport,^ where Mr. Justice Parke gives us a very clear dis- 
 cussion of the subject. He says: "The authorities seem to 
 agree that the right of the bailee to use the property, in the 
 absence of express contract on the subject, depends on the cir- 
 cumstances of the case, the character and purpose of the bail- 
 ment, the nature of the property in connection with the other 
 attending circumstances. One test or principle applicable to 
 the subject is to consider whether from the circumstances the 
 consent of the owner to the use may fairly be presumed. It is 
 said in the books that if the use would be for the benefit of the 
 property, the assent of the owner should generally be pre- 
 sumed, but not so if the use would be injurious or perilous. It 
 would seem that if the use would be indifferent, the right to 
 use should be determined the way other circumstances incline. 
 In some cases the assent of the owner may be inferred as a 
 fact from the circumstances; but that is not in all cases neces- 
 sary; for in some cases the presumed assent is a mere fiction, 
 and the question as to the right of the bailee to use the prop- 
 erty becomes a question of law upon a given state of facts 
 without reference to any actual assent of the owner in fact. 
 It is generally not only the right, but the duty, of the bailee 
 to use the property so far as necessary to its preservation. To 
 this extent the assent of the owner may be presumed — as in 
 case of the milking of a milch cow; and in the case of a horse, 
 
 143 vt. 30. 
 
 27 
 
88 48, 49.] OEDINABY BAILMENT?. [PAET I. 
 
 exercise and moderate use to the extent necessary to the health 
 and vigor of the animal. Again, it is laid down by the ele- 
 mentary writers that the right to use the property may depend 
 on whether it is property of a nature that requires expense to 
 keep it; and if so, the bailee may use it reasonably to com- 
 pensate him for the charge of keeping. This fact, however, 
 would not necessarily determine the right without reference to 
 the character of the bailment and other circumstances." 
 
 It may be said to be the general holding that " the right of 
 a bailee to use the thing bailed is strictly confined to the use 
 expressed or implied in the particular transaction ; and in case 
 of an unauthorized use, the bailee makes himself liable for 
 any loss, although it be by inevitable casualty."' 
 
 § 48. Bailee may protect the property and his interest.— 
 As we have seen, the bailee only has a possessory title to the 
 bailed property, and the right to its custody and use to the 
 extent of the contract of bailment, but that title is paramount 
 to any other claim except the title of the owner, and during 
 the legal existence of the bailment, even theowner cannot dis- 
 turb the bailee in his' possession, custody, and use to the extent 
 of the contract. 
 
 The bailee may bring replevin for the possession of the prop- 
 erty, and in some instances trover for its value; as when it is 
 destroyed or damaged to an extent that the benefits of posses- 
 sion are impaired ; or where it would be necessary to protect it, 
 the owner may sustain an action of trover for its value. 
 
 § 49. Skilled bailee. — Where the care, custody or services 
 are undertaken by a gratuitous bailee who is skilled in the par- 
 ticular business involved, the same general rule of diligence 
 applies. It will be seen, however, that even slight diligence 
 in such a case might secure to the bailor the benefit of skilled 
 professional service, because, although the bailee is to receive 
 no compensation, the bailor is entitled to receive the kind of 
 service, care and custody the bailee holds out to the public he 
 is competent to perform. As, for example, where a watch is 
 
 iLane v. Cameron, 38 Wis. 603; tions that he was not to use him in 
 Devoin v. Lumber Co., 64 Wis. 616, any way, tlie use of him under the 
 54 Am. Rep. 649; Clarl;: v. Wliitaker, bailment was a conversion. Collins 
 19 Conn. 319. Where a bailee ac- v. Bennett, 4G N. Y. 490. 
 cepted a horse to board with direc- 
 
 28 
 
CH. IV.j ^ GENERAL PEINCIPLES. [§§ 50, 51. 
 
 left with a skilled watchmaker for repairs, the repairs to be 
 made without compensation, he is required to render such 
 service as he claims and gives out he is able to render, and to 
 do less than that would bo gross negligence. The same rule 
 is applied in the case of a skilled surgeon, who, without com- 
 pensation, undertakes to perform a surgical operation. He 
 must use all of the professional skill he ordinarily uses and 
 gives out to the public, and to those who employ him, that he 
 is in the habit of using. And it may be said that this same 
 rule would apply in cases of special deposits in banks; although 
 there is no compensation, and the bailment is gratuitous, the 
 exercise of less skill and care in looking after the property than 
 the bank would usually exercise in matters of its own would 
 be considered gross negligence, and if loss or injury resulted 
 from it the bank would be liable. Yery many examples might 
 be given, but sufficient have been noticed to illustrate the rule. 
 
 § 50. Rule uot always carefully stated. — It would appear 
 that there is quite a tendency among a few of the judges to 
 loosely state the degree of diligence required, especially in 
 cases of the bailee in gratuitous bailments; and according to 
 some of the cases it would seem that " ordinary diligence " 
 is always required, or the same degree of diligence that is re- 
 quired in " mutual benefit " bailments, for they fail to make 
 any distinction; but the better class of authority has always 
 clung to the doctrine of degrees of diligence and negligence in 
 fixing or excusing liabilit3^ 
 
 §51. Special deposits in banks. — In these cases two im- 
 portant questions are generally involved: 1st. The question as 
 to whether the servants of the bank (corporation) acted within 
 the scope of their authority, and for the bank in accepting the 
 property; and 2d. The question of diligence or negligence that 
 occasioned its loss. 
 
 As we have seen, a corporation may be a bailee of property; 
 but as a corporation, from its very nature, must of necessity 
 act by its officers and servants, the question at once presents 
 itself: in doing the business, in accepting the trust, were they 
 acting as corporate officers or individuals ? Was their action 
 within the corporate powers of the bank ? For if the act done 
 was not within the corporate authority, it would be held to be 
 an individual act of the officers or servants, and the corpora- 
 
 39 
 
§§ 52, 53.] OEDINAEY BAILMENTS. [PAET I. 
 
 tion would not be liable; and so if the officers or servants did 
 not act nor pretend to act within the scope of their authority 
 to the knowledge of the bailor the bank would not be liable. 
 If, however, the accepting of the trust was within the corpo- 
 rate authority, and the officers or servants were acting within 
 the scope of their powers, then the second question, as to neg- 
 ligence or diligence resulting in loss, would determine the 
 question of liability of the corporation. 
 
 § 52. Determining negligence. — Yery many ques- 
 tions arise in determining negligence on the part of the cor- 
 poration. As in case of a bank that is the depositary of a 
 special deposit: Did the corporation furnish a suitable, fit place 
 for the keeping of the property safe from fire or from robbers? 
 If stolen by its own servants or officers in charge, did the bank 
 have knowledge that they were dishonest? Did the bank use 
 diligence in the employment of fit and proper servants? 
 
 In a Massachusetts case. Smith v. First National BanJc^ it 
 was held, in a case of special deposit which was lost from the 
 bank vaults, that in case of gratuitous bailment it must appear 
 that the corporation was guilty of gross carelessness which 
 was the result of the loss, and that this might appear from the 
 fact that the corporation did not furnish a proper place for 
 the custody of the property; or from failure to take proper 
 precautions in guarding the place; or negligence in selecting 
 suitable persons to attend to the care and custody ; or in fail- 
 ing to discharge persons after having knowledge of their un- 
 fitness. In Pennsylvania the court held, in a case where bonds 
 were deposited with the bank as a 'special deposit and were 
 stolen by the teller, that "nothing short of a knowledge of the 
 true character of the teller, or of reasonable grounds to sus- 
 pect his integrity, followed by a neglect to remove him, can 
 be said to be gross negligence without raising a contract for 
 care higher than a gratuitous bailment can create." ^ 
 
 This discussion, however, belongs to another part of our sub- 
 ject, viz., the liability of gratuitous bailees. 
 
 § 53. Honesty and good faith demanded. — Nothing short 
 of honesty and good faith will excuse the bailee in case of loss 
 
 1 99 Mass. 605-611. 2 Scott v. National Bank of Chester 
 
 Valley, 73 Pa. St. 471-79. 
 30 
 
•CH. IV.] GENERAL PRINCIPLES. [§ 54. 
 
 or injury. Every bailment relation is a contract relation, either 
 express or implied ; a contract which imposes certain responsi- 
 bilities upon the parties to the bailment, and this contract must 
 be strictly and in good faith carried out by the parties. The 
 bailor must in good faith and honestly do his duty in the mat- 
 ter of the bailment. The law will not permit him to do any- 
 thing that will impair or encroach upon the legal rights of the 
 bailee in the full possession and enjoyment of the property to 
 the extent of the bailment contract; as, for example, by depriv- 
 ing the bailee of the possession, or by injuring the property, 
 and thus making it less useful; and on the other hand, the 
 bailee is held to strict, good faith and honesty in carrjang out 
 the contract relation. He cannot sell or pledge the property 
 or otherwise deal with it in a way to injure the bailor; and 
 while in possession as bailee he will not be allowed to set up 
 a claim of ownership in himself; and should he become the 
 -owner of a title adverse to the title of the bailor, he must first 
 return the possession of the property to the bailor before he 
 will be heard in the courts to assert his own claim of title; and 
 should the bailee undertake to obtain the title adverse to the 
 bailor, the bailor could at once recover the possession of the 
 property, and the bailment contract would at once be con- 
 sidered at an end.' 
 
 § 54. Bailee may protect himself against claim of third 
 parties. — While the bailee cannot hold the property adversely 
 to the bailor to benefit himself, or obtain for himself title ad- 
 verse to the bailor, he may, in case the property is claimed, 
 and the possession demanded by a third party, protect himself 
 from damage on account of the adverse claims of the bailor 
 and the third party. (1) He may compel the parties claiming 
 title to interplead, and thus obtain judgment of the court as to 
 which of them is entitled to the property; or (2) at his peril he 
 may recognize the claim of the third party and join with him 
 to sustain his title to the property. This, however, he does at 
 Ms risk; for if the bailor should sustain his title, he could by 
 reason of the action of the bailee terminate the bailment. 
 
 ' Osgood V. Nichols, 5 Gray" (Mass.), Mioh. 393; Barron v. Landes, 1 Duv. 
 420; Burley v. Hamilton, 15 Pick. (Ky.) 299: and see cases cited 3 Am. 
 <Mass.) 40; Sinclair v. Murphy, 14 & Eng. EncyL (2d ed.) 758, 759. 
 
 31 
 
§j^ 5,:,_57.] OKDINAET BAILMENTS. [PAET I. 
 
 §55. What would excuse liability. — If the property in 
 possession of the bailee is lost, injured or destroyed by reason 
 of the act of God, the public enemy, irresistible force or in- 
 evitable accident, or by fire or robbery without the negligence 
 of the bailee, the bailee would not be liable; the degree of 
 diligence that would be required, or of negligence that would 
 render him liable, would depend upon the kind of bailment and 
 will be discussed in another chapter. "We here state the general 
 rule in cases where it is understood that the bailee acted in 
 good faith. 
 
 § 56. Unlawful tortious possession would render bailee 
 liable for injury or loss. — If the bailee has obtained posses- 
 sion of the property unlawfully or tortiously, then none of the 
 conditions stated in the last paragraph would excuse him from 
 liability; he would be liable absolutely. The usual example 
 given is, if one unlawfully or tortiously obtaining possession 
 of my boat and losing it in a storm, no matter how careful he 
 may have been in its management, no matter if the loss was 
 occasioned by the act of God, because of the tortious unlawful 
 possession, be would be liable at all events. And so the tor- 
 tious departure from the terms of the contract, and misappro- 
 priating the property or misusing it, renders the bailee liable. 
 
 § 57. Rights and duties as to third parties.— (1) Bailor 
 llalAe to, fo?^ furnishing certain necessaries. As we have seen, 
 a gratuitous bailee is entitled to reimbursement which he has 
 necessarily made or incurred for the preservation of the prop- 
 erty. It therefore follows that third persons who have furnished 
 to such a bailee that which is necessary for the preservation of 
 the propert}' and for the carrying out of the bailment would 
 be entitled to be reimbursed, and, upon failure of the bailor to 
 do so, the party could sustain an action against him. The rule 
 might be different in other classes of bailment and would de- 
 pend somewhat upon the contract. 
 
 (2) Bailor''s action against, for injuries or for property . The 
 possession of the property, and often the use of it, is with the 
 bailee; it therefore follows that the bailor could not sustain 
 trespass or replevin; but should the loss or injury be permanent 
 or so serious as to injure the value of the property, the bailor 
 could sustain a special action for the same.' 
 
 1 Lexington v. Kidd, 7 Dana [Ky.), 245. 
 33 
 
CII. IV.] GENERAL PEINCIPLES. [§§ 58, 59, 
 
 § 58. Bailee against third parties. — The bailee is entitled 
 to the possession of the property. This is the very essence of 
 his rights as a bailee; he therefore has a special right or prop- 
 erty in the chattel to the extent of his bailment contract and 
 can protect it against wrong-doers, loss or injury. Therefore, 
 if the chattel be lost by a common carrier ' or innkeeper,'^ or is 
 injured or converted by a trespasser,' the bailee may sustain 
 an action for the property. In such cases the damages are not 
 confined to the mere interest of the bailee, but in case of injury 
 or loss of the property he may recover its full value, together 
 with any special damage to him, and for all beyond his own 
 interest he would be a trustee for the bailor or owner.* 
 
 § 59. Modifjing or enlarging responsibility by contract. — 
 The bailee may by contract enlarge his liability to the extent 
 of becoming an insurer of the property against the perils to 
 which it is understood by the parties it is to be exposed ; and 
 the contract may be express or implied, and the bailment or 
 compensation to be received therefor is a sufficient considera- 
 tion for such an undertaking.' It is not infrequently the case 
 that the bailee by contract undertakes to return the property 
 in as good condition as when taken by him, thus enlarging 
 his liability.' 
 
 In Beinstine v. Watts it was held that the reception of mer- 
 chandise by a bailee under an invoice distinctly stating that 
 such merchandise is at the risk of the bailee against loss by 
 fire, or otherwise, until returned, no other agreement appear- 
 ing, conclusively implies a promise upon the part of the bailee 
 to assume such risk.' And in Drake v. White ^ it Avas held 
 that a creditor who stipulated with his debtor, upon receiving 
 personal property as security, that he would return the prop- 
 erty or pay for it if the debt was paid, would be held to that 
 contract, the court saying, " there can be no doubt, if a cred- 
 
 iMoran v. Portland Steam Packet ^Littlefleld v.Biddeford,89Me. 310; 
 
 Co., 35 Me. 55; Elkins v. Burton Ry. Woodman v. Notingham, 49 N. H. 
 
 Co., 19 N. H. 337. 387. 
 
 2 Chamberlain v. West, 37 Minn. 54. » Strum v. Baker, 150 U. S. 313. 
 
 3 Peoria Ry. Co. v. Molntyre, 39 N. " Hunt v. Wyman, 100 Mass. 198. 
 y. 398; Little v. Fossett, 34 Me. 545; '84 Me. 189; Vigo AgrL Society v. 
 Faulkner v. Brown, 13 Wend. 63; Brumfiel, 103 Ind. 146. 
 
 Knight V. Davis Car Co., 71 Fed. 663. ^ 117 Mass. 10. 
 See cases cited in 3 Encyl. 761. 
 
 3 33 
 
§§ 60, 61.] OBDINAET BAILMENTS. [PAET I. 
 
 itor sees fit to accept a deposit of security upon such terms, 
 and to place himself in the position of an insurer of its safety, 
 he can do so." 
 
 § 60. How far can the bailee lessen his responsibility by 
 contract. — Upon this there is perhaps not so great unanimity 
 among the authorities; it is, however, settled that the contract 
 must not go to the extent that it may be said to be in contra- 
 vention of positive law, or against public policy, or it will be 
 disregarded : and so it follows that a bailee cannot contract 
 against his own fraud, nor that he will not be liable for gross 
 negligence, for that is held to be equivalent to fraud. For, 
 says Judge Story, " The law will not tolerate such an indecency 
 and immorality as that a man shall contract to be safely dis- 
 honest. It therefore declares all such contracts utterly void, 
 and holds the bailee liable in the same manner and to the 
 same extent as if no such contract ever existed." ^ 
 
 § 61. Redelivery to bailor. — With some few exceptions, 
 which will be noted, it is the duty of the bailee, when the ob- 
 ject of the bailment has been accomplished, to return the prop- 
 erty to the bailor, or to the person designated by the contract 
 of bailment, together with all accessions to it during the term, 
 and upon refusal to do so, unless he has some legal excuse for 
 not redelivering the property, he will be guiltj'^ of conversion, 
 and the bailor can recover the value of the property, or by an 
 action of replevin the specific property.^ As a general rule 
 the bailor has a right to the redelivery of the specific property 
 bailed and cannot be compelled to accept other property of 
 the same kind of equal value and quantity in lieu of it. In 
 Athins V. Gamble ' the court say : " The reason of the rule is 
 obvious. The owner may have had special reasons for desiring 
 to retain that specific chattel; and there may be reasons why 
 he attached a peculiar value to it beyond the value of other 
 chattels of a precisely similar kind. If his desire in this respect 
 be the result of mere caprice, he is entitled to be gratified in 
 the exercise of it. . . . Hence the owner of such chattel 
 cannot be compelled to accept in lieu of it another which ap- 
 
 1 Story, Bailments, sec. 33; Lan- See, 51 N. J. L. 378; Holbrook v. 
 caster Co. Mut. L Bank v. Smith, 63 Wight, 24 Weed. 169. 
 
 Pa. St. 47. 3 43 Cal 86. 
 
 2 Ball V. Liney, 48 N. Y. 9; Dale v. 
 
 34 
 
CH. IV.] GETTEKAL PEINCIPLES. [§ 62. 
 
 pears to be precisely similar and of equal value. , . . But, 
 we think, the reason of the rule ceases when applied to stocks. 
 It is impossible that any sane person should have centered his 
 affections upon a particular stock certificate, or that any vio- 
 lence could be done to his feelings by requiring him to accept 
 another certificate of precisely similar character in lieu of it. His 
 own certificate was only the evidence that he owned an undi- 
 vided interest in the capital and business of the corporation. 
 Another certificate of the same kind, for the same amount of 
 stock, would entitle him to precisely the same rights as the 
 former certificate. Each would be a precise equivalent of the 
 other, and it is certain he could suffer no pecuniary loss by the 
 transaction. . . . For these reasons, we think, a different 
 rule should govern the conversion of a certificate of stock ; and 
 if the wrong-doer was at all times read}' and willing to trans- 
 fer to the owner an equivalent number of similar shares in the 
 same company, by a proper and valid certificate, it would pre- 
 sent a case for nominal damages only." 
 
 § 62. Not always required to redeliver the specific prop- 
 erty. — It goes without saying that it is not always expected 
 that the bailee will redeliver the specific thing bailed; as when 
 wheat is taken to the miller to be ground into flour, or cloth 
 to the tailor to be made into clothing ; from the very nature of 
 the contract it is understood that the specific thing is not to be 
 redelivered, but delivery in its changed form is expected. And 
 so in case of property turned over to a factor, he is expected 
 to dispose of the property, but the property or money received 
 for it he is required to deliver to the bailor. And, as we have 
 seen, where grain is delivered to a warehouseman, or an elevator, 
 while the same identical grain is not to be returned, grain of like 
 quality, quantity and value is expected to be returned, and the 
 bailee is liable if he fails to do so ; ' and the courts have held 
 that in case of wheat delivered to the miller to be manufact- 
 ured into flour, it is not necessary to return flour made from 
 the same identical wheat, but flour may be delivered made from 
 any wheat in the mill of equal quality and kind.^ 
 
 lAshbey v.West,3Ind.l70; Foster ^i^giebrightv. Hammond,19 0hio, 
 V. Pettebone, 7 N. Y. 433; Stangher 337. 
 V. Green, 10 Am. Deo. 488. 
 
 85 
 
8 63.] OEDINAEY BAILMENTS. [PAET I. 
 
 §63. Excuses for non-delivery. — 1st. When the property has 
 leen destroyed or lost without the fault of the hailee. As we have 
 seen, the bailee is excused from liability when the loss or de- 
 struction of the property is by the act of God, the public enemy, 
 irresistible force, inevitable accident, or by fire or robbery, and 
 without the fault or negligence of the bailee.^ 
 
 '2d. The delivery of the property to the true owner. If the 
 true owner of the property should demand it of the bailee, he 
 would be obliged to deliver it to such owner or subject himself 
 to an action for its recover}^, and if the property was delivered 
 to the true owner it would be a complete defense to an action 
 by the bailor for the property bailed ; but the burden of prov- 
 ing that the person to whom he delivered the property was 
 the true owner would be upon the baileee, and such a delivery 
 would be at his risk.^ 
 
 3d. That he had leen deprived, of the property hy due process of 
 law and therefore cannot redeliver the property to the bailor. 
 But the bailee would not be protected by a process or seizure 
 in a case where the bailor was not made a part}"-;' and if he 
 should permit the goods to be levied on or attached as his own, 
 or as the property of a third party, he would not be exoner- 
 ated, for delivery under such a process would not afford him 
 protection. In such case it would always be the duty of the 
 bailee to protect the interests of his bailor.* 
 
 The bailee is not required to determine whether the judg- 
 ment upon which the process is issued is correct, nor whether 
 the statute upon which the proceedings were had is constitu- 
 tional, but he must at his peril see to it that the process upon 
 which the property is seized is a valid process; that upon its 
 face it is regular, and that the court had jurisdiction to issue 
 the writ or process. And if the property upon a defective writ 
 should be forcibly taken from him, he should at once institute 
 proceedings to recover it.^ This principle of the law is upon 
 the theory that the person who takes the property from the 
 bailee without valid process is a trespasser, and his tortious 
 
 i^nte, §55. 35; Rogers v. Weir, 34 N. Y. 463: 
 
 2 Calhoun v. Thompson, 56 Ala. 166; Kelly v. Patohell, 5 W. Va. 585. 
 Powell V. Robinson, 76 Ala. 433. ^ Welles v. Thornton, 45 Barb. 
 
 3 Burton v. Wilkerson, 18 Vt. 186. (N. Y.) 390. 
 
 4 Bernard v. Knobbs, 8 Daly (N. Y.), 
 
 36 
 
OH. IV.] GENERAL PEINOIFLES. [§ 63. 
 
 acts canuot be considered the act of the law, but the mere act 
 of a trespasser, and against such acts the bailee is bound to 
 protect the property.' 
 
 In Roberts v. Stuyvesant ^ the court say : " It is no doubt true 
 that a bailee for reward, such as the defendant was, may ex- 
 cuse himself for a failure to deliver the property to the bailor 
 when called for, by showing that the property was taken out 
 of his custody under the authority of valid legal process, and 
 that within a reasonable time he gave notice of that fact to the 
 owner. . . . But in this case the persons who took the prop- 
 erty had no process that authorized them todo so, and hence the 
 defendant had the right to make such resistance to it as they 
 would have had if the same parties attempted to take it without 
 any process whatever, and, if overcome by superior force, they 
 could pursue and reclaim it by legal proceedings or otherwise 
 in the same manner as if the search-warrant had not been pro- 
 cured. When property in the custody of a bailee is demanded 
 by third persons, under color of process, it becomes his duty to 
 ascertain whether the process is such as requires him to sur- 
 render the property, and if it is not, then it is his right and 
 duty to refuse and to offer such resistance to the taking, and 
 adopt such measures for reclaiming it, if taken, as a prudent 
 and intelligent man would, if it had been demanded and taken 
 under a claim of right to the property by another without 
 legal process. The defendant did not discharge the duty that 
 it owed to the bailor and owner of the property by merely 
 making a formal protest against entering the vaults where the 
 property was. A person who would allow his own property 
 to be taken from him under like circumstances, and without 
 doing more to prevent such a result, or to repossess himself of 
 it when taken, could scarcely be called a prudent man. It fol- 
 lows that the defendant has not shown that the property was 
 taken from its possession by legal process so as to excuse its loss- 
 . . . While a bailee who permits the property of the bailor 
 to be taken by a stranger may excuse himself by showing that 
 he yielded to the power of legal process, it does not follow 
 that a seizure under such process, after the bailee has negli- 
 gently allowed the property to pass into the hands of tres- 
 
 i Stephens v. Vaughn, 20 Am. Deo. 316. 2 133 N. Y. 65. 
 
 37 
 
§ 64.] OEDINAEY BAILMENTS. [PAET I. 
 
 passers, or persons who have no right to it, will be any protec- 
 tion to him in an action by the owner. When the defendant 
 permitted the property to be taken from its custody, without 
 proper diligence and care to retain or reclaim it, the plaintiff's 
 cause of action accrued and could not be defeated by the ac- 
 tion of parties seeking to establish claims against the owner. 
 The rule in such cases seems to be that when a bailee is sued 
 by the owner for the conversion or negligent loss of the prop- 
 erty bailed, it is not a defense or bar to the action to show 
 that after it went into the possession of others it was levied 
 upon under process against the owner." 
 
 If-th. That the hailment property is claimed and demanded of him 
 ly other persons. Of course such a claim or demand, if it is 
 clearly and to the knowledge of the bailee without foundation 
 and entirely groundless, would not excuse the bailee; but if 
 there appears to be reason for the claim, and to resist it would 
 subject the bailee to damages by way of litigation or other- 
 wise, in such case the bailee is under no obligation to take that 
 risk and redeliver the property to the bailor; he may in such 
 case require the contesting claimants to settle the question of 
 who has the legal title by filing a bill for interpleader. 
 
 5th. When, excused hy the terms of the contract. When by the 
 terms of the contract, either express or implied, the bailee is 
 excused from redelivering to the bailor, but is to deliver to 
 some other person. As, for example, to the agent of the bailor, 
 or to a person designated and agreed upon bj"^ the parties. 
 
 § 64. Conversion of the property. — If the bailee has no 
 valid excuse for not doing so, it is his duty at the termination 
 and accomplishment of the bailment, upon the demand of the 
 bailor, to redeliver the property to him, and a refusal to do so 
 would be a conversion of the subject of the bailment. If the 
 bailee should sell the subject of the bailment, or do any unau- 
 thorized act with reference to it, be guilty of bad faith, or 
 fraud, or violate the bailment contract, the bailor would have 
 the right to terminate the relation and demand the return of the 
 property, and if the bailee should fail to redeliver it he would 
 be liable as for a conversion of the property, and the bailor 
 would have the right to pursue the property and retake it, even 
 from a lonafide purchaser, and upon demand and refusal could 
 sustain trover against such purchaser, for the reason that the 
 
 38 
 
CH. IV.J GENERAL rEINCIPLES. [§§ 65-67. 
 
 bailor had no title to the property and could, therefore, con- 
 vey none, and the title of the bailor would not be impaired by 
 the pretended sale.^ 
 
 " The law is well settled that a bailee cannot make a valid 
 sale of property which is the subject of the bailment, even to 
 a 'bona fide purchaser who may buy in ignorance of the vendor's 
 want of title." ^ 
 
 § 65. Bailee's right to compensation and to a lien upon 
 the property. — If the bailee has bestowed any service upon 
 the thing bailed to him he is entitled to compensation by rea- 
 son of the express contract; and if there is no such contract, 
 then by an implied promise to pay. And the law presumes 
 that the party for whom the services were rendered will pay 
 what the services were reasonably worth, and for the payment 
 of such sura the bailee may have a lien upon the property and 
 may detain it until the amount is paid. Should the goods be 
 taken from the bailee before such compensation is paid, a bailee 
 who has a lien upon the property may maintain an action of 
 trespass against his bailor.' 
 
 § 66. Agreement for compensation, express or implied, 
 necessary to create lien. — If there is no agreement or under- 
 standing that the bailee is to receive compensation, and no 
 circumstances that would naturally imply such an understand- 
 ing, there could be no lien. As, for example, " a person not 
 engaged in the business of warehousing or storage who per- 
 mits another to deposit a chattel in an unoccupied room of his 
 premises does not thereby acquire any lien on such chattel for 
 the value of the storage." * 
 
 § 67. If no statute or express contract creating common- 
 law lien. — If the statutes do not create a lien and there is no 
 express contract giving to the bailee a lien upon the property, 
 then the bailee will hold the property by virtue of the com- 
 mon-law lien if the facts are such as to create it. A common- 
 law lien has been defined to be "a right to retain possession 
 of property belonging to another until a claim of the party in 
 
 1 Calhoun v. Thompson, 56 Ala. 166. ^ Burdick v. Murray, 3 Vt. 302, 21 
 
 ^Medlin v. Wilkinson, 81 Ala. 147; Am. Deo. 588. 
 Lovejoy v. Jones, 30 N. H. 164; John- < Alt v. Weidenberg, 6 Bosw. (N. Y.) 
 son V. Miller, 16 Ohio, 431; Dunham 176. 
 V. Lee, 24 Vt. 433. 
 
 39 
 
§ 68.] OBDINAEY BAILMENTS. [PAET I. 
 
 possession against the owner is satisfied, and it arises by oper- 
 ation of law witliout any agreement of the parties." ^ 
 
 § 68. Two kinds of liens. — The common-law liens are gen- 
 erally of two kinds: First, Particular or specific. Second, 
 General. 
 
 (1) A particular or speoifio lien is one that attaches to a par- 
 ticular piece of personal property upon which, in carrying out 
 the bailment contract, the bailee has performed services which 
 have bettered the property. This lien attaches to specific ar- 
 ticles in the possession of the bailee. 
 
 (2) A general lien is a lien upon the property generally of 
 the bailee, and for transactions of a nature analogous to that 
 which brought the particular goods retained into the bailee's 
 possession. It is the retaining of property, not only for serv- 
 ices upon it, but for services and work upon other articles of 
 the bailee. This lien does not attach except by express con- 
 tract or agreement. 
 
 This question is ably discussed in Hensel v. Ndble^ the court 
 saying: " It cannot be doubted that a lien is given by the com- 
 mon law to a tradesman or artisan who in the course of his 
 trade or occupation receives personal property upon which he 
 bestows labor; and his right to a lien on the property is equaUy 
 good whether there be an agreement for a stipulated price or 
 only an implied contract to pay a reasonable compensation. 
 It is equally clear, on principle as well as authority, that when 
 there is an entire contract for making or repairing several ar- 
 ticles for a gross sum, the tradesman has a lien on any one or 
 more of the articles in his possession, not only for a propor- 
 tionate part of the sum agreed upon for i-epairing the whole, 
 but for such amount as he may be entitled to for labor bestowed 
 upon all the articles embraced in the contract. ... If the 
 contract was entire, and the defendants in pursuance of it had 
 not only repaired one wheel, but also bestowed labor and in- 
 curred expense for the purpose of repairing the others, their 
 lien on the one wheel in their possession was good for the 
 Avhole amount of their labor and expense done and incurred 
 in pursuance of their contract, not exceeding the sura fixed 
 by the agreement." 
 
 1 Lawson, Bailments, 55. 2 95 Pa. St. 345. 
 
 40 
 
«H. IV.] GENERAL PEINOIPLES, [§§ 69-71. 
 
 § 69. Delivery to the bailee for tlie purpose of tlie bail- 
 ment necessary to the establishment of the lien The prop- 
 erty must have been delivered by the owner or his duly au- 
 thorized agent to the bailee for the purpose of the bailment, 
 and if it come to the possession of the bailee in any other way 
 he can have no lien. The possession obtained without the con- 
 sent of the owner, or by the bailee taking the property with- 
 out authority, would not support the lien, except in case of 
 finding the property. It is not necessary, however, that all of 
 the property should be delivered at one time; if it came to him 
 by different parcels and at different times it would be suflBcient. 
 jSTor need there be an actual delivery. " The delivery may be 
 symbolical or of a part of the whole. The delivery of a key, 
 where the goods are locked up, is so far a delivery of the goods 
 that it will support an action of trespass against a subsequent 
 purchaser who gets possession of them." A constructive pos- 
 session is sufficient.^ 
 
 § 70. Possession of the property an essential. — ISTo lien 
 can be created, except by express contract, upon property that 
 has not been delivered, and which is not in the possession, act- 
 ual or constructive, of the bailee. Possession is an essential to 
 a common-law lien. It attaches onl}"- to property delivered for 
 the purpose of the bailment, and upon which the bailee has, in 
 carrying out the object of the bailment, performed labor. 
 
 § 71. The finder of property may have lien. — Property that 
 is found comes lawfully into the possession of the finder, and 
 he becomes a bailee of it, and for any labor that it is necessary 
 to bestow upon it for its preservation, if. performed in good 
 faith, the finder has a lien. In the case of CAase v. Corcoran "- 
 the property was a boat found adrift with holes in the bottom 
 and the keel nearly demolished, and in danger of sinking or 
 being crushed between plaintiff's boat and the piles of a bridge, 
 nnless the plaintiff saved it. The court say : " The claim of the 
 plaintiff is therefore to be regulated by the common law. It 
 is not a claim for salvage for saving the boat when adrift 
 and in danger on tide water; and does not present the question 
 whether the plaintiff had any lien upon the boat, or could re- 
 cover for salvage services in an action at common law. His 
 
 1 Nevan v. Roup, 8 Iowa, 207. 2 106 Mass. 288. 
 
 41 
 
§§ 72, 73.] OEDINAEY BAILMENTS. [PAET I. 
 
 claim is for the reasonable expenses of keeping and repairing 
 the boat after he had brought it to the shore; and the single 
 question is, whether a promise is to be implied by law from 
 the owner of a boat, upon taking it from a person who has found 
 it adrift on tide water and brought it ashore, to pay him for 
 the necessary expenses of preserving the boat while in his pos- 
 session. "We are of opinion that such a promise is to be im- 
 plied. The plaintiff, as the finder of the boat, had the lawful 
 possession of it, and the right to do what was necessary for its 
 preservation. Whatever may have been the liability of the 
 owuer if he had chosen to let the finder retain the boat, by 
 taking it from him he made himself liable to pay the rea- 
 sonable expenses incurred in keeping and repairing it." And 
 it has been held that the finder has a lien upon the property 
 for a certain reward offered by the owner,' but the reward 
 must be certain ; and if it is simply the offer of a liberal reward^ 
 not stating the amount, no lien will attach for it.^ 
 
 § 72. Extinction of the lien — Payment or tender. — The 
 basis of the bailee's lien is his claim for reasonable compensa- 
 tion ; it therefore follows that payment of that amount by the 
 bailor, or tender of the amount by the bailor to the bailee, 
 would extinguish the lien ; and if the bailee upon such payment 
 or tender should still refuse to deliver the property, he would 
 be liable in an action for conversion. 
 
 § 73. The lieu may be waived — 
 
 (a) Bij placing the refusal to deliver the property when de- 
 manded upon some otJwr ground. The claim which supports 
 the bailee's lien, as we have seen, is his right to reasonable 
 compensation; and he will not be allowed to retain the prop- 
 erty for any other reason, not even for other debts due and 
 owing to him from the bailor; and if he does not claim to re- 
 tain the property as security for his reasonable compensation 
 for care of it, or repairing it, or performing some work or im- 
 provements upon it which would entitle him to a lien, he 
 waives his lien and renders himself. liable to an action of re- 
 plevin for the recovery of the specific property or of trover for 
 its value, for he is guilty of conversion. 
 
 1 Went worth v. Day, 3 Mete. 352. 2 Wilson v. Gayson, 8 Gill (Md.), 213. 
 
 43 
 
CH. IV.] GENEEAL PEINCIPLES. [§ 73. 
 
 In the case of Hamilton v. McLaughlin'^ the court says: "The 
 only lien which the defendant claims is for keeping the horse 
 after notice to the plaintiff and request to take it away. Whether 
 the evidence was sufficient to prove that he had such a lien, 
 and whether the instructions asked in regard to it were sound, 
 we do not find it necessary to consider. It is immaterial that 
 the defendant had a lien if he waived it at the time of the de- 
 mand. A claim to hold the possession of the property, and a 
 refusal to deliver it on demand under and in assertion of a 
 right other than that given by the lien, would be evidence of 
 a conversion." The principle of estoppel may also be invoked 
 in such a case. The bailee, having placed his claim upon some 
 other and different reason than his claim for compensation, 
 would not be heard to make a different claim in an action 
 against him to recover the possession o;" value of the property 
 detained by him. 
 
 (b) The iailee may also waive his lien hy an agreement to give 
 credit. The lien of the bailee is further based upon the fact 
 that the compensation is due and payable at the present time. 
 If, therefore, the time of payment is extended by the giving 
 of credit, the lien would be extinguished, as in that case the 
 compensation would be an indebtedness against the bailee, 
 payable at some future time and not dependent upon the lien, 
 and so the courts hold that the giving of credit would be in- 
 consistent with holding of the property as security for the 
 payment.^ "The general principle is that an agreement to 
 give credit for a special contract for a particular mode of pay- 
 ment inconsistent with the lien is a waiver of it. The opera- 
 tion of a lien is to place the property in pledge for the pay- 
 ment of the debt; and where the party agrees to give time for 
 payment, or agrees to receive payment in a particular mode 
 inconsistent with the existence of such a pledge, it is evidence, 
 if nothing appears to the contrary, that he did not intend to 
 rely upon the pledge of the goods in relation to which the 
 debt arose to secure the payment."^ 
 
 ' And the lien of the bailee will be considered as waived — 
 
 (c) When he voluntarily parts with the possession of the prop- 
 erty. It has already been noticed that one of the requisites of 
 
 1 145 Mass. 20. ' Stoddard Mfg. Co. v. Huntly, 8 
 
 2 McMaster v. Merrick, 41 Mich. 505. N. H. 441. 
 
 43 
 
§ 7-lr.J OEDINAEY BAILMENTS. [pART I. 
 
 the lien of the bailee is the possession of the goods upon which 
 he asserts his lien. Possession being necessary, it follows that if 
 the bailee should voluntarily part with it and allow the prop- 
 erty to go beyond his control, his lien would be lost, and it 
 would make no difference if the goods were delivered to a third 
 party with an agreement that the lien was to continue, unless, 
 perhaps, the goods were placed in the hands of a third party 
 who was under the control of the bailee, and so a wrongful 
 sale or pledge of the property would destroy the lien of the 
 bailee. It has, however, been held that a lien acquired by a 
 partnership will not be lost by a dissolution of the partnership, 
 or by the assignment of the interest of one of the partners to 
 the other. This does not so much depend upon the fact that 
 the bailee has sold or pledged the property ; the decisive mat- 
 ter is that he has parted with the possession. "The conduct 
 of the bailee in parting with his possession is inconsistent 
 with the preservation of his lien, and where that is proved, 
 the presumption is that he has waived or abandoned it, un- 
 less his conduct in so doing is satisfactorily explained." ^ And 
 there could be no explanation that would avoid the extin- 
 guishment of the lien if the rights of third parties had inter- 
 vened. 
 
 § 74. Lien once lost cannot be revived. — The lien is sup- 
 ported and rests upon the fact of continued possession; that 
 the property is retained in the hands of the bailee as security 
 for his compensation. This possession once relinquished, the 
 lien is necessarily at an end, and it could not be revived byre- 
 possessing himself of the property. The parting with the 
 possession raises the presumption that he thereby waives or 
 abandons his lien.- If however, the bailor should obtain pos- 
 session of the property by fraud or force, or by any wrongful 
 recovery of the same, the bailee would not forfeit his lien, for 
 the law would not permit the bailor to take advantage of his 
 own wrong:. 
 
 In Bi'uley v. Ross et al.^ it was held that where property had 
 been pledged as security for a debt and the pledgor obtained 
 possession thereof for a special purpose, and with the consent 
 of the pledgee thereupon took the property out of the countj, 
 
 1 Robinson v. Lariby, 63 Me. 116. 2 Ibid. 3 57 Iowa, 651. 
 
 44 
 
OH. IV.] GENEEAL PRINCIPLES. [§§ Y5, 76. 
 
 the pledgee could not be deemed to have released his lieu 
 thereiu, if the evidence showed that the pledgor obtained the 
 possession of the thing pledged with a felonious design to de- 
 prive the pledgee of his security. 
 
 And in Walcott v. Keith ^ it was held that when possession, so 
 essential not only to the creation but also to the continuance 
 of the lien created, is obtained by the wrongful act of the 
 pledgor and without the assent of the pledgee, it will not work 
 a forfeiture of the lien, nor would it defeat the bailee's right of 
 action to recover damages for an injury to or conversion of the 
 pledge. 
 
 § 75. Right of the bailor to compensation. — The right of 
 the bailor to compensation may arise from express contract 
 or by implication. If the circumstances were such that it 
 would reasonably be presumed that the bailee was to pay the 
 bailor compensation for the use of the property, a contract to 
 make such payment would arise by implication; and it has been 
 held that the fact that the bailment was made under the mutual 
 expectation that the bailee would purchase the chattel did not 
 raise a presumption that the use was gratuitously given.^ 
 
 § 76. Enforcement of the lien of bailee. — The bailee can- 
 not enforce or foreclose his lien by a sale of the property ; his 
 lien is a common-law lien, in the absence of a statute upon the 
 subject, and it only gives to him the right to hold the property 
 as security for his debt against the bailor. This has, however, 
 been regulated in some of the states by statute permitting a 
 public sale of the property, after proper notice of the time and 
 place, to satisfy the amount of the lien. 
 
 1 23 N. H. 196. 2 Rider v. Union India Rubber Co., 28 N. J. 379. 
 
 45 
 
CHAPTEE Y. 
 
 TERMINATION OF THE BAILMENT. 
 
 § 77. The several ways. 
 
 78. By expiration of the time for 
 
 which the property was 
 bailed. 
 
 79. By reason of the accomplish- 
 
 ment of the object. 
 
 80. By act of parties. 
 
 81. By operation of law. 
 
 83. By destruction of the bailed 
 property. 
 
 83. By death of the bailee. 
 
 84. By incompetency of the parties. 
 
 § 77. The several ways. — The several circumstances and 
 conditions that will terminate the bailment relation have been 
 more or less discussed in the previous pages; our intention now 
 is to classify and briefly discuss the'm. 
 
 Bailments may be terminated in the following ways: 
 
 1st. By expiration of the time for which the property was 
 bailed. 
 
 2d. By reason of the accomplishment of the object. 
 3d. By acts of the parties. 
 
 4th. By operation of law. 
 
 6th. By destruction of the property. 
 
 Tith. If bailment is gratuitous, on death of bailee. 
 
 7th. By incompetency of the parties. 
 
 § 78. (1st) By expiration oftlie time for which the property 
 was bailed. — This needs no discussion. It the contract of bail- 
 ment is limited as to time, it goes without saying that when 
 that time expires the bailment will be at an end, there being 
 no longer any agreement, express or implied, to support the 
 bailment; provided, always, the parties act upon it by a re- 
 delivery of the property, or a sale, or a bailment of it. 
 
 g 79. (2d) By reason of the accomplishment of the object.— 
 When the object of the bailment has been accomplished there 
 is no longer any reason for continuing the relation, and either 
 party could bring it to an end ; the bailor by demanding the 
 return of the bailed goods, or the bailee by tendering back the 
 chattels in his possession as bailee. The contract would be ex- 
 ecuted and the relation of bailor and bailee could at once be 
 
 46 
 
OH. v.] TERMINATION OF BAILMENT. [§ 80. 
 
 ended. What we have said is, of course, presuming that the 
 parties have no legal excuse for not redelivering the property. 
 *' It is obvious that a bailee, whatever the character of the bail- 
 ment may be, when its purpose has been fully satisfied and 
 performed, is bound, upon request, to redeliver the thing bailed 
 to its lawful owner. This is necessarily implied in all cases 
 from the nature of the contract of payment. The authorities 
 are uniform to the effect that such redelivery may be excused 
 in the case of a bailment, mutually beneficial to both parties, 
 by proof that the deposit has been lost or destroyed without 
 negligence, or want of such care on the part of a bailee as 
 prudent men under similar circumstances commonly take of 
 their own goods. In case of gratuitous bailments, however, 
 the bailee is liable only when chargeable with gross neglect. 
 It necessarily follows from the nature of the obligation and 
 the refusal to return the property, that the burden of showing 
 the circumstances of the loss rests upon the bailee, and, unless 
 the evidence shows the exercise of due care by him according 
 to the nature of the payment, he will be held responsible for 
 the breach of his contract to return the property bailed." ' 
 
 § 80. (3(1) By act of parties. — 
 
 {a) On demand of hailor. If the bailment is gratuitous, as a 
 general rule the bailee has no right to the possession of the 
 bailed property as against the bailor. In such case there is no 
 •consideration moving between the parties upon which a con- 
 tract for use or possession can be implied for a greater time 
 than the bailor may choose to allow the bailee to remain in the 
 use or possession of the property. But while it is true that in 
 such kind of bailments the bailor may revoke the bailment at 
 his will, he cannot be unreasonable; as, for example, when 
 the object of the bailment is but partially accomplished and 
 to at once terminate it would be to impose upon the bailee an 
 injury more or less serious. As, for example, where ^ "The 
 ■owner of a pair of horses lends them to his neighbor to carry 
 a load of provisions to a particular market, he cannot on the 
 way meet him and demand the immediate possession of the 
 team, leaving the borrower to sustain the injury resulting from 
 such an abrupt and unexpected termination of the loan." Such 
 
 1 Ouderkirk V. C. N. Bank, 119 N. Y. SLawson on Bailments, 60; Ed- 
 ^63; and see cases cited. wards. Bailments, 144 
 
 47 
 
g go.] OEDINAEY BAILMENTS. [PAET I. 
 
 a demand would be unreasonable; if the demand is reason- 
 able, however, the bailor may terminate the bailment by such 
 demand. The bailments that can be thus terminated on de- 
 mand by the bailor and at his option are mandatum or depos- 
 itum. 
 
 {h) Bailor may terminate, when. — And when by the agree- 
 ment creating the relation no time is fixed for the accomplish- 
 ment of the bailment, the bailor may terminate by a demand 
 of the property, and if the bailee does not return it within a 
 reasonable time the bailment will be considered at an end. 
 What under all the circumstances Avould be a reasonable time 
 is a question for the jury.^ 
 
 (c) Where tlie ha ilee agrees to return the froperty in a fixed 
 time and fails, the bailor, for the purpose of terminating the 
 relation, need not make any demand; the failure to so rede- 
 liver the property terminates the bailment, and the bailee will 
 be considered as having converted the property.^ 
 
 (d) When hy agreement the hailor is to return the lailed prop- 
 erty at a partiridar place and fails. If by the agreement 
 the bailor is to return the subject of the bailment at a particu- 
 lar place, and makes a general refusal to redeliver the goods, 
 the bailor may consider the bailment relation at an end, and 
 is entitled to at once proceed to recover the property as though 
 it had been converted by the bailee. And the fact that a 
 demand for the property was made at a different place will 
 make no difference.^ 
 
 (e) When declaration of ownership hy hailee not enough. It 
 has been held, however, that a declaration made by the bailee 
 to the bailor that he is the owner of the goods would not be 
 sufficient to found an action by the bailor for conversion, un- 
 less it were coupled with some action showing a determina- 
 tion to deny the bailor's title to the property; some unequivo- 
 cal act showing that he is holding the property adverse to 
 the bailor.* 
 
 if) By sale, pledge, or act of ownership hj hailee. If the 
 bailee should exercise any act of ownership adverse to the 
 
 1 Cobb V. Wallace, 5 Coldw. 539. 3 Dunlap v. Hunting, 4 Den. (N. Y.) 
 
 2Layv. Lawson, 23 Ala. 377; Clapp 643. 
 V. Nelson, 13 Tex. 370. « Green v. Harris, 3 N. 0. 210; 
 
 Knight V. Bell, 23 Ala. 198. > 
 48 
 
OH. V.J TERMINATION OF BAILMENT. [§§ 81, 82. 
 
 bailor, as by sale or pledge of the bailed property, the bailor 
 can at once terminate the bailment and demand and recover 
 the possession of his property.' 
 
 (g) Ahuse and injury of property. It is incumbent upon the 
 bailee to exercise good faith and deal fairly with the bailor; 
 and so it follows that for a violation of this duty the bailor can 
 terminate the bailment relation. Is has been held, lor exam- 
 ple, that " one who hires a horse is liable in trover for wilful 
 and immoderate fast driving by which the horse is injured."^ 
 
 (A) The bailee may terminate the hailmeni. In case of gra- 
 tuitous bailments for the sole benefit of the bailor (a commo- 
 datum), the bailee may terminate the bailment at any time by 
 returning the bailed property to the bailor. And the deposit- 
 ary in a depositum bailment may, upon reasonable notice to 
 the bailor, terminate the bailment by redelivering the deposit.' 
 
 (^) If bailment for benefit of both parties. In such kind of 
 bailments there is a contract supported by a consideration, 
 and, unless there has been some breach of the terms of the con- 
 tract, the bailment cannot be terminated by the act of the par- 
 ties; t)ut bad faith or fraud, dishonest dealing, or failure to 
 execute the trust, or for the causes already enumerated — as, for 
 example, an assumed sale or pledge of the property bailed by 
 the bailee, an unauthorized use of the property resulting in its 
 injury, or any^ unwarranted action inconsistent with the con- 
 tract of bailment — would furnish good cause for either party 
 injured to terminate the bailment; but in such cases there 
 should be notice given, by the party seeking to so terminate it, 
 to the other party, and such notice should be reasonable. 
 
 § 81. (Ith) By operation of law. — As, for example, when 
 the parties consent to the termination of the bailment, or when 
 the bailee, by purchase or otherwise, becomes the owner of the 
 subject of the bailment. 
 
 § 82. (5th) By destruction of the bailed property. — When 
 the subject of the bailment is destroyed there is no longer any- 
 
 1 Story, Bailments, sec. 413; Sar- 2 Wentworth v. McDuffie, 48 N. a 
 gent V. Gile, 8 N. H. 325; Bally v. 403. 
 
 Colby, 34 N. H. 29; King v. Bates, 57 s Roulston v. McClelland, 2 E. D. 
 N. H. 446; Swift v. Mosley, 10 Vt. Smith (N. Y.), 60. 
 208; Dunham v. Lee, 24 Vt. 483; 
 Crump V. Mitchell, 34 Miss. 449. 
 
 4 49 
 
g 83. j OEDINAEY BAILMENTS. [PAET I. 
 
 thing upon which the bailraeat can act, and it must of necessity 
 be terminated. The liabilities of the parties, however, would 
 be subject to the rules heretofore discussed. 
 
 §83. (6th) The death of the bailee. — In case of a gratuitous 
 bailment, the death of the bailee would terminate the bailment.' 
 
 In case of non-gratuitous bailments the authorities seem to 
 be somewhat at variance. Mr. Schouler says: "Whether the 
 death of either party will operate a dissolution of the bailment 
 is not definitely settled ; but such seems not to be the general 
 result when the party deceased had hired for other than for a 
 strictly personal use." ^ 
 
 Mr. Lawson says : " The death of the bailee is said to terminate 
 the bailment, and generally such an event would give the bailor 
 a right to at once reclaim his property." " It seems, however, 
 that when the 'bailment has been partly executed, the personal 
 representatives of the bailee, if they can do so, may be required 
 to complete it. Where the bailor dies, the authority or trust 
 reposed in the bailee is ended; the same as in any agency the 
 power is revoked by the death of the principal."^ Mr. Hale 
 says: " The bailment relation is in many respects one of princi- 
 pal and agent. This is especially apparent in considering the 
 effect of death upon the relation. The death of the bailor or 
 principal at once operates as revocation of authority."* 
 
 The effect of the death of the parties upon the bailment, it 
 would seem, must depend very largel}^ upon the contract creating 
 the relation. If the relation is a mutual-benefit bailment, which 
 does not depend upon the personal or professional skill of a de- 
 ceased bailee, but is such a bailment that the personal represent- 
 atives of the deceased could legally claim could be carried out 
 by them, and was valuable to the estate, in such a case there can 
 be no doubt that it would not be terminated by the death of 
 the bailee, and especially would this be true if the contract 
 had been partially executed. But if the bailed property had 
 been intrusted to the bailee because of his personal or peculiar 
 ability to perform the bailment, or if this was the reason for 
 the bailment in the mind of the bailor, and was so expressed; 
 or, if the bailee was selected because of professional skill which 
 
 ' Smiley v. Allen, 13 Allen (Mass.), 3 Lawson's Bailments, 29. 
 465. 4 Hale's Bailments, 76. 
 
 -Schouler's Bailments, see. 156. 
 
 50 
 
OH. V.J TEEMINATION OF BAILMENT. [§ 84. 
 
 the bailor was desirous of employing, then in such a case, even 
 though the bailment was a benefit bailment, or a bailment for 
 hire, the death of the bailee would terminate the bailment, at 
 the option of the bailor. If such a bailment had been per- 
 formed to the extent of completing the service or work to 
 be performed upon it for the betterment of the property, the 
 lien of the deceased bailee would attach in the hands of his 
 personal representatives, and the bailor could not terminate 
 the bailment to the extent of dispossessing them of the prop- 
 erty and thus of the lien. Discussing this question. Judge 
 Story in his work on Bailments says : ^ " How far the lender 
 may revoke the loan at his mere pleasure has been already in- 
 cidentally noticed, and it seems that by the common law all 
 such loans are deemed precarious, and during the mere will 
 and pleasure of the lender. But there are also revocations im- 
 plied by law, as by a change of the state or condition of the 
 parties. Thus, the death of the borrower will nominally oper- 
 ate as a revocation of the loan, for it is presumed to be a 
 matter of personal confidence and benefit. But if such a pre- 
 sumption does not arise from the nature and circumstances of 
 the loan, the Eoman law deems the death of the party no 
 revocation. On the other hand, the death of the lender does 
 not by the Eoman law operate as a revocation of the loan un- 
 less it is of the nature called precarious or during pleasure. 
 The general analogy of the common law would lead us to the 
 conclusion that the death of either party would amount to the 
 revocation of a gratuitous loan. Thus, if a woman after a bail- 
 ment made by her, or to her, contracts marriage, that operates 
 as a termination or revocation of the bailment." 
 
 § 84. (7th) By incompetency of the parties.— If either party 
 should become incompetent to the extent that it would render 
 him unfit to carry out the object of the bailment, the bailment 
 would terminate; as, for example, insanity of the bailee, or 
 habitual drunkenness, if to the extent that it would affect the 
 rights or duties of the parties. The determination of this ques- 
 tion would of course depend largely upon the nature of the 
 bailment and the condition of the parties. It would be a ques- 
 tion of fact for the jury under proper instructions from the 
 
 1 Story, Bailments, sec. 277. 
 51 
 
§ 84. J OEDINAET BAILMENTS. [PAET I. 
 
 court. In case of a mandate, generally, any change of the par- 
 ties, as by marriage,* or appointment of a guardian ;2 and it has 
 been held that bankruptcy of either party would terminate the 
 bailment.' 
 
 1 Story, Agency, 488-500; Story, 'Parker v. Smith, 16 East, 383; 
 Bailment, sec. 306. Minet v. Forester, 4 Taunt 541; Ex 
 
 ^ Story, Bailment, 481. parte Newhall, 3 Story, 360. 
 
 62 
 
CHAPTEE YI. 
 
 LIABILITY i^OP THE BAILOR AND BAILEE WHEN THE BAIL- 
 MENT IS FOR THE SOLE BENEFIT OF THE BAILOR. 
 
 § 85. These bailments of two kinds. 
 
 86. Mandatum. 
 
 87. Depositum, 
 
 88. Use of the deposit. 
 
 89. Special, not general deposit 
 90. 
 91. 
 93. 
 
 93. 
 
 Subject limited. 
 
 Distinction between depositum 
 
 and mandatum. 
 A contract relation. 
 
 94. The bailee's liability. 
 
 § 95. Authorities not entirely har- 
 monious. 
 
 96. For the sole benefit of bailor. 
 
 97. Even indirect benefit would 
 
 change the class of bailment. 
 
 98. Notice of facts requiring spe- 
 
 cial care. 
 
 99. Failure to obey instruction or 
 
 the terms of the bailment. 
 100. Termination of the relation 
 and bailor's remedies 
 
 §85. These bailments of two kinds. — Bailments of this 
 class are of two kinds: (1) Mandahim and (2) Depositum. 
 
 § 86. (1) Mandatum. — A delivery of goods for the purpose 
 of having some service, work or labor performed upon or 
 about them by the bailee without recompense.^ The bailor is 
 called the mandator and the bailee the mandatary. 
 
 Mandatum was a word employed by Lord Holt in the cele- 
 brated case of Cogffs v. Bernard? Its applicability has, how- 
 ever, by some of the authors been questioned. It is said to be 
 " a term apparently derived from the fiction of giving one's 
 right halnd as symbolical of delivery to another of authority to 
 act;" it meant simply to constitute a gratuitous agency some- 
 what broader than we use in the law of bailments, if indeed 
 it is applicable at all. An unpaid carrier was said to be a man- 
 datary, and so was an unpaid oral messenger. It was not con- 
 fined to personalty, nor was it necessarily occupied with the 
 property at all; but in the sense we use it, it is the gratuitous 
 doing of some act upon or about the subject of the bailment 
 by the bailee. The bailment of a thing upon which the bailee 
 is to do some work gratuitously, and return it to the bailor, or 
 gratuitously to carry the thing from place to place, seems to 
 
 ' Story's Bailments, sec. 137. 
 
 23 Ld. Raymond, \ 
 
 53 
 
§§ 87, 88.] OEDINAEY BAILMENTS. [PAET I. 
 
 corer the more modern idea of this kind of a bailment. Chan- 
 cellor Kent defines it to be, " when one undertakes without a 
 recompense to do some act for the other in respect to the thing 
 bailed." i 
 
 To create a mandate, three things are necessary. First, that 
 there should exist something that should be the subject of the 
 mandate; second, that it should be done gratuitously; and 
 third, that the parties should voluntarily intend to enter into 
 the contract. There is no particular form of entering into the 
 contract. It may be verbal or in writing, or by implication,^ 
 and, as we have seen, the contract may be terminated in sev- 
 eral ways. 
 
 § 87. (2) Deposituni. — Usually defined to be "a naked bail- 
 ment of goods to be kept by the bailee for the bailor without 
 reward, and returned when he shall require it."^ Pothier 
 defines it to be " a contract by which one of the contracting 
 parties gives a thing to another to keep, who is to do so gra- 
 tuitously, and obliges himself to return it when he shall be 
 requested." The depositary of a special deposit is bound to re- 
 turn the specific article deposited, as is said, to return the thing 
 in individuo, and in the same state in which it was received. 
 And not only is he bound to return the individual thing de- 
 posited, but as well any increase or profits that may have ac- 
 crued from it. As, for example, if an animal, any ofi^spring 
 that the animal may have born; if bonds, any interest that may 
 have accumulated from it.* 
 
 § 88. Use of the deposit.— And further, by way of bearing 
 on the definition, it may be said that as a general rule the de- 
 positary has no right to use the thing deposited with him, 
 qualified, however, by the rules already discussed ; if the use of 
 the thing is necessary for its preservation, it would be his duty 
 to use it. As to this it has been said that " the best general 
 rule on the subject is to consider whether there may or may 
 not be an implied consent on the part of the owner to the use. 
 If the use would be for the benefit of the deposit, the assent of 
 the owner may well be presumed; if the use would be indiffer- 
 
 1 2 Kfint's Com. 443. 3 Jones, Bailments, 36, 117; Story's 
 
 2 Story's Bailments, sec. 160. Bailments, sec. 41. 
 
 * Story's Bailments, sec. 99. 
 54 
 
OH. VI.] FOE SOLE BENEFIT OF BAILOE. [§§ Sit- 93. 
 
 ent, and other circumstances do not incline either way, the use 
 may be deemed not allowable.^ 
 
 § 89. Special, not general deposit. — From what has been 
 said it will be seen that the depositum refers to what is deemed 
 and generally called a specific deposit, as the depositing of 
 a special package in a bank, and not to the deposit of money 
 or property that may be returned in like kind and of equal 
 quantity and value; as general deposits of money in a bank, 
 which may be paid back in any other money of equal value. 
 
 § 90. Quasi-deposits. — The so-called quasi-deposit may also 
 be included here. It is where one comes lawfully into the 
 possession of the thing b}'^ finding. The contract relation is at 
 once implied if he takes the thing into his possession. In a 
 sense the finder is not a voluntary depositary, and yet he is if 
 he takes possession and control of the found property, and he 
 will be governed by the same rules of law as to liability. 
 
 § 91. Subject limited. — It may be said, then, thatin discuss- 
 ing the liability of the depositary in this class of bailments, 
 we are limited to the possessor of special deposits where the 
 specific property or thing is to be returned, and to that which 
 has been called ^M(3wt-deposit. 
 
 § 92. Distinction between depositum and mandatuni. — 
 The difl'erence between a deposit and a mandate is apparent 
 from what has been said. Eoth are gratuitous bailments, and 
 so far as care and diligence are required, or liability for negli- 
 gence created, both stand upon the same footing, as a general 
 rule; yet in the latter, perhaps, the circumstances might in- 
 volve a relatively diilerent diligence, and render bailee liable 
 for a relatively different negligence, because of the additional 
 duties required. A deposit, as we have seen, is a naked gratu- 
 itous keeping of the thing — a gratuitous care and custody of 
 the bailed property by the bailee for the sole benefit of the 
 bailor, and a returning of the specific thing; while a mandate 
 is more than this: it involves not only custody and care of the 
 thing, but it involves, as well, labor and service as to the thing. 
 Custody, as has been said in case of a mandate, "is merely 
 accessorial." 
 
 § 93. A contract relation. — Whether mandatum or depos- 
 itum, the relation is created by contract either express or im- 
 
 1 Jones, Bailments, 80, 81 ; Story's Bailments, sec. 90. 
 55 
 
8 91.1 OEDINARV BAILMENTS. [PAET I. 
 
 plied. And so the parties must be governed entirely by the 
 contract by which the relation is created, as to their care and 
 custody, in performing the service as well as returning the 
 property, and as to their liability in case of failure to carry out 
 the contractual relation. And this applies as well to property 
 that is found; for while it is true that the finder is created a 
 bailee by operation of law in such case, the moment he takes 
 the thing found into his possession, there is an implied contract 
 that fixes his status and regulates his liability. 
 
 § 94. The bailee's liability. — The bailment is for the sole 
 benefit of the bailor, and so, following the general rule of lia- 
 bility generally conceded, the bailee is required to exercise 
 slight diligence, and is liable only for gross negligence. It may 
 be somewhat difficult in all cases to apply this rule, for the 
 reason that it is often diificult to determine just what slight 
 diligence or gross negligence is. No fixed rule can be applied: 
 the circumstances of the particular case can only settle the 
 question; but with but one exception, which will be herein- 
 after noted, it is a question of fact for the jury to determine. 
 
 It has been held that " a mandatary, or bailee who under- 
 takes without reward to take care of the pledge, or perform 
 any duty or labor, is required to use in its performance such 
 care as men of common prudence, however inattentive, ordi- 
 narily take of their own affairs, and they will be liable only 
 for bad faith, or gross negligence, which is an omission of that 
 degree of care." ' And in the supreme court of the United 
 States in a comparatively recent case it was said: "Such 
 bailees are bound to exercise such reasonable care as men of 
 common prudence usually bestow for the protection of their 
 own property of a similar character; and that the exercise of 
 reasonable care is in all such cases the dictates of good faith; 
 and that the care usually and generally deemed necessary in 
 the community for the security of similar property under like 
 conditions would be required by the bailee in such cases, but 
 nothing more." Gross negligence, as applied to gratuitous bail- 
 ees, is defined in the same case to be "nothing more than a 
 failure to bestow the care which the property in its situation 
 demands;" and the court say further: "The omission of the 
 
 1 Kelly V. Kahn, 17 111. 170. 
 56 
 
OH. VI.J rOE SOLE BENEFIT OF BAILOR. [§§ 95-97. 
 
 reasonable care required is the negligence which creates the 
 liability, and whether this existed is a question of fact for the 
 jury to determine." * 
 
 § 95. Authorities not entirely harmonions. — As to this lia- 
 bility, and, more properly speaking, the manner of arriving at 
 it, the modern authorities do not seem to be entirely harmoni- 
 ous. There are those who would entirely ignore the degree of 
 diligence and negligence, and base the question of liability 
 upon what they assert to be more philosophical, and contend 
 that the degree of care is fixed by the mutual understanding 
 of the bailment purpose, and that any neglect of the fairly un- 
 derstood terms of the contract would render the bailee liable 
 for any injury that resulted therefrom. It may, however, be 
 said that the weight of authority is for the upholding of the 
 standard of relative diligence, and the courts are continually 
 relying upon these old rules and fixing liability by determin- 
 ing the degrees of diligence and negligence as laid down by 
 the earlier writers. 
 
 § 96. For the sole benefit of the bailor.— The bailment 
 must be for the sole benefit of the bailor; the slightest benefit 
 to the bailee would place the bailment in another class, and 
 require a greater degree of diligence to be exercised on the 
 part of the bailee. It is for this reason that the depositum or 
 this class of bailments does not include the general deposit of 
 money in a bank, and can only include the special deposit of 
 the thing; because in the former the bank bailee, from the very 
 nature of the bailment, has the right to use the deposited money 
 in its business and thus derive some benefit, and so it would 
 not be for the sole benefit of the bailor. 
 
 § 97. Even indirect benefit would change the class of bail- 
 ment. — No matter how slight the benefit, or how indirectly 
 it comes to the bailee, if there is any benefit whatever it would 
 place the bailment in another class of bailments, viz., in that 
 class where the benefit is mutual, and thus change the liabil- 
 ity of the bailee. So slight is the consideration that will 
 change the bailment from this class to a mutual-benefit bail- 
 ment, that it has been held that the mere acceding to a re- 
 quest on the part of the bailee to perform the trust of the 
 
 1 Preston v. Prathers, 137 U. S. 60 1: Gray v. Merriam, 148 111. 179. 
 
 57 
 
I 98.] OEDINAEY BAILMENTS. [PAET I. 
 
 bailor would raise the standard of liability and render the- 
 bailee liable for ordinary negligence, and require of him ordi- 
 nary diligence, upon the presumption that his request, acceded 
 to, is a benefit to him. In the case of Vigo Agricultural So- 
 ciety V. BrnmfieJd^ where the plaintiff, in compliance with an 
 invitation, sent his gun to an agricultural fair for exhibition, 
 the court held it a bailment for the benefit of both parties, re- 
 quiring ordinary care. The court say: 
 
 " The case made by the complaint is one of bailment. The 
 bailment was not a gratuitous one, for the reason that the ex- 
 hibition of the gun, in response to the invitation contained in 
 the advertisement of the appellant, constituted a consideration 
 for the undertaking. It may be true that both parties derived a 
 benefit, but this did not strip the contract of its character, that of 
 a bailment for reward. The reward was not, it is true, in money, 
 but it was nevertheless a reward in the form of an act performed 
 at the request of the bailee. An association which invites per- 
 sons to supply articles to enable it to conduct an exhibition re- 
 ceives some consideration from the person who responds to its 
 invitation by placing articles in its care for exhibition. 
 
 "Where a consideration of an indeterminate value is agreed 
 upon by the parties, the courts will not undertake to deter- 
 mine its adequacy, but will respect the judgment of the parties 
 and enforce their contract." 
 
 § 98. Notice of facts requiring special care. — "While it is 
 true that the bailee in this class of bailments is only held to 
 slight diligence and answerable for gross negligence, we must 
 always keep in mind that slight diligence is more or less modi- 
 fied or enlarged by particular circumstances, as shown in" our 
 discussion of definitions of diligence and negligence. So where 
 the bailee has had notice of facts with reference to the bail- 
 ment that require special care, he will not be permitted to ex- 
 ercise so gross a degree of negligence as to give such facts no 
 attention whatever; but he is bound to exercise such a degree 
 of diligence as persons in the like situation exercise over mat- 
 ters of their own under like circumstances. In Joslyn v. King; 
 a letter carrier delivered a registered letter to the clerk of a 
 hotel for one of the guests, the letter containing one hundred 
 
 1 102 Ind. 146. 2 37 Neb. 38. 
 
 58 
 
CH. Yl] FOE SOLE BENEFIT OF BAILOE. [§§ 99, 100. 
 
 dollars. The carrier required of the clerk the usual receipt, 
 which he signed, received the letter, and put it in the letter- 
 box of the hotel, from which place it was stolen. It was held, 
 in an action against the proprietor and clerk for the amount 
 contained in the letter, that the receipt signed by the clerk 
 was sufficient to charge him with notice that the letter was of 
 more than ordinary importance, and required special care, and 
 that the letter carrier, having paid the amount contained in the 
 letter to the person to whom it was addressed, could enforce a 
 liability against the clerk. 
 
 § 99. Failure to obey instructions or the terms of the 
 hailment. — And again, the fact that the bailee is only held to 
 slight diligence will not excuse him from obeying instructions 
 or from following the terms of the bailment and carrying out 
 the object of the bailment contract. The diligence to which 
 he is held is diligence in obeying instructions, as well as the 
 manner of doing the thing he is instructed to do. In Colyar 
 V. Taylor,^ the supreme court of Tennessee held one liable who 
 had gratuitously undertaken to carry the money of the bailor 
 to a certain place and deliver it to another; after receiving the 
 money the bailee gave it to a neighbor, who undertook to 
 carry it and deliver it for him, as requested by the bailor ; while 
 on his way home, in a crowd, the neighbor had his pocket 
 picked of the money. The court held that the bailee violated 
 his trust in handing the money to the neighbor, and was guilty 
 of gross negligence. The terms of the bailment were violated. 
 
 § 100. Termination of the relation and bailor's remedies. 
 These have already been discussed in another chapter, and it is 
 not necessary to here treat the subject again.^ 
 
 141 Tenn. 373; Cannon River Mfg. 2 See ante, ch. V, §§ 77, 78, etc. 
 Co. V. First Nat. Bank, 37 Minn. 394. 
 
 69 
 
CHAPTER YII. 
 
 LIABILITY. OF BAILOR AND BAILEE WHEN BAILMENT FOR THE 
 SOLE BENEFIT OF THE BAILEE. 
 
 § 101. Oommodatum. 
 
 102. For sole benefit of the bailee. 
 
 103. The liability of the bailee. 
 
 104. The contract must be for legal 
 
 purpose. 
 
 105. Need not be absolute owner to 
 
 be bailor or lender. 
 
 106. What right does the contract 
 
 of loan or bailment confer ? 
 
 107. Obligations of the borrower. 
 
 § 108. Bailee's defenses. 
 
 109. The injury or loss must haye 
 
 been without his fault. 
 
 110. Ordinary and extraordinary 
 
 expenses to be paid. 
 
 111. Redelivery of the thing bailed. 
 
 112. Borrower cannot retain for 
 
 debt due him. 
 
 113. Obligation of the lender. 
 
 § 101. Commodatiim. — A bailment for the sole benefit of 
 the bailee is called Gommodatum. 
 
 Definitions. — Sir William Jones defines this class of bail- 
 ment thus: " Lending for use is a bailment of a thing for a 
 certain time to be used by the borrower without paying for it." ' 
 In the civil law it is defined to be " the granting of a thing to 
 be used by the grantee gratuitously for a limited time, and 
 then to be specifically returned." 
 
 Auliffe says : " It is a grant of a thing made in a gratuitous 
 manner for a certain use, and for a certain term of time ex- 
 pressed or implied, to the end that the same specie should be 
 again returned or restored again to us, and not another specie 
 of the same kind or nature; and this in as good a plight as 
 when it was first delivered." 
 
 Lord Holt has defined this class of bailment to be " when 
 goods or chattels that are useful are lent to a friend gratis to 
 be used by him; and it is called a commodatum because the 
 thing- is to be returned in specie. So, it will be observed from 
 these definitions, that a commodatum is the lending of the 
 bailed property to the bailee for his use and accommodation 
 and sole benefit, (jrath. 
 
 1 Jones on Bailments, 118, 317. 
 60 
 
CH. VII.] FOE SOLE BENEFIT OF BAILEE. [§§ 102, 103. 
 
 § 102. For sole benefit of the bailee. — The bailment must 
 be for the sole benefit of the bailee, and there cannot be any 
 benefit whatever, either directly'- or indirectly, to the bailor, 
 for if there is. it at once becomes what is known as a mutual 
 bailment, in which the liabilities of the parties are very dif- 
 ferent. 
 
 § 103. The liability of the bailee. — The bailee in this class 
 of bailments is held to high diligence and liable for slight neg- 
 ligence. The care to be bestowed upon the property by the 
 bailee is extraordinary care, and, as it has been said, the bailee 
 is liable " not only for a slight fault, but for the slightest fault." 
 And again, " he must bring to the thing loaned all possible care." 
 
 In discussing this extraordinary care and diligence which is 
 required by the bailee. Judge Story says : " As the loan is gratui- 
 tous, and exclusively for the benefit of the borrower, he is, 
 upon the common principles of bailments already stated, bound 
 to extraordinary diligence ; and, of course, he is responsible for 
 slight neglect in relation to the thing loaned." 
 
 Sir William Jones is of opinion " that the borrower's inca- 
 pacity to exert more than ordinary diligence will not, even 
 upon the grounds of an impossibility, furnish a sufficient excuse 
 for slight neglect; for he contends that the borrower ought 
 to have considered his capacity before he cheated his friend by 
 engaging in the act of borrowing. And this also is the doc- 
 trine of Pothier. But his doctrine must be received with some 
 qualification and reserve, and be confined to cases where there 
 is either an implied agreement for extraordinary diligence, or 
 the lender has no reason to suspect or presume a want of capac- 
 ity; for, if the lender is aware of the incapacity of the bor- 
 rower, he has no right to insist upon such rigorous diligence. 
 He has a right to insist on that degree of diligence only which 
 belongs to age, character, and the known habits of the borrower. 
 Thus, if a spirited horse is loaned to a raw or rash youth, or to 
 a weak and inefficient person who is known to be such, the 
 lender must content himself with such diligence as they may 
 naturally be expected to use; and he has no right to insist 
 upon the diligence or prudence of a very thoughtful and ex- 
 perienced rider." ^ The parties must here, as in contracts, be of 
 
 1 Story on Bailments, sec 337. 
 61 
 
§§ lOi-106.] ORDINAEY BAILMENTS. [PAET I. 
 
 legal capacity to enter into the contract relation, and, although 
 not competent to make a contract, may be held liable for de- 
 struction or injury to the property; but it is put upon other 
 grounds than that of contract relations, to wit, upon the ground 
 that a tort has been committed. As, for example, where an 
 infant borrows a horse to go to a certain place, and rides or 
 drives the animal beyond that place and he is injured or killed, 
 the action against the infant is an action of tort, and not an 
 action upon the contract. 
 
 § 104. The contract must be for legal purpose.— The con- 
 tract may be expressed or implied. It may be oral or written, 
 but in its nature it must be a legal contract, and not an im- 
 moral contract, or a contract against the law. But if it should 
 be either immoral or for the accomplishment of some end which 
 the law does not countenance, or which the law forbids, the 
 contract would be void. And so if the property should be 
 borrowed by the bailee, and loaned by the lender to him for 
 an immoral or illegal purpose, the law would not recognize 
 the contract, even to the extent of permitting the lender to re- 
 cover the property, if the bailee should refuse to redeliver it to 
 him, but the parties would be left where they had placed them- 
 selves, and the law would afford no further remedy. 
 
 § 105. Need not be absolute owner to be bailor or lender. 
 It is not requisite to the contract of bailment that the bailor 
 or lender should be the absolute owner of the bailed property; 
 he may have a qualified or special property therein which gives 
 him the control of the possession and custody of the thing. 
 Having such a special property or control, he can become a 
 bailor or lender, and his contract of bailment will only be lim- 
 ited by the extent of his property interest in the thing bailed. 
 It is said that a thief in possession of stolen property may be a 
 bailor as long as his possession has not been interfered with by 
 the owner or by the authorities having the right to take the 
 propertjr from him; and so, as we have seen, the finder of prop- 
 ert}--, who is entitled to the possession of it against all the world 
 except the owner, may legally bail the property to the bailee, 
 and the bailment could only be limited either by the bailor or 
 the real owner of the property. 
 
 § 106, AVhat right does the contract of loan or bailment 
 confer? — There has been considerable discussion as to what 
 
 63 
 
■CH. VII.] FOB SOLE BENEFIT OF BAILEE. [§§ 107-109. 
 
 right, strictly speaking, the bailee in this class of bailments 
 has. But it seems to be the weight of authority that he has 
 a possessory interest in the chattels bailed which he may 
 defend in court. He has the right to use the property in ac- 
 cordance with the contract of bailment and the intention of 
 the parties, tlis use, however, is strictly confined to the use 
 that is expressed or implied in the contract of bailment. As, 
 for example, if one should borrow a horse to ride to a certain 
 place, he would have no right to go beyond that place; and 
 notwithstanding the rule of law excusing him for loss of the 
 property, if it occurs by the act of God or the public enemy, if 
 the horse should be lost during the time he was being used by 
 the bailee, according to the contract and the intention of the 
 parties, he could not excuse the loss of the property, even for 
 those causes or by inevitable casualty, if at the time he was 
 using the property in an unauthorized manner; that is to say, 
 the bailee would be liable for using the subject of the bailment 
 contrary to the contract of bailment. 
 
 § 107. Obligations of the borrower. — Under the contract 
 of bailment the borrower is bound to take good care of the 
 property; to use it in accordance with the intention of the par- 
 ties to the bailment, expressed or implied by the contract cre- 
 ating the relation, and to exert and exercise in the carrying 
 out of the bailment extraordinary diligence and care; and for 
 any loss other than for this, even because of slight neg'ect, the 
 borrower would be liable. This- liability may be limited by 
 ■contract, but the liability of the bailor in this class of bailment, 
 as in others before discussed, cannot be limited to the extent 
 of allowing the bailee to commit fraud, or so as to excuse gross 
 negligence. 
 
 § 108. Bailee's defenses. — The bailee or borrower, in case 
 •of mandatum, is excused for injury or loss to the property where 
 the injury or loss is occasioned by the act of God, the public 
 enemy, irresistible force, or inevita,ble accident. But, while 
 the bailee may be thus excused, he cannot invoke these ex- 
 cuses unless he, himself, can show that the loss could not have 
 been prevented or guarded against by the exercise of extraor- 
 dinary diligence upon his part. 
 
 § 109. The injury or loss must have been without his fault. 
 Jf the borrower or bailee should in any way fail to exercise 
 
 63 
 
R 110.] OEDINAEY BAILMENTS. [PAET I. 
 
 extraordinary diligence in avoiding the loss, or if he should be 
 found guilty of the slightest negligence with reference to it, 
 and by reason of this slight negligence, or failure to exercise 
 this extraordinary diligence, the loss or injury was occasioned, 
 in such case he could not be excused. As, for example, it has 
 been held that where one in possession of the borrowed prop- 
 erty leaves the highway and goes by a way which is frequented 
 by robbers, and is robbed of the property, although by over- 
 powering force, he would be held liable. So, any undue ex- 
 posure of the property which would not be made by a very 
 prudent man would render the bailee liable. It is, however, 
 a rule of law that the neglect in order to render a bailee liable 
 for injury or loss of the property must be a neglect of duty 
 which the bailee was bound to have performed, or some omis- 
 sion to exercise diligence which he was in duty bound to ex- 
 ercise; and this required duty or diligence must be a duty or 
 diligence which is imposed by the contract which creates the 
 bailment. 
 
 § 110. Ordinary and extraordinary expenses to be paid.— 
 The implication is, from every contract of this nature, that 
 the bailee will put the property to its natural and ordinary 
 use, and if in so using it he is put to expense, he himself will 
 be required to pay the expenses. As, for example, if the prop- 
 erty be a horse placed in possession of the bailee for use, its 
 natural and ordinary use would require that the horse should 
 be fed, stabled and cared for; that he would require shoeing. 
 These would be ordinary and usual expenses in the use of the 
 animal, and the borrower would be liable on account of them. 
 But if, on the other hand, there should be extraordinary ex- 
 penses, — expenses that are not occasioned or necessary by rea- 
 son of the natural or ordinary use of the property', for such ex- 
 traordinary expense the bailor would be liable, and not the 
 bailee or lender of the property. As in the example just used, 
 while the borrower would be liable for the expenses that are 
 occasioned by the ordinary use of the horse, if the horse should 
 be taken violently sick, and it should become necessary to em- 
 ploy a veterinary, and thus large and unusual expenses were 
 incurred, the bailor would be liable for this expense; and if 
 the borrower or the bailee should in the first instance pay 
 
 64 
 
CH. VII.] FOE SOLE BENEFIT OF BAILEE. [§§ 111-113. 
 
 them, he could recover from the bailor the amount of such ex- 
 penditures. 
 
 §111. Redelivery of the thing bailed. — At the termina- 
 tion of the bailment contract it is the duty of the bailee to 
 return to the bailor or lender the identical property that was 
 loaned to him, together with all natural accessions to the 
 property; as, for example, an animal's offspring, born during 
 the bailment relation. If bonds or securities; for interest 
 that had abcumulated or that had been collected ; and this re- 
 delivery must be made at the place and at the time mentioned 
 in the contract, or implied by the agreement, or in accordance 
 with the intention of the parties at the time the bailment re- 
 lation was entered into; and the property should be delivered 
 to the bailor, even though he is not the owner of the property; 
 and a delivery to an agent of the bailor, unless he was espe- 
 cially authorized by the bailor to receive the property, would 
 not be sufficient. 
 
 § 112. Borrower cannot retain for deM due him. — This 
 bailment relation contemplates the redelivery to the bailor of 
 all the property which was loaned, and the borrower would 
 have no right to retain it, or any portion of it, as security for 
 a debt due and owing to him from the bailor. In this class 
 of bailments no lien is created by implication, and if there is 
 no intention of the parties expressed in the bailment contract 
 the law will not create a lien by implication. There is, how- 
 ever, an exception to this rule where the borrower has been 
 compelled to pay extraordinary expenses, as we have before 
 mentioned; as, for example, by way of doctoring the sick 
 horse, or pursuing and recovering the property if stolen. In 
 such case the lender of the property is legally bound to reim- 
 burse the borrower for such extraordinary expenditure, and if 
 he should fail to do so, the borrower, by implication, would 
 have a lien upon the property bailed to him. 
 
 §113. Obligations of the lender. — The obligations of the 
 lender in this class of bailments are few. It may be said, how- 
 ever, that he is obliged to allow the borrower to use and enjoy 
 the bailment during the time for which the property is loaned, 
 and in accordance with the intention of the parties at the time 
 of making the loan, and that this enjoyment and use, if such 
 was the intention of the parties, is to be without molestation 
 5 65 
 
§ 113.] OEDINAEl' BAILMENTS. [pAET I. 
 
 or interference; and if the bailor, contrary to the expressed 
 stipulation of the contract, should deprive the borrower of this 
 use and enjoyment of the property, he would be liable in an 
 action for damages. It would seem, however, that in this par- 
 ticular class of bailments, where the benefit is entirely for the 
 bailee, that such a liability could not be imposed upon the 
 lender or bailor except by express contract; because in bail- 
 ments of this kind, unless there is some stipulation in the con- 
 tract to the contrary, or unless it should result in very great 
 inconvenience to the bailee — an inconvenience that the courts 
 would say was unwarranted, — the bailor can at any time ter- 
 minate the bailment by giving notice of his intention to do so 
 to the bailee. If the borrower's enjoyment of the possession 
 and use of the property is interrupted or molested by a stran- 
 ger, the bailor would in nowise be liable to the bailee, unless 
 it could be shown that the act of the stranger was brouo-ht 
 about by connivance or request of the lender. But if this were 
 not the case, the borrower could only proceed against the 
 stranger. 
 
 Termination of the iailment. — This has already been dis- 
 cussed and need not be again repeated.' 
 
 ^Ante, oh. V, 
 66 
 
CHAPTER VIII. 
 
 LIABILITY OP BAILOR AND BAILEE WHEN BAILMENT FOR 
 BENEFIT OF BOTH. 
 
 114. Of the nature and extent of 
 
 mutual-benefit bailments. 
 
 115. Loeatio et eonduotio bail- 
 
 ments. 
 
 116. Some definitions further ex- 
 
 plaining. 
 
 117. A general view — Loeatio et 
 
 conductio. 
 
 § 118. Loeatio eonduotio bail- 
 ments. 
 
 119. What the hiring bailments 
 
 embrace. 
 
 120. General subdivisions of the 
 
 hiring bailments. 
 
 § 114. Of the nature and extent of mutual-benefit bail- 
 ments. — In this class of bailments mutaality of benefit is tiie 
 leading feature of the contract, and by it is fixed the liability 
 of the parties. The consideration supporting the contract is 
 valuable to both, and the property interest in the bailment is 
 distinct. 
 
 This is by far the most important class of bailments and will 
 necessarily include in its discussion a great variety of business 
 relations. Belonging to this class are pledge and pawn, inn- 
 keepers, and the so-called exceptional bailments — postmasters 
 and common carriers; all of the bailments known and com- 
 monly denominated as the "loeatio " bailments with their sub- 
 ■di visions ; " loeatio rei," which includes the hiring of property 
 for use, and of itself embraces a large amount of business; 
 " loeatio oporis faeiendi," embracing all of that volume of con- 
 tracts arising from the hiring of work and labor to be performed 
 on the bailed property in the hands of the bailee who performs 
 the labor ; " loeatio eustodiw" all that class of business relations 
 pertaining to the care and custody of goods, as warehousemen, 
 elevatormen, and the like. Then those exceptional bailments 
 which, because of the peculiar and important relations the}'' 
 create, coming so near to the personal interests of mankind, 
 •and often involving their safety, and for this reason, espe- 
 cially, governed and controlled by public policy. Innkeepers, 
 or, as they are more modernly called, hotel-keepers; postmasters 
 
 67 
 
g§ 115, 116.] OEDINAEY BAILMENTS. [PAET I. 
 
 who have charge of the great volume of mail of the country; 
 aacl last and most important, that class denominated in the 
 Eoman subdivision as " locatio oporls mercium veliendarum," or 
 the hiring of the transporting of goods which embrace the 
 immense carrying trade of freight and passengers by the car- 
 riers of the world. 
 
 To mention these great business interests is to impress one 
 with the importance of the subject in hand. To determine 
 something of the manner of the carrying on of these vast in- 
 terests, and to treat of the liability of the parties engaged in 
 the prosecution of it, is the work before us. 
 
 § 115. Locatio et coiiductio bailments. — The hiring bail- 
 ments, so called, are denominated " locatio " bailments, which 
 term is used as well in referring to the "hiring" bailments as 
 the "letting" bailments; the hiring of the use of the thing 
 bailed as the letting of the thing to be used. The conductio 
 bailments, that is to say locatio, which means letting, is used 
 indiscriminately with conductio, which means hiring. All these, 
 whether hiring or letting, in our law are termed '■'■locatio^'' 
 bailments. That is to say, this class of bailments is broader 
 and includes more than the mere locatio (letting) bailments. 
 They embrace, as well, the conductio (hiring) bailments; and 
 so, in discussing this subject, we shall treat locatio bailments 
 as including the conductio bailments. 
 
 § 116. Some definitions furtlier explaining. — With what 
 has just been said as to this class of bailments, we call atten- 
 tion to some of the definitions of writers on this subject. 
 Pothier defines this class of bailments to be: "A contract by 
 which one of the contracting parties engages to allow the 
 other to enjoy or use the thing hired during the stipulated 
 period, for a compensation which the other party engages to 
 pay." Lord Holt in Coggs v. Bernard defines it: "When 
 goods are left with the bailee to be used by him for hire." 
 These definitions only contemplate the hiring of the thing, and 
 the letting of the thing for hire, and exclude that other feat- 
 ure of bailments of this class — the hiring of labor and serv- 
 ice upon and about the thing. Bell defines with, perhaps, more 
 exactness: '^Locatio is in general defined to be a contract by 
 which the temporary use of the subject, or the work or service 
 of a person, is given for an ascertained hire." And Judge 
 
 68 
 
OH. VIII.] FOE BENEFIT OF BAILOE AND BAILEE. [§ 117. 
 
 Story defines it in still more comprehensive language, saying: 
 "At common law it may properly enough be defined to be a 
 bailment of a personal chattel, whose compensation is to be 
 given for the use of the thing, or for labor or for services 
 about it ; or, in other words, it is a loan for hire, or a hiring 
 or letting of goods, or of labor or services for a reward." 
 
 § 117. A general view — Locatio et condnctio. — Keeping 
 in view what has been said by way of introduction of this di- 
 vision of our subject, we are at once introduced into a broad 
 and extensive field of bailment law, compassing and bringing 
 within its limits varied and almost innumerable branches of 
 business. For, turn where we will in the ordinary pursuits of 
 business life, we meet in one form or another this great and 
 important subject. The millionaire and capitalist, the profes- 
 sional man, the mechanic and artisan, even the laboring man, 
 all of every class and pursuit are met by the great enterprises 
 embraced in this class and by the rules of law governing the 
 locatio bailments. 
 
 The millionaire and capitalist who deals in stocks, bonds and 
 loans and intrusts large personal securities to others for specu- 
 lation and investment, who projects great internal improve- 
 ments as the building and operating of railroads, and sends the 
 steamships to plow the ocean and inland lakes; the great 
 corporations who engage in the business of banking and bro- 
 kerage; the trust companies who look after securities, certifi- 
 cates of stock and coupons, and keep within their safe-deposits 
 the money, title-deeds and securities of others; the warehouse- 
 men who, within the walls of our great Avarehouses, store the 
 immense accumulation of personal property left with them for 
 safe storage; the wharfingers who hold for shipment by the 
 great ocean liners and steamships of the great lakes and rivers 
 the immense consignments of freight; the manufacturers, me- 
 chanics and artisans who manufacture the hundreds of thou- 
 sands of articles for the daily use and consumption of mankind ; 
 the farmer who feeds and shelters our animals for hire; the 
 liveryman who, for a reward, furnishes for others horses and 
 carriages for their transportation in and about the carrying on 
 of their business and for pleasure; the jeweler who manufac- 
 tures for hire and reward the jewels for our adornment, and 
 repairs our watches; the tailor who manufactures our cloth 
 
 69 
 
§§ 118, 119.] OEDINAEY BAILMENTS. [PART I. 
 
 into suits of clothing for our wearing apparel; the miller who 
 grinds our corn and wheat and other grains into flour for our 
 bread and feed for our animals, — all these and more are depend- 
 ent upon the law governing this class of bailments for their 
 protection and defense and the settlement of their property- 
 interests, this locatio conductio, this letting and hiring of things, 
 and labor and service about the things bailed; to discuss such 
 a subject in all its details would consume more space than we 
 can give it in a volume like this, and require a research into 
 the texts of authors and adjudications of courts that would be 
 almost endless. At most we can only hope to classify and 
 treat of governing principles that in their application embrace 
 the general subdivision of the subject. 
 
 § 118. Locatio condiictio bailments. — These are com- 
 monly called the hiring bailments. They are created: (1) by 
 contract expressed or implied; the contract may be oral or in 
 writing, and is supported by the mutual consideration or benefit 
 to both of the parties; (2) by operation of law, as in case of 
 possession of property obtained by ofBcers of courts, prize 
 agents and salvors; this possession is commonly known as quasi- 
 bailments. 
 
 § 119. The hiring bailments embrace (1) the letting of the 
 thing for hire; (2) the hiring of the thing for a reward; 
 (3) work and labor and service upon and about the thing for 
 compensation. It must be continually borne in mind that the 
 subject of the bailment is always personalty, and, as we have 
 seen, it may be corporal or incorporeal; that is to say, it may 
 be tangible personal property, as horses, carriages, manufactured 
 articles, ships, railroad cars, and the like ; or incorporeal, as stocks, 
 bonds, notes, evidences of value, and the like, but not realty. 
 The law of bailments operates purely and solely in rem — it is 
 the letting of the thing which is the subject-matter of the bail- 
 ment for hire; as, for example, the letting of the horse and 
 carriage by the liveryman, the bailor, to be used and enjoyed 
 by the bailee who takes it temporarily into his possession, for 
 which the bailee pays to the bailor a recompense; the perform- 
 ing of some service or the hiring of some service or labor to be 
 performed upon the thing, the subject of the bailment, by the 
 bailee who has the property in his possession, for which he re- 
 ceives some reward from the bailor; that is to say, the thing, 
 
 70 
 
CH. VIII.] FOE BENEiriT OF BAILOR AND BAILEE. [§ 120. 
 
 the property which is the subject of the bailment upon which 
 the service is to be performed, as contradistinguished from the 
 mere hiring of labor and service. To illustrate, A., the bailor, 
 delivers to B. (a jeweler), the bailee, his watch to be repaired. 
 A. hires B. to do certain labor upon the thing, his watch, 
 for which he pays a certain compensation; the subject of the 
 bailment is at all times the watch, the watch delivered for re- 
 pairs, the watch with the labor performed upon it, the watch 
 repaired ; and not the labor and skill which repaired it. 
 
 § 120. General subdivisions of the hiring bailments. — 
 From what has been said, it will be noticed that this class of 
 bailments naturally divide themselves into three general sub- 
 divisions, viz.: 
 
 First. The hiring of the thing for use. 
 
 Second. The hiring of work and labor to be bestowed upon 
 or about the thing. 
 
 Third. The hiring of care and custody of the thing. 
 
 These subdivisions will be discussed in the next succeeding 
 chapters. 
 
 71 
 
OHAPTEE IX. 
 
 LOCATIO REL 
 
 131. 
 123. 
 123. 
 
 134. 
 
 125. 
 
 126. 
 
 127. 
 
 138. 
 
 The hiring of the thing for use. 
 
 A contract relation. 
 
 Bailor's title — Warranty of 
 
 bailor. 
 
 Bailee's possession — Property 
 interest in the thing. 
 
 Duty of bailor to give notice 
 of defects rendering thing 
 unfit for use or dangerous. 
 
 Bailee — Good faith of — Mis- 
 use of thing. 
 
 Conversion — What c o n s t i - 
 tutes. 
 
 Exercising unauthorized 
 
 dominion and control over 
 property — Conversion. 
 
 129. Bailor's right against third 
 
 party, against bailee. 
 
 130. Bailee's liability to third par- 
 
 ties for negligent use — Bail- 
 ee's negligence not imput- 
 able to bailor. 
 
 131. Bailee's right under certain 
 
 circumstances to assign his 
 
 interests. 
 133. Extraordinary and incidental 
 
 expenses. 
 133. Termination of the bailment. 
 
 § 131. The hiring of the thing for use. — This class of bail- 
 ments include the locatio et conduvtio rei bailments — the let- 
 ting and the hiring of the thing. Let us notice some of the 
 very common examples of this class — examples that are of daily 
 observation to all of us. A. calls on B., who is a liveryman, to 
 hire for his use a horse and carriage to drive from Detroit to 
 Birmingham. B., the liveryman, lets the horse and carriage 
 to A. for use, for a consideration paid by A. — the letting and 
 the hiring of the thing for use. F., a farmer, calls on N., his 
 neighbor, to hire his team of horses and wagon to draw his 
 wheat to the market town; N. lets him have the team and 
 wagon for the purpose of the bailment, viz., to haul F.'s wheat 
 to the market town, and receives from F. a consideration for 
 the use of the thing, — -the team and wagon; the letting and 
 hiring of the thing. 
 
 Often the consideration or benefit is not so apparent as in 
 the examples given. As, for example, the courts have held 
 that even though the benefit is an indirect benefit, or gaining 
 of advantage or favor, it belongs to this class. 
 
 In a Pennsylvania case, Woodruff v. Painter,^ a merchant 
 
 » 150 Pa. St. 91. 
 
 72 
 
CH. 1X.J LOCATIO EEI. [§ 122. 
 
 was held liable for the loss of a cloak of one of his customers 
 who laid it off at his suggestion in order to try on a new cloak 
 which he was endeavoring to sell her, the court holding that 
 he was bound to exercise ordinary diligence in caring for the 
 cloak; that it was in his custody. And so it has been held 
 that a merchant was holden to ordinary care in caring for a 
 watch placed in a drawer of his store at the suggestion of a 
 clerk during the time the customer was engaged in trading. 
 All these cases were upon the theory that there was indirect 
 benefit; the customer in having the property cared for, the 
 merchant in the opportunity to sell his goods, and the care of 
 the things, the subject of the bailment, being an incident to the 
 business in which he Avas engaged. And in a case where the 
 plaintiff, having a horse for which he had no use, to avoid 
 the expense of keeping, requested the defendant to take it and 
 do his work with it in consideration of its feed and keeping, it 
 was held by the Iowa court that this was not a mere commo- 
 datum or gratuitous loan, under which the defendant would be 
 required to exercise extraordinary care, but a contract for the 
 mutual benefit of both parties, under which the defendant was 
 required to exercise only ordinary care in the keeping and care 
 of the animal.' The consideration, as we have said, need not 
 be direct; it need not be a money consideration. Somewhat 
 emphasizing this is the opinion of the supreme court of Illinois 
 in Francis v. STij'ader^ where the court carefully distinguishes 
 between a gratuitous and benefit bailment. The plaintiff', the 
 owner of a mare, delivered her to the defendant to be broken 
 to service, the defendant to pay no compensation for her use. 
 The mare ran away and was killed. The court below held the 
 defendant to extraordinarj'^ diligence because he was to pay 
 nothing for the use of the mare. The supreme court reversed 
 the judgment, holding that it was a benefit to both bailor and 
 bailee, and the bailee, the defendant, should be held only to 
 ordinarj' diligence ; that it was not necessary that money should 
 be paid; if there was benefit by reason of breaking the mare 
 to service to the bailor, and use of the mare to the bailee, it 
 was a mutual-benefit bailment. 
 
 § 132. A contract relation. — This, like other bail- 
 ments noticed, is a contract relation; the bailment is created 
 
 1 Chamberlain v. Cobb, 33 Iowa, 6. 2 67 111. 273. 
 
 73 
 
§§ 123-125.J OEDINAEY BAILMENTS. [PAET I. 
 
 by contract. Incident to entering into the relation is the con- 
 tract, express or implied, for bailment, by which it is under- 
 stood that the parties are to enter into the relation; if this is 
 supported hj a consideration, then the bailor is bound by this 
 contract for bailment to deliver the thing to be bailed to the 
 bailee, and the bailee may be compelled to carry out the bail- 
 ment according to the contract. 
 
 §123. Bailor's title — Warranty of bailor.— It is not re- 
 quired that the bailor should be the owner of the property, or 
 that he have the absolute title to the thing; the only requisite- 
 is that he have such a possessory right to the thing and the- 
 use of the thing that he can deliver it to the bailee for the 
 purpose of the bailment. It may be that the only right the 
 bailor has is a lease of the property. The bailor, however, at 
 the time of entering into the bailment relation warrants to the 
 bailee sufficient title or right to the thing bailed to enable the 
 bailee to carry out the bailment. Any failure of the relation 
 to the damage or injury of the bailee because of want of title,. 
 or right to grant possession and use for the purposes of the 
 bailment on the part of the bailor, would subject the bailor to- 
 an action on the part of the bailee. As, for example, if by 
 reason of superior legal right of a third party the bailee should 
 be deprived of the possession and use of the thing before the 
 exi)iration of the bailment, and thus damaged, he would have 
 an action against the bailor on account of failure of his title. 
 
 § 124. Bailee's possession — Property interest in the thing. 
 from what has been said, it follows that the bailee is entitled 
 to the possession of the thing and its use for the purposes of 
 the bailment. The extent of the rights of the bailee depends, 
 of course, upon the contract and the purposes of the bailment. 
 The possession and use of the thing is a property interest in the 
 bailee, of which he cannot be deprived so long as he fulfills 
 upon his part the bailment contract, excfept it be by some one 
 who has a better legal right to it than the right or title of the 
 bailor. But as against the bailor, or any persons claiming 
 under him, or who claim by a lesser right or title, the bailee 
 can defend his rights to use and possession. 
 
 § 125. Duty of bailor to give notice of defects rendering 
 thing nnfit for nse or dangerons.— It cannot be said that 
 there is an implied warranty on the part of the bailor that the 
 
 74 
 
CH. IX.] LOCATIO EEI. [§ 126. 
 
 thing is fit for the purposes of the bailment, or that its use 
 would not result in danger to the bailee; and yet the obliga- 
 tion of the bailor is very nearly that. So far as he knows, his 
 obligation is a warranty that the thing is fit for the use for 
 which it was hired, and that its use is not dangerous if in its 
 use the bailee exercises ordinary care. And the bailor is 
 bound to know the full facts, if by exercising at least ordinary 
 care he could find out. And if the thing hired for use might 
 in its use be dangerous, and results in death or great bodily 
 harm, then the bailor will be held to have known that its use 
 was dangerous and would so result, if by exercising a high de- 
 gree of diligence he might have known. If the bailor gave 
 notice of the defect, and, disregarding it, the bailee hired the 
 thing, and by its use was damaged because of its unfitness, in 
 such case the bailor would be relieved of liability; and so if 
 tbe defect was a latent defect, and by careful examination 
 could not have been discovered by the bailor, and was not 
 known to him at the time of the hiring of the thing. And so 
 it has been held"that the plaintiff, bailee, could recover in an 
 action for personal injuries caused by the sudden collapse, 
 while in ordinary use, of a bicycle leased by defendant to plaint- 
 iff; the complainant alleging defects in construction, and that 
 the machine was not strong enough for ordinary use, which 
 allegations were not denied.' If the bailor should let to the 
 bailee, without notice, a vicious horse, — -a horse that he knew 
 to be vicious, or by the exercise of care and prudence ought to 
 have known was vicious, — and the bailee should suffer an in- 
 jury from the use of the animal, the bailor would be liable.^ 
 
 § 126. Bailee — Good faith of — Misuse of thing'. — In this 
 as in all classes of bailments, absolute good faith on the part 
 of the bailee in carrying out the purposes of the bailment is 
 required, and this good faith extends to the use of the thing 
 hired. The bailee would not be permitted to use the thing for 
 any other purpose than the purpose named in the contract, or 
 by the contract and its purpose implied. If A. should hire a 
 driving horse from B., he would not be permitted to use him 
 for a dray horse, or put him at plowing.' Or if hired to go to 
 
 1 Moriarty v. Porter, 49 N. Y. S. 107, » Lockwood v. Ball, 1 Cow. (N. Y.) 
 22 Misc. Rep. 536. 333. 
 
 2 Kissman v. Jones, 56 Hun, 432. 
 
 75 
 
§ 127.1 OEDINAEY BAILMENTS. [PAET I. 
 
 one place, as on a journey to Detroit, the hirer would have no 
 right to go to some other place, or drive him a greater dis- 
 tance;' or, if the horse were hired for a day, and the bailee 
 should keep him a week,^ the bailee would be liable. 
 
 The question is. Did the bailee use the thing in a different 
 way or for a different purpose than that prescribed or implied 
 in the contract for hiring? The earlier cases were very strin- 
 gent, holding that when the bailee thus violated the contract 
 by misuse of the property he was guilty of conversion, and 
 would be liable for any injury that overtook the property, 
 even if caused by act of God or inevitable accident; the theory 
 being that by the misuse of the thing the bailee is guilty of 
 conversion, and all the risks are cast upon him that would fall 
 upon an owner.' 
 
 §127. Conversion — What constitutes. — Mere misuse of 
 the property does not constitute conversion. There must be 
 an intentional deviation from the contract — an assertion of 
 right or dominion over the property inconsistent with the 
 bailor's rights and ownership. The Xew Hampshire court held 
 that " a conversion consists in an illegal control of the thing 
 inconsistent with the plaintiff's right of property."* But just 
 what act upon the part of the bailee constitutes conversion of 
 the thing hired has caused a great deal of discussion and dis- 
 agreement among authors and courts. There is a line of au- 
 thorities which holds that if the hirer of a horse should drive 
 him beyond the place for which he was hired, that act would 
 be deemed a conversion; and if the animal should suffer in- 
 jury, even after returning within the limits for which it was 
 hired, the bailee would be liable for conversion of the prop- 
 erty. The Massachusetts court, in Sjtooiier v. Manchester, held 
 " that an intentional deviation from the line of travel is an act 
 of dominion exercised over the horse inconsistent with the 
 rights of the owner." ^ Another class of cases holds that if the 
 animal did not receive the injury while being driven without 
 the limits of the hiring, the bailee would not be held for con- 
 version.'' 
 
 1 Cosgs V. Bernard. 3 Ld. Raym. 909. ■» Woodman v. Hubbard, 25 N. H. 67. 
 ■^Stewart v. Davis, 31 Ark. 518. 8133 Mass. 270. 
 
 3 Spooner V. Manchester, 133 Mass. ^Farkas v. Powell, 86 Ga. 800; 
 ?70. Lovejoy v. Jones, 80 N. H. 164; John- 
 
 76 
 
CH. IX. J LOOATIO EEI. [§§ 128, 129. 
 
 § 128. Exercising unauthorized dominion and con- 
 trol over property — Conversion. — Conversion is a question 
 more or less of intention. There are some acts upon the part 
 of the bailee which would clearly prove such intentional con- 
 version of the property; as, for example, an unauthorized sale 
 of the property.^ In such case the bailor may take his choice 
 of actions; he may sue the bailee for conversion of the prop- 
 erty in an action of trover, or bring an action of replevin 
 against his vendee for the recovery of the specific property, 
 or, if on demand the vendee refuses to yield up the prop- 
 erty, the bailor may bring an action of trover as for conver- 
 sion, or he may affirm the sale and recover from the bailee 
 the amount of the purchase price. The supreme court of New 
 Jersey in the case of N. T., L. E. c& W. Ry. Co. v. JV. J. Elec- 
 tric By. Co.^ held that " a bailor need not look alone to his 
 bailee for a wrong by a third party in connection with the 
 bailee done to the chattel which is the subject of the bailment 
 for hire. If the bailee assumes to pledge or sell the bailed 
 goods as his own, such an act amounts to a conversion, and the 
 bailor may at once commence his action against the third party 
 in whose possession the property is found. While a mere misuse 
 may not terminate the bailment, yet when, by the negligence 
 of the bailee, either alone or in conjunction with the negligence 
 of a third party, the chattel bailed is no longer fit and suitable 
 for, and cannot be devoted to, the use for which it was hired, 
 the bailment is at an end, and the bailor can maintain his ac- 
 tion for the injury done to it." 
 
 § 129. Bailor's right against third party — against bailee. 
 In the ordinary bailment the bailee has the right to the possession 
 of the property during the existence of the bailment relation, 
 and, as we have seen, by reason of his right to the possession he 
 can defend against the bailor or third parties for any unauthor- 
 ized interference ; but while the bailee is entitled to this exclusive 
 possession of the property for the purposes of the bailment, the 
 bailor in the usual bailment has a fixed reversionary interest 
 in the personal property. Pie is entitled to the redelivery of 
 the property at the expiration of the bailment relation in as 
 
 son V. Miller, 16 Ohio, 431; Rankin 2 60 N. J. L. 338, 38 Atl. 828; Story, 
 V. Shepherdson, 89 III. 445. Bailments {9th ed.), sec. 413; Enosv. 
 
 1 Rankin v. Shepherdson, 89 III. 455. Cole, 53 Wis. 235. 
 
 77 
 
I 130. J OKDINAEY BAILMENTS. [PAET I. 
 
 good condition as when the possession of the same was de- 
 livered to the bailee. It therefore follows that the bailor must 
 have the right to defend his title to the property and to sus- 
 tain an action against either third parties, or even against the 
 bailee, for any trespass, for any use of it that is injurious to it, 
 or which would depreciate its value when it comes to his hands, 
 or that might result in the destruction of the property.* 
 
 § 130. Bailee's liability to third parties for negligent use- 
 Bailee's negligence not impntable to bailor. — The bailee, hav- 
 ing absolute and entire control of the possession and use of the 
 property bailed, necessarily becomes liable to third parties who 
 may be injured by reason of the negligent use of the property; 
 not only does this liability attach because of the aegligeat use 
 of the property by the bailee in person, but the bailee is also 
 liable for the negligence of his servants in respect to the bail- 
 ment; but in no case can it be said that the servants of the 
 bailee, in a bailment for hire, are the servants as well of the 
 bailor. And so it follows that the bailor is not responsible to 
 third parties for the negligent use of the property by the serv- 
 ants of the bailee, or by the bailee himself. The bailee does 
 not stand in the place of the bailor; he does not represent him 
 in such a relation as would render the bailor liable for his neg- 
 ligent acts, or for the negligent acts of his servants or agents;^ 
 and so, while in an action brought by the bailee against third 
 
 1 N. Y., L. E. & West. R Co. v. N. J. would furnish a driver if it was neo- 
 
 Electric Co., 38 Atl. 828, 60 N. J. Law, essary. B. directed an incompetent 
 
 338. man to drive the horse, who backed 
 
 ^Hofer V. Hodge, 52 Mich. 372. him off the dock and the horse was 
 
 The bailee of a chattel is liable for drowned. Held, that the driver was 
 
 the negligence of a person employed the servant of B., and that ordinary 
 
 by him to use it. Hall v. Warner, care was required in the use of the 
 
 00 Barb. 198; Mims v. Mitchell, 1 Tex. property. Hofer v. Hodge, .52 Mioli. 
 443. Where cotton was sent to be 3T2, 18 N. W. 112, 50 Am. Rep. 256. 
 ginned and was destroyed by a Where a bailee of goods intrusted to 
 tire that threatened the gin-house, him to do work upon them, with the 
 through the negligence of the bailee's knowledge and privity of the bailor 
 servants, he was held liable to the employs another to aid in doing the 
 owner. (Ala., 1828) Maxwell v. Eason, work, and through the negligence 
 
 1 Stew. 514; MoCaw v. Kimbrel, 44 and unskilfulness of the latter the 
 McCord. 220. A. was under a contract goods are injured, the owner may 
 with B. to do hauling, A.'s teamster maintain an action against him 
 being employed. The teamster fell therefor. Baird v. Daly, 57 N. Y. 236, 
 sick and A. took the horse and cart to 15 Am. Rep. 488, reversing (1871) 4 
 B., who told him to leave them and he Lans. 426. 
 
CIJ. IX.] LOCATIO KEI. [§ 131. 
 
 parties for injuries to the property, the third party may defend 
 in the action upon the ground of contributory negligence upon 
 the part of the bailee, his servants or agents, in an action by 
 the bailor, who is the owner of the property, against a third 
 party for injury to the bailment, the negligence of the bailee, 
 or his servants or agents, would be no defense and would not 
 prevent a recovery, for the reason that such negligence is not 
 imputable to the bailor. 
 
 § 131. Bailee's right under certain circumstances to assign 
 his interests. — In the ordinary bailment relation, the nature 
 •of the bailment and the object to be effected by it forbids that 
 the bailee should have, or should be regarded as having, any 
 assignable interest; and as a general rule any attempt upon 
 the part of the bailee to make such an assignment would be 
 considered as a termination of the bailment and a conversion 
 of the property, and the assignee would not, by reason of the 
 ■assignment, acquire any interest in the property. Such would 
 be the rule in all cases where the bailment can properly be re- 
 garded as a personal trust in the bailee; and such is the case 
 where the bailment is at will, that is, during the pleasure of 
 bofh parties. There is, however, a large class of bailments, 
 ■where the bailment contract gives to the bailee an interest in 
 the property not incident to a simple bailment; and where there 
 is no personal confidence, and where it would be entirely in 
 accord with the contract creating the bailment, it was held 
 that the bailee had an assignable interest which might be trans- 
 ferred to a third party ; such assignment not affecting the pur- 
 pose of the bailment, but rather being entirely harmonious with 
 the purpose and design of the parties. Examples may be found 
 where resident property is leased for a term of years with fur- 
 niture for the use of the lessee. If in such case there is nothing 
 to prevent the lessee from subletting the property, he may sub- 
 let the property and assign his right to the use of the furniture. 
 So in leases of farm property where the farming implements 
 and stock are upon the farm, the lessee, of course, becomes 
 the bailee of this personal property, and upon subletting the 
 premises could assign his interest as bailee in the personal 
 property.! 
 
 1 Vincent v. Cornell, 13 Pick. 394; Bailey v. Colby et al., 34 N. H. 39, 
 
 79 
 
g§ 132, 133.] OKDINAEY BAILMENTS. [PAET I. 
 
 § 132. Extraordinary and incidental expenses. — This sub- 
 ject has already been discussed,' and we need say no more with 
 reference to it except, perhaps, to restate the rule that the 
 bailor would be liable for any extraordinary expenditures; 
 while for the usual incidental expenses the bailee would be 
 liable during the use of the property bailed. 
 
 § 133. Termination of the bailment. — Nothing further 
 need be said with reference to the termination of the. bailment, 
 as it has already been discussed.^ 
 
 1 Ante, § 110. 2 Ante, ch. V. 
 
 80 
 
CHAPTEE X. 
 
 LOCATIO OPERIS BAILMENTS. 
 
 134. The hiring of labor and serv- 
 
 ice upon the thing. 
 
 135. Locatio opens faciendi — The 
 
 hiring of work and labor 
 upon the thing, 
 186. Contract relation. 
 
 137. The obligations of the em- 
 
 ployer, the bailor. 
 
 138. Bailee has a special property 
 
 in the thing. 
 
 139. Whether a sale or bailment. 
 
 140. "When product from material 
 
 furnished and labor to be 
 sold and profits divided. 
 
 141. If the thing is destroyed dur- 
 
 ing the carrying out of the 
 
 agreement or after finished. 
 
 143. The duty of the bailee. 
 
 143. If the work is to be performed 
 
 by the job, and loss or in- 
 jury occur before comple- 
 tion. 
 
 144. The work must be done as 
 
 contracted. 
 
 145. . 
 
 146. Summary of the discussion 
 
 thus far. 
 
 147. Not every failure to perform 
 
 contract obligations will de- 
 prive bailee of entire com- 
 pensation. 
 
 148. If the failure to perform is the 
 
 fault of the bailor, 
 
 149. Inevitable accident or irre- 
 
 sistible force. 
 
 150. Reclaiming the property. 
 
 § 151. Generally bailee may do the 
 work by an agent or serv- 
 ant. 
 
 Where skill as well as care is 
 required. 
 
 He must exercise the skill 
 adequate to the proper per- 
 formance of the work. 
 154. If the bailee for hire purports 
 to have skill he must use it. 
 
 Ordinary skill required. 
 
 The degree of skill and dili- 
 gence increases in certain 
 cases. 
 
 Skilled work by an agent or 
 servant. 
 
 Defenses of the bailee. 
 
 Notice to the bailor that 
 claims for defects must be 
 made within a certain time. 
 
 Title to the material used by 
 bailee passes to bailor by 
 accession. 
 161. The lien of the bailee in lo- 
 catio operis faciendi bail- 
 ments. 
 
 Priority of the lien. 
 
 Agisters and livery-stable 
 men — No lien at common 
 law. 
 
 Lien by statute. 
 
 Chattel mortgage takes prece- 
 dence over lien. 
 166. Other questions previously 
 discussed. 
 
 153. 
 
 153. 
 
 155. 
 156, 
 
 157. 
 
 158. 
 159. 
 
 160. 
 
 163. 
 163. 
 
 164. 
 165, 
 
 § 134. The hiring of labor and service npon the thing. — 
 
 This embraces a large class of bailments, and, for a clearer 
 understanding and discussion of the subject, has been divided 
 into — 
 
 1st. "Locatio o^peris faciendi" the letting of work and labor 
 to be done upon the thing for hire. 
 6 81 
 
§ 135.] OEDINAET BAILMENTS. [PAET I. 
 
 2d. "Locatio custodim" the letting of care and custody of 
 the thing for hire ; and, 
 
 3. '■'■Locatio oj>eris mercium vehendarum" the letting of labor 
 in the carrying of goods from place to place, embracing that 
 very important business of carriers of goods, public and pri- 
 vate. 
 
 In this chapter we shall discuss the subdivision of the operis 
 bailments, leaving others for later chapters. 
 
 § 135. Locatio operis facieiidi — The hiring of work and 
 labor upon the thing. — From the consideration of the letting 
 and hiring of the thing discussed in the last chapter, we are 
 led to the consideration of the letting of labor upon the thing, 
 or, as it is more generally called, the hiring of labor and serv- 
 ice upon the thing. This belongs to the hiring bailments. The 
 benefits are mutual to bailor and bailee; but whereas in the 
 last chapter we noticed that the bailee was the party to pay 
 the consideration for the use of the thing hired, here the bailor, 
 by the terms of the contract, express or implied, is the party 
 who must pay the bailee for the labor and service bestowed 
 upon the subject of the bailment — the thing. The bailor is the 
 hirer of the labor and service upon the thing, the subject of 
 the bailment, which is his own property, or under his control 
 for the purposes of the bailment. 
 
 The jobber sends his cloths to a factory to be manufactured 
 into clothing, for which he contracts to pay; or, a person 
 takes cloth to a tailor to be made into a coat, for which he 
 is to pay a certain sum of money. The person furnishing the 
 cloth is the bailor — the hirer; the tailor, or person manufact- 
 uring the coat or clothing, doing the labor and service, is the 
 bailee. 
 
 One carries his watch to the jeweler to be repaired, or a 
 jewel to have him set it with gems which he furnishes. One 
 takes his material, lumber, etc., to the boat-builder to have 
 him construct a boat, or his boat to be repaired. 
 
 Now, it Avill be observed that the workman, the bailee, is the 
 custodian of the property as well as the one who contracts to 
 bestow the labor upon the thing. Examples are numerous, but 
 enough has been noted to call attention to the nature and kind 
 of bailment we have under discussion. 
 
 «3 
 
CH. X.] LOOATIO OPEEIS BAILMENTS. [§§ 136-138. 
 
 § 136. Contract relation. — This class of bailments is also a 
 contract relation either express or implied, and the duties and 
 liabilities of the parties are generally settled. Those duties 
 and liabilities may to a certain extent be limited or enlarged 
 by express contract, but if the relation rests in implied con- 
 tract, the law is well settled as to the extent of the rights of 
 the parties. 
 
 § 137. The obligations of the employer, the bailor. — 
 Generally speaking, the law imposes upon the bailor, the em- 
 ployer, if the relation is by implied contract, the following du- 
 ties or obligations: 
 
 (1) To do everj'^thing consistent with the employment to be 
 performed on his part to enable the workmen to execute the 
 engagement. 
 
 (2) To pay for all necessary, new or accessorial materials. 
 
 (3) To pay the price or compensation that is to be paid for 
 the work as agreed. 
 
 (4) And finally, to accept the thing when it is finished. 
 On the other hand it is the duty of the bailee: 
 
 (1) To receive, care for and keep all material furnished until 
 the contract is carried out, or is determined. 
 
 (2) To perform the service in good faith and as required by 
 the undertaking. 
 
 (3) To do the work and produce the result of the undertak- 
 ing within the time agreed. 
 
 (4) To perform the work well, using the skill and judgment 
 required and which the workman claimed would be used upon 
 the subject-matter of the bailment. 
 
 (5) To use and employ the material in a proper manner. 
 
 (6) To exercise good faith and honest dealing in carrying out 
 the undertaking. 
 
 (7) To exercise that degree of diligence in all branches of 
 the performing of the service and using material and accomplish- 
 ing the object of the undertaking that is required by law in 
 such like cases. 
 
 (8) To deliver the property to the bailor when the bailment 
 contract is fulfilled or otherwise terminated. 
 
 § 138. Bailee has a special property in the thing. — In this 
 class of bailments, from its very nature, it will be seen that the 
 bailee not only has the right to the possession, but has a special 
 
 83 
 
§ 139.] OEDINAET BAILMENTS. [PAET I. 
 
 property in the thing bailed, and perhaps a greater interest 
 than in other classes of bailment, because in the performance 
 of the bailment he necessarily mingles with the property of the 
 bailor furnished to him his labor, and often material, in order 
 to carry out the contract; and more than this, he has the prop- 
 erty by contract and is employed to do upon it certain work 
 and labor, and thus reap a benefit to himself. And so it follows 
 that, as the bailment advances, the interest of the bailee must 
 increase in value; so it has been held that the bailee may main- 
 tain trover or replevin against a party who undertakes to 
 deprive him of it, even against the bailor if he should so under- 
 take before the time stipulated for the carrying out of the 
 contract, or before the bailee has made such default as would 
 terminate the relation. And so the bailee, without question, 
 cannot only maintain an action against third parties for an 
 injury to his possession, and as to that he is the only party who 
 can during the continuance of the bailment maintain such an 
 action, but the general current of authority seems to be that 
 the bailee can include in such suit damages for the entire injury 
 to the subject of the bailment; but while this right of action 
 is given the bailee, no case can be found that denies the right 
 of the bailor to sue and recover for the permanent injury to the 
 property, even before the expiration of the bailment. This is 
 upon the principle that the bailor has a reversionary interest 
 in the property, and one having such an interest has a right to 
 sue one who is not in possession thereof for an injury to such 
 property which will depreciate its value when it comes to his 
 hands, and is entitled to recover damages to the extent of the 
 injury. This right of action also obtains in case of personal 
 property.! 
 
 § 139. Whether a sale or bailment. — It is contemplated in 
 this class of bailments that the bailor furnishes to the bailee the 
 thing or the materials from which the thing is to be produced, 
 and that the bailee, the workman, is to produce the thing, or, if 
 a thing that has already been produced and is delivered to him 
 for repairs, to make such repairs upon it; that the property, the 
 thing or the materials, are the property of the bailor, to which 
 
 1 Sherman & Redf. Neg., sec. 119; W. R. E. Co., 61 N. J. L. 287, 43 L, E. 
 Howard v. Farr, 18 N. Y. 457; N. J. A. 849; Brief, 43 L. R A., p. 853. 
 Electrical Ry. Co. v. N. Y., L. E. & 
 
 84 
 
OH. X.J LOOATIO OPEEIS BAILMENTS. [§ 140. 
 
 is to be added the service, work, or skill of the bailee. As, for 
 example, the cloth taken to the tailor to manufacture coats, 
 the undertaking or bailment contract being that for a certain 
 consideration the workman, from the cloth furnished him, will 
 furnish to the bailor a certain number of coats manufactured; 
 this would be a bailment contract, the manufactured coats 
 would be the property of the bailor. ISFor is it necessary that 
 the bailor should furnish all of the material, nor does the law 
 lay down any fixed or settled rule as to just what proportion 
 of the material must be furnished in order that the bailment 
 should be sustained ; but in cases where the bailor, or employer, 
 did not furnish any of the material, as, for example, in a case 
 where the undertaking was on the part of the workman to fur- 
 nish to the employer a certain number of coats, the workman 
 furnishing both material and labor, there could be no question 
 but that such an agreement would be a contract of sale and 
 not of bailment. This question will be met as we come to con- 
 sider the liability of the parties in cases where the property is 
 lost or injured. 
 
 While there is no fixed or settled rule as to the proportion 
 of the material the bailor or employer is bound to furnish in 
 order to establish the bailment relation, it seems to be gener- 
 ally conceded thafc the bailor should furnish the principal part 
 of the material. 
 
 § 140. When product from material furnished and labor 
 to be sold and profits divided. — Considerable discussion has 
 been had as to whether, where material has been furnished 
 by the bailor to be wrought upon by the bailee, the product 
 of the material and labor to be sold in the market, and the 
 net profits obtained from the material to be divided between 
 the bailor and bailee, it is a bailment relation or a mere joint 
 undertaking or a partnership agreement. A late case in the 
 state of New Tork, Battler v. Hallock,^ has discussed this ques- 
 tion, holding that in such case the relation is a bailment rela- 
 tion; and in an earlier case, Gregory v. StryTcer,^ the court say: 
 " Yarious cases have arisen in which property in a raw state 
 was delivered by one person to another upon agreement that 
 it should be wrought upon and improved by the labor and 
 skill of the bailee, and when thus improved in full should be 
 
 1 15 App. Biv. Sup. Ct. N. Y., p. 500. 2 3 Denio, 631. 
 
 85 
 
§ 140.] OEDINAET BAILMENTS. [PAET I. 
 
 divided in certain portions between tiie respective parties, and 
 in which it was held that the original owner retained his ex- 
 clusive title to the property until the contract had been com- 
 pletely executed, and this, notwithstanding the labor to be 
 performed by the bailee might be equal or even greater in 
 value than that of the property when received by him." 
 
 And where plaintiff and his assignors entered into an agree- 
 ment with the defendant by which the defendant agreed to 
 manufacture cheese and butter from milk delivered at his 
 factory by the plaintiff, and his assignors to sell the product 
 and distribute the proceeds according to a contract between 
 them, the factory having been destroyed by fire, and a quan- 
 tity of the milk, butter and cheese thereby lost, in an action to 
 recover the amount of the loss it was held that the contract 
 was one of bailment, and defendant assumed simply the duty 
 to exercise ordinary care to protect and preserve the property; 
 that the burden of the proof was upon the plaintiff to show a 
 failure to perform his duty; that no presumption of negligence 
 arose from the fact that the loss resulted from the fire. The 
 court say: 
 
 "It is true that where an absolute executory contract is 
 made, the contractor is not excused from inability to execute 
 it caused by unforeseen accident or misfortune, but must per- 
 form or pay damages unless he has protected himself against 
 such contingency by stipulation in the contract. But there 
 ma3' be in the nature of a contract an implied condition by 
 which he will be relieved from such unqualified obligation, and 
 when in such case, without his fault, performance is rendered 
 impossible, it may be excused. That is so when it inherently 
 appears to have been known to the parties to the contract, 
 and contemplated by them when it was made, that its fulfill- 
 ment would be dependent upon the continuance or existence, 
 at the time for performance, of certain things or conditions 
 essential to its execution. Then in the event they cease, be- 
 fore default, to exist or continue, and thereby performance 
 becomes impossible without bis fault, the contractor is, by force 
 of the implied condition to which his contract is subject, re- 
 lieved from liability for the consequences of his failure to per- 
 form. 
 By the contract now under consideration, the cheese and 
 
 86 
 
CH. X.] 
 
 LOCATIO OPEEIS BAILMENTS. 
 
 [§ lio. 
 
 butter were to be manufactured at this factory, and to be made 
 from the milk furnished by the patrons, of which the plaintiff 
 and his assignors were members. The existence of that particu- 
 lar factory was terminated by its destruction, and the loss with 
 it of the manufactured product and of the milk then remaining 
 there unconverted into cheese and butter rendered it impos- 
 sible for the defendant to further proceed with the perform- 
 ance of the contract in respect to those articles of material 
 and product. And as the nature of the agreement was such 
 that it must be deemed to have been contemplated by the par- 
 ties to it that the articles to be manufactured should be made 
 only from the materials furnished by the patrons and at the 
 factory referred to, there was necessarily an implied condition 
 so qualifying the defendant's undertaking as to relieve him 
 from performance rendered impossible without his fault, and 
 from the consequences of his inability thus occasioned to ful- 
 fill his contract in respect to the subject of the bailment which 
 was destroyed by the fire." ' 
 
 1 Stewart v. Stone, 127 N. Y. 500. 
 In Hyde v. Cookson, 31 Barb. 93, 
 there was a written agreement be- 
 tween the plaintiflFs and one Osborn 
 in relation to tanning a quantity of 
 hides. The hides were to be fur- 
 nished by the plaintiffs on a commis- 
 sion of five per cent, for buying and 
 six per cent, for selling the leather. 
 Osborn was to take the hides to his 
 tannery, manufacture them into 
 hemlock sole leather, and return it 
 to the plaintiffs, who were to sell it 
 in their discretion. When sold, the 
 account was to be made up, and the 
 net proceeds of the sales, after de- 
 ducting the costs of hides, commis- 
 sions, interest, insurance and other 
 expenses, were to be the profit or loss 
 to accrue to Osborn in full for tan- 
 ning the hides; and it was held that 
 this was not a contract of sale, but 
 of bailment, and that the title re- 
 mained in the plaintiffs. In Pierce 
 V. Schenck, 3 Hill, 28, logs were de- 
 livered at a saw-mill under a con- 
 tract with the person running the 
 
 mill that he would saw them into 
 boards, and that each party should 
 have one-half. It was held that the 
 transaction was a bailment; that the 
 bailor retained his general property 
 in the logs until they were all manu- 
 factured in pursuance of the con- 
 tract ; and that, as between the par- 
 ties, the bailee acquired no interest 
 in any of the boards manufactured 
 by mere part performance within 
 the time. In Mallory v. Willis, 4 N. Y. 
 76, the plaintiffs agreed to deliver 
 merchantable wheat at a flour-mill 
 carried on by the defendant, to be 
 manufactured into flour. The de- 
 fendant agreed to deliver one tyjn- 
 dred and ninety-six pounds of super- 
 fine flour, packed in barrels to be 
 furnished by the plaintiffs, for every 
 four bushels and fifteen pounds of 
 wheat. He was to be paid sixteen 
 cents per barrel, and two cents extra 
 in case the plaintiffs made one shil- 
 ling net profit on each barrel of flour. 
 The defendant was to guaranty the 
 inspection. The plaintiffs were to 
 
 87 
 
§§ 141, 142.] OEDINAEY BAILMENTS. [PAET I. 
 
 § 141. If the thing is destroyed during the carrying out 
 of the agreement, or after finished. — It will be observed that 
 by the very nature of the bailment relation that is created in 
 this class of bailments the title to the property remains in the 
 bailor during the time that the work and service is being per- 
 formed upon it by the bailee, and therefore it follows that if 
 the property should be destroyed at any time by reason of in- 
 ternal defects, inevitable accident or irresistible force, and 
 without the fault or negligence of the workman, the bailee, the 
 loss would necessarily fall upon the bailor; and because the 
 thing under such circumstances at the time of the loss was the 
 property of the bailor with all the labor and accessorial mate- 
 rial added, it necessarily follows that the workman would be 
 entitled to recover from the bailor compensation for the labor 
 he had bestowed upon the thing up to the time it perished or 
 was destroyed, and would also be entitled to compensation for 
 any material furnished by him in carrying out the undertaking. 
 
 You cannot but notice here that the rule would be very dif- 
 ferent in the case noted in a fornier paragraph were the work- 
 man, or the bailee, furnished all of the material as well as all 
 the labor, and from the material and the labor was to produce 
 for the employer certain manufactured articles; in such case, 
 if the articles in process of manufacturing, or after they were 
 completed, but before delivery, should be destroyed, the work- 
 man could not recover from the employer compensation for his 
 labor and material, for the reason that in such case the thing 
 would not be the property of the purchaser, but would be the 
 property of the workman. 
 
 § 142. The duty of the" bailee. — The bailment relation 
 
 here created is one for the benefit of both bailor and the bailee, 
 and therefore ordinary diligence is required and the parties 
 
 have the offals or feed, which the the defendant one thousand pairs of 
 
 defendant was to store until sold, pruning shears, to be in all respects 
 
 This court held in that case that the like a sample furnished, the defend- 
 
 contract imported a bailment, and ants to furnish the rough castings 
 
 not a sale. The doctrine of that case for the handles and the plaintiff to 
 
 was indorsed in Foster v. Pettibone, furnish the blades. It was held that 
 
 V N. Y. 433. In Mack v. Snell, 140 the contract was one of bailment, 
 
 N. Y. 193, 35 N. E. 493, the parties and not of purchase and sale, so that 
 
 entered into a contract by which the the title to the shears manufactured 
 
 plaintiff agreed to manufacture for was at all times in the defendant 
 
■CH. X.] LOOATIO OPEEIS BAILMENTS. [§ 143. 
 
 are liable for ordinary negligence. As we have noticed, it is 
 the duty of the bailee to receive and care for and keep the 
 materials or things furnished for the undertaking until a de- 
 livery to the bailor according to the contract, or until for other 
 reasons the bailment is terminated ; to perform the services in 
 good faith, and as required by the undertaking ; to do the work 
 well and produce the result of the undertaking within the 
 time agreed; to use the skill and diligence required, or the 
 skill and judgment claimed by him, the bailee, to be required, 
 and that he will exercise good faith in all things pertaining 
 to the contract, and deal honestly; and redeliver the prop- 
 erty to the bailee when the contract is fulfilled. That is to 
 say, the duty of the bailee is that in exercising all and each 
 of these requirements he must use ordinary diligence, and if he 
 fails to do so and injury results therefrom to the bailor, he will 
 be liable therefor. If, however, the injury was the result of 
 failure on the part of the bailor, or the employer, to perform 
 his duty, and his failure contributed to the injury or loss, it 
 would excuse the bailee from liability. The question of lia- 
 bility will be considered later. 
 
 § 143. If the work is to be performed by the job and loss 
 or injury occur before completion. — We have already stated 
 that where the title to the thing and the materials furnished 
 remains in the bailor, or employer, during the performance of 
 the work by the workman, and the property is lost with- 
 out his fault, as by inevitable accident, internal defects, or ir- 
 resistible force, the workman is entitled to pay for his labor 
 and for the material furnished. The rule, however, seems to 
 be different where the contract for the labor is an entirety, 
 as, for example, where the labor is to be performed by the job, 
 and the loss occurs before the work or the thing to be produced 
 is completed ; in such case the rule is that the thing would per- 
 ish to the employer, and the work to the mechanic. That is 
 to say, the employer would lose the material that he had fur- 
 nished for the thing that was being repaired or produced, and 
 the laborer would lose the labor that he had bestowed upon it. 
 If, however, it should appear that the loss was occasioned by 
 reason of want of diligence on the part of the bailee in taking 
 care of the property, and that the injury was the result of his 
 fault, in such case the bailee would have to respond to the 
 
 89 
 
§ 143.] OEDINAEY BAILMENTS. [PAET I. 
 
 bailor in damages for the loss of the property thus occasioned. 
 But if at the time the loss occurred the job had been com- 
 pleted, but not delivered, it not being the duty of the bailee 
 to deliver the completed article, and the loss or damage was 
 not the result of his fault or negligence, the bailee would 
 be entitled to compensation for his labor because the title 
 to the completed article would be in the employer. This 
 is very well illustrated by the court's opinion in Cohen v. 
 MafiKkowitz^ in a case where defendant employed the plaint- 
 iff, a tailor, to put together sixty-six garments; he had a part 
 completed, but failed to send them as he agreed to do; on the 
 night of the day following the day he was to have delivered 
 the finished portion, the building burned and the garments 
 were destroyed. The court say: " As the material belonged to 
 the defendant, the contract between him and the plaintiff was 
 one of bailment, and of that class technically called locaiio 
 operis faciendi, applicable ' to the hire of tailors to make 
 clothes, of jewelers to set gems, and of watchmakers to repair 
 watches.' In such a case, if, while the work is being done on a 
 thing belonging to the employer, the thing perishes by internal 
 defect or inevitable accident, without any default of the work- 
 man, the latter is entitled to compensation to the extent of his 
 labor actually performed on it, unless his contract import a 
 different obligation; for the maxim is, '■Res perit domino.'' 
 The rule is said to be: (1) If the work is independent of any 
 materials or property of the emploj'er, the manufacturer has 
 the risk, and the unfinished work perishes to him ; (2) if the 
 bailee is employed in working up the materials, or adding his 
 labor to the property of the employer, the risk is with the 
 owner of the thing with which the labor is incorporated." 
 
 Judge Story in his work on Bailments^ says: " But suppose 
 there is a contract to do work on a thing by the job (as, for 
 example, repairs on a ship) for a stipulated price for the whole 
 work, and the thing should accidentally perish or be destroyed 
 without any default on either side, before the job is completed, 
 the question would then arise whether the workman w^ould be 
 
 139N. Y. S. 1084; Archer v. Mc- 2 Story, Bailments, sec. 426; 2 
 Donald, 36 Hun, 194; McConihe v. Kent's Com. 590, 591 ; Schouler, Bail- 
 Railway Co., 20 N. Y. 495; Story, Bail- ments. 111. 
 ments, sec. 421. 
 
 90 
 
CH. X.J LOCATIO OPEEIS BAILMENTS. [§ 144. 
 
 entitled to compensation j)ro tanto for his work and labor 
 done and materials applied up to the time of the loss or de- 
 struction. It would seem that by the common law, in such a 
 case (independent of any usage or trade), the workman would 
 not be entitled to compensation, and that the rule would apply 
 that the thing would perish to the employer and the work to 
 the mechanic; for the contract by the job would be treated as 
 an entirety, and should be completed before the stipulated 
 compensation would be due." 
 
 §144:. The work must, be done as contracted. — The em- 
 ployer is entitled to have the work done according to the con- 
 tract, and failure to thus perform the work might result in 
 non-liability of bailor for compensation. In considering this 
 class of contracts it must at all times be borne in mind that 
 the thing, the subject of the bailment and of the contract, is the 
 property of the bailor or the employer, and the parties do not 
 stand in the relation of vendor and vendee. The taking pos- 
 session of the property by the bailor after the work has been 
 performed is not an acceptance of the work, or in any sense a 
 waiver of the bailor's demand that the contract be fulfilled. 
 
 If the parties stood in the relation of vendor and vendee, or 
 buyer and seller, it would be the duty of the buyer to reject 
 the goods because of failure of the seller to carry out the 
 agreement and to act promptly, and if he did not refuse the 
 goods, to express his dissent at once, and thus enable the vendor 
 to protect his interest ; but in this case the property belongs 
 to the employer; he has a right to it; and it is a question sim- 
 ply of paying for the labor and the accessorial materials, and 
 so the bailor may take the property and refuse to pay for the 
 labor and material because of failure to do the work as agreed 
 by the bailee. 
 
 The question has often been raised where the work was con- 
 tracted to be done according to sample, and perhaps this class 
 of cases would more squarely raise the question.^ 
 
 1 In Maok v. Snell, 140 N. Y. 193, tract in its true scope and meaning, 
 the court held that where the plaint- It is plain that under the general 
 iff failed to produce the article ao- rule no compensation can be de- 
 cording to the contract, the bailor manded by the plaintiffs, as the con- 
 would not be held for compensation, sideration upon which the defend- 
 The court say; "They (plaintiffs) ant's promise rested has never been 
 wholly failed to perform their con- furnished. The defendant, it is true, 
 
 91 
 
§§ li5, 146.] OEDINARY BAILMENTS. [PAET I. 
 
 § 145, . As we have said, it is incumbent upon the 
 
 workman to do the work in accordance with the contract by 
 which it is undertaken. If the contract is not written, there 
 are certain implied obligations that apply to every undertak- 
 ing, and so it may be said that in every case the workman is 
 bound to do the work reasonably well, that is, in a workman- 
 like manner, using such skill and judgment as the undertakmg 
 requires, and such as the workman claims to possess; pro- 
 ducing the result of the undertaking within the time stipulated 
 without waste or damage to the employer; using the material 
 furnished in a proper manner, and withal exercising good 
 faith in the performance of the work. If, therefore, the work 
 has not been so performed, if the contract has not been kept, 
 but by reason of the performance thereof on the part of the 
 bailee a defense is afforded to the employer against a demand 
 for the payment of the price, that the work was defectively or 
 improperlydone, that same defense will be equally available to 
 the employer after the loss. Judge Story says,^ " this seems to 
 be the doctrine of the Eoman law," and it is also the doctrine 
 of the common law. 
 
 § 146. Summary of the discussion thus far. — From what 
 has thus far been stated, the matter of compensation for the 
 workman, the bailee, in these several cases may be summed up 
 by quoting from ]Mr. Bell's summar}', and adding the com- 
 ments of Judge Story. 
 
 Mr. Bell says:^ (1) "If the work is independent of any ma- 
 has title to the shears, but this is be- ant, it is claimed, operated in law as 
 cause he owned the materials out of an acceptance of tiie shears deliv- 
 which they were made; the articles ered, and precludes him from claim- 
 he contracted for had never been ing that those subsequently nianu- 
 furnished. In the place of these factured of the same kind were 
 were furnished articles useless and defective." The court her© distin- 
 valueless because of defects in con- guishes between the bailment con- 
 struction not existing in the sample tract and an executory contract for 
 shears. Tlie claim is made, however, the manufacture and sale of articles 
 that the plaintiffs are entitled to re- of a specified kind, and holds that 
 cover on the contract, not on the the rules governing an executory 
 ground of performance, but by rea- contract for manufacturing the chat- 
 son of the omission of the defendant tels does not apply in the case at 
 to reject and return tlie sliears deliv- bar. 
 
 ered. . . . Or to notify the plaintr l Story, Bailments, sec. 420. 
 iff that they did not conform to the 2 Story, Bailments, sec. 43& 
 contract. The silence of the defend- 
 
 93 
 
CH. X.J LOCATIO OPERIS BAILTHENTS. [§ 147. 
 
 terial or property of the employer, the manufacturer has the 
 risk, and the unfinished work perishes to him. (2) If he is 
 eraploj^ed in working up the materials, or adding his labor to 
 the property of the employer, the risk is with the owner of 
 the thing with which the labor is incorporated. (3) If the 
 work has been performed in such a way as to afford a defense 
 to the employer against a demand for the price, if accident 
 had not happened (as if it was defectively or improperly done), 
 the same defense will be equable to him after the loss." Add 
 to this the rule deduced by Judge Story: (4) If the work on 
 the thing is by the job, that is, for a stipulated price for the 
 whole work, and the thing should accidentally perish or be 
 destroyed without any fault on either side before the job is 
 completed, independent of any usage of trade, the rule would 
 apply that the thing should perish to the employer and the 
 work to the mechanic.^ 
 
 § 147. Not every failure to perform contract obligations 
 will deprive bailee of entire compensation. — The discus- 
 sion of this would involve many contingencies, more than 
 would be profitable at this time to discuss, but from the men- 
 tion of a few leading features of the subdivision enough can 
 be said for the present. It may be generally stated that, if the 
 work is being done under a special contract, the terms of that 
 contract must be carried out, and if the workman fail to 
 produce the thing as contracted, he will have no remedy 
 under the contract. As, for example, if the workman was to 
 build a house according to certain specifications mentioned 
 and required to be followed by a special contract between the 
 parties, the workman could not recover if he failed to build 
 the house in accordance with the specifications; or, if he does 
 the work unskilfully or improperly, or fails to complete it, he 
 could not recover under the contract. If the work is not com- 
 pleted the contract would be unexecuted, and he could not re- 
 cover while thus in default. The law requires that he perform 
 his undertaking. 
 
 And where the workman does work under a .general con- 
 tract of hire, he is held to a performance of his contract and 
 to use good faith in its performance; but the rule of law de- 
 priving the workman of any compensation is not so fixed as in 
 
 1 Stoiy, Bailments, sec. 436. 
 93 
 
§§ 148, 149.] OKDINAEY BAILMENTS. [PAET I. 
 
 case of a special contract, and the rule seems to have some- 
 what relaxed, and may now be said to have settled down to 
 this: If the work is so badly and improperly done that the 
 thing produced totally fails of being of any use or value, or is 
 wholly inadequate to the purpose for which it was designed, 
 the workman cannot recover any compensation; on the other 
 hand, he might be liable to the employer for the materials used 
 and further damage if it resulted ; but if the thing produced 
 has some value, although imperfectly and inefficiently done, 
 the workman, under a quantum, meruit count, might recover 
 the amount it would be actually worth to the employer under 
 all the circumstances.^ 
 
 If the property or thing is left unfinished, or is badly or un- 
 skilfully wrought upon by the bailee, all because of the wan- 
 ton and wilful neglect and refusal of the workman to perforin 
 his duty in this regard, the workman at most could recover no 
 more compensation than the amount remaining after deducting 
 the damages on account of the injury resulting from his ac- 
 tions from the amount he was to have received ; ^ or the em- 
 ployer may disregard him and hire others to complete the 
 work and pay them therefor out of the contract price agreed 
 upon between the bailor and original bailee; the balance, if 
 any, would belong to the bailee, unless reduced by other re- 
 sulting damages. 
 
 § 148. Ifthe failure to perform is the fault of bailor.— It 
 goes without saying, that if the bailee is prevented from exe- 
 cuting his contract by reason of the fault of the employer, as, 
 for example, by failing to furnish material as stipulated, or in 
 any way hindering or obstructing the work of the workman, 
 or if the plans were altered and the work was thus made more 
 difficult, in such case the workman would not be deprived of 
 compensation on account of failure to complete the work at the 
 time stipulated, or in accordance with former plans. And if 
 the workman was prevented from completing the contract by 
 the employer without just cause or reason, he would be enti- 
 tled to recover what his services were reasonably worth, in an 
 action for work and labor and material furnished. 
 
 § 149. Inevitable accident or irresistible force. — And so 
 if the workman was prevented by reason of inevitable accident 
 
 1 Grant v. Button, 14 Johns. 377. 2 Faxen v. Mansfield, 3 Mass. 147. 
 
 94 
 
OH. X.J LOOATIO OPEEIS BAILMENTS. [§§ 150, 151. 
 
 from performing the contract and was in no way in fault himself, 
 he would be excused for the failure and would not be deprived 
 of compensation to the extent of the reasonable worth of his 
 labor; but in such case the bailor would not be made to suffer 
 by being compelled to pay for more than was really done upon 
 the contract. In all such cases the bailee must be able to show 
 that he exercised ordinary care and diligence to avoid the acci- 
 dent or force, and acted honestly and in the utmost good faith. 
 
 § 150. Reclaiming the property. — This principle may 
 
 be carried further, and it may be laid down as a rule well set- 
 tled that the bailee, acting honestly and in good faith, may and 
 should use reasonable diligence in reclaiming the property that 
 has been injured or temporarily lost by reason of inevitable 
 accident or irresistible force, and to the extent that reasonable 
 diligence requires it in the care and protection of the thing, 
 the bailor will be compelled to compensate the bailee for thus 
 reclaiming the property. As, for example, if the property has 
 been swept away by flood, the bailee, when he finds it, should 
 return it to his control and possession,*and if such an act would 
 be adjudged the conduct of a reasonably prudent man, the 
 bailee may recover reasonable compensation for the extra labor 
 thus bestowed upon the thing. 
 
 § 151. Generally bailee may do the work by an agent or 
 servant. — As a general rule the bailee may perform the labor 
 by other persons employed for the purpose; except in cases 
 where the very nature of the employment requires the per- 
 sonal labor and attention of the workman employed ; as in case 
 of employing a portrait painter to paint a picture, or a pro- 
 fessional man to do some work calling for his personal skill in 
 the performance. But in cases where the work may be dele- 
 gated to others, the bailee may employ agents or servants to 
 perform the labor or assist him in the undertaking. The bailee 
 is liable for the acts of his servants or agents while engaged in 
 carrying on the work, or engaged within the scope of the em- 
 ployment, but they cannot be held to be in any respect the 
 servants or agents of the bailor. Nor are the servants of the 
 bailee the servants of the bailor, nor in any sense acting for 
 him; and so it follows that the liability of the bailor and bailee 
 to third parties is entirely independent of the other. In the 
 case of New York, L. E. dt W. Ry. Co. v. New Jersey Electric 
 
 95 
 
§ 152.] OEDINAEY BAILMENTS. [fAET I. 
 
 By. Co., this question was fully discussed. There the question 
 of contributory negligence of the bailee was claimed to be a 
 defense in an action brought by the bailor, and in the discus- 
 sion of this question the court fully defines the rights and 
 liabilities of the parties in respect to like cases;' the court 
 holding that in an action by the bailor or owner of the prop- 
 erty for its damage or destruction, the defendant, third party, 
 cannot defend upon the ground that the bailee, who at the 
 time had the property in his possession and control, was guilty 
 of contributory negligence; that in no way could the use of the 
 property by the bailee affect the right of action of the bailor. 
 § 152. Where skill as well as care is renuired.— We are 
 here to deal with the higher class of the locatio bailments. We 
 have before mentioned, and in a general way discussed, the sub- 
 ject, but not as fully as is required. The subject embraces that 
 class of labor and care upon the subject of the bailment that is 
 usually denominated skilled labor and care, which, though but 
 ordinary in its class, is nevertheless very much more than the 
 ordinary care required in the ordinary and usual bailment re- 
 lation. It may be well understood that the workman who is 
 to receive material for the construction of a fine and difficult 
 piece of mechanism, as, for example, an expensive piece of 
 jewelry to be set with costly gems; or the construction of an 
 expensive watch, or a carefullj'--constructed mathematical in- 
 strument, must of necessity possess greater skill and be re- 
 quired to exercise a higher degree of care than the blacksmith 
 who is to construct a horseshoe from iron at his forge, or the 
 carpenter who is to build a board fence for the farm, or a cat- 
 tle-barn, and yet the rule of law in each case would be the 
 
 1 N. Y., L. E. & W. Ry. Co. v. N. J. in an action by the bailee for in- 
 
 Electrio Ry. Co., 38 Atl. 828. Held, juries against a third party, occa- 
 
 the servants of the bailee in a bail- sioned by his negligence, the oon- 
 
 ment for hire are not the servants of tributory negligence of the bailee or 
 
 the bailor, and he is not responsible his servants or agents will constitute 
 
 to a third party for the negligence a defense to the action, yet in an ac- 
 
 of the servants of the bailee in re- tion by the bailor, who is the owner, 
 
 spect to the bailment. The bailee against a third party, for injury to 
 
 does not stand in the place of the the bailment, the negligence of the 
 
 bailor, nor represent him in such re- bailee or his servants or agents is not 
 
 lation as to render the bailor liable imputable to such bailor, and will 
 
 for the negligent acts of the bailee not prevent a recovery." 
 or his servants or agents; and while, 
 
CH. X.] LOCATIO OPEEIS BAILMENTS. [§ 153. 
 
 same. First of all, it may be said that when skill as well 
 as care is required by the workman, the law requires of him 
 that — 
 
 § 153. He must exercise the skill adequate to the proper 
 performance of the work. — The very work itself carries with 
 it notice to the workman that it requires more than ordinary 
 labor; that whoever undertakes to perform the labor must 
 possess the skill, and a degree of skill peculiar to the par- 
 ticular requirements of the particular piece of worli. If the 
 bailor brings fine gold and costly gems from which he desires 
 constructed a beautiful necklace, this of itself notifies the work- 
 man that it requires a skilled workman to do this work. The 
 law does not put this upon the ground of a warranty either 
 express or implied, it is a common-law liability which requires 
 the bailee, the workman, to perform the work with that skill 
 and ability which the particular work requires ; he is bound to 
 use such reasonable skill as the undertaking demands.' In 
 Lincoln v. Gay^ cloth was delivered to a dressmaker to be made 
 into a dress without any instructions; the dressmaker made up 
 the cloth wrong side out. The Massachusetts court held that 
 an action could be maintained against her. The court say: 
 " If the dress was delivered to the defendant by the plaintiff 
 without any instructions, the defendant being a bailee for hire 
 was held to that degree of skill and care in the particular occu- 
 pation in which she was engaged, which was that of a dress- 
 maker, which would enable her to do the work intrusted to 
 her in a reasonable and proper manner." ' 
 
 " The relation of the bailor to the bailee is a personal one, 
 and grows out of the confidence the bailor is presumed to re- 
 pose in the skill and fidelity of his bailee when intrusting his 
 property to him for the service intended to be performed upon 
 or toward it. The law implies a contract upon the part of the 
 bailee to perform the service skilfully, and then to return the 
 chattel faithfully on payment for his service."* "Every me- 
 chanic who takes any material to work up for another in the 
 course of his trade, as when a tailor receives cloth to be made 
 
 'Kuehn v. Wilson, 13 Wia 116. 'Jackson v. Adams, 9 Mass. 484; 
 
 2 164 Mass. 5S7. Story, Bailments, sec. 431. 
 
 * Rogers v. Grothe, 58 Pa. St. 414. 
 7 97 
 
§§ 154-156.] OKDINAEY BAILMENTS. [PAET I. 
 
 up into a coat, or a jeweler a gem to be set or engraved, is 
 bound to perforin it in a workmanlike manner."^ 
 
 ^ 154. If the bailee for hire purports to have skill he 
 must use it. — The question is not, has the bailee the skill re- 
 quired to do the work in the given case — the very fact that he 
 holds himself out as one who can do the kind of work required 
 is enough. If he solicits the like kind of work by personal so- 
 licitation or by advertising, he is bound to exercise the skill 
 required, and the law imposes upon him ordinary care in using 
 the skill he claims to have. If the bailee actually possesses 
 the skill required, the law presumes that he is employed be- 
 cause of that fact, and that the bailor has, by reason of the 
 employment, secured not only the performance by him of the 
 labor necessary to carry out the obligation, but that he has 
 also employed and is entitled to his skill and judgment in doing 
 the work required. The maxim of the law in such like cases 
 is " Sjpondet perltiam artis: " he promises to use the skill of 
 his art; and to do anything less than that would be a want 
 of that ordinary care and diligence which the law requires the 
 bailee to exercise ; it would be such negligence as would sup- 
 port an action on the part of the bailor. 
 
 § 155. Ordinary skill required. — ^This, it will be re- 
 membered, is a mutual-benefit bailment, and so the rule obtains 
 that in the performance of the particular work the bailee is 
 only held to exercise ordinary skill; but ordinary skill in this 
 class of labor is upon a higher plane than in cases where the 
 labor required is unskilled labor. It is such skill as the ordi- 
 narily skilful workman in such kind of work would exercise 
 upon his own material in doing the same kind of work under 
 just such circumstances; he must exercise the skill he has; the 
 skill the undertaking requires, and nothing less. "We mean 
 by this that it is at all times ordinary skill, as we have stated, 
 and not extraordinary. 
 
 § 156. The degree of skill and diligence increases in cer- 
 tain cases.— From what has been said it may be inferred, and 
 it is the law, that the degree of skill and diligence increases in 
 proportion to the value, difficulty of performance, and delicacy 
 of the particular work to be done or undertaking to be accom- 
 plished ; as, for example, if one is employed to make iron into 
 
 1 3 Kent's Com. 588; Keith v. Bliss, 10 111. App. 434. 
 
OH. X.J LOOATIO OPiiEIS BAILMENTS. [§§ 157, 158. 
 
 stove castings, the requirements would not be so difficult and 
 particular as an employment to construct some sensitive math- 
 ematical machine; a slight mistake in the former case might 
 be overlooked, but a very* slight mistake in the latter would 
 render the entire machine and all the material and labor value- 
 less. 
 
 § 157. Skilled work by an agent or servant. — To just what 
 extent the bailee for hire can perform the obligation, or do the 
 work by agents or servants, it would be difficult to say except 
 in a particular case. But by way of a general rule it might be 
 said that the employment is generally on account of the per- 
 sonal skill of the bailee, and whenever that is true he cannot 
 delegate the work to another. " Spondet joeritiam artis" we 
 must remember, is the maxim; it is the art of the bailee him- 
 self that has been employed and not the art of another. 
 
 If one who is a portrait painter has been employed to make 
 a fine portrait, the artist could hardly be justified in employing 
 another to do his work; or if one, because of his particular 
 ability at decorations, were employed to decorate ray house, I 
 would be entitled to his own personal efforts, and would not 
 be bound to receive the work of another. On the other hand, 
 if the employment were such that others could assist and not 
 infringe upon that personal engagement, when the labor given 
 to the agent or servant is but common and ordinary, such work 
 as the ordinary workman or person employed could do, in such 
 cases it could be delegated. 
 
 § 158. Defenses of the bailee. — Some of the defenses of the 
 bailee in this class of bailments have been adverted to. It is 
 ordinary skill that is demanded and not extraordinary. 
 
 (1) So, if the iailee can show that the skill and care exercised 
 in the particular case was ordinary, such skill as we have already 
 defined as ordinary, and that the skill claimed by the bailor in 
 the particular case would be more than ordinary — would be 
 extraordinary, — this would be a good defense. Or, 
 
 (2) If iailor dictated how the worTc should he done, in other 
 words, if it was not the skill of the bailee which he desired 
 to be exercised, but the bailor or employer persisted in using 
 his own judgment as to the manner of doing the work, the 
 bailee not being permitted to perform the service as he would 
 have performed it because of the demands of the bailor that 
 
 99 
 
§ 158.] OEDINAET BAILMENTS. [PAET I. 
 
 it should be done otherwise, and the work was done in all 
 respects in accordance with the orders and judgment of the 
 bailor rather than according to the judgment and desire of 
 the bailee, in such case the bailor could not sustain an action 
 against the bailee for failure to perform the work skilfully, or 
 in accordance with the skill and judgment required in the par- 
 ticular case. Or, 
 
 (3) Jf on account of defects in property or material furnished 
 by the bailor the result was not satisfactory, the bailee would 
 not be liable, for it is the dutj' of the bailor to furnish mate- 
 rial fit for the work, and the thing upon which the work must 
 be performed must be such that the result could be attained 
 that is desired; and if otherwise, if the material is not fit, and 
 especially if the bailee, before commencing the work or before 
 using the material, had notified the bailor of his inability to 
 accomplish the desired result on account of the unfitness of 
 the thing or the material, and after such notice the bailor in- 
 sisted upon going on with the work, in such case the bailor could 
 not sustain his action. As, for example, the jeweler is called 
 upon to set fine gems, and the gems furnished are broken or 
 defective; or the miller to produce first-class flour from wheat, 
 and the wheat furnished is of poor quality; or the cabinetr 
 maker to build fine furniture, and the lumber furnished is 
 unfit. Or, 
 
 (4) If bailor refuses to furnish necessary funds to purchase 
 needed articles, and insists that the amount furnished shall be 
 expended, and the best it will purchase be used, and the bailee 
 purchases, and exercises ordinary judgment and skill in mak- 
 ing the purchases, the bailor will not be heard to say that the 
 article is deficient because the article so purchased was not 
 suitable for the purpose, and that therefore the product of the 
 workman is defective. Or, 
 
 (5) Jf the hailor Tenows that the bailee has not the sHU re- 
 quired, and still with such knowledge employs him to do the 
 work, and the thing is defective and not skilfully wrought, in 
 such case the bailor could not recover in an action for damages 
 on the ground of want of ordinary skill in the bailee. The law 
 will not allow the bailor to use his rights or privileges as a 
 weapon to inflict injury; it can only be used as a protection 
 from wrong-doing and to remedy an injury resulting without 
 
 •100 
 
CH. X.] LOCATIO OPEEIS BAILMENTS. [§§ 159, 160. 
 
 fault on his part. To allow recovery in such a case would be 
 to put a premium upon bad faith or carelessness, whereas the 
 utmost good faith and reasonable care is required as well on 
 the part of the bailor as on the part of the bailee. 
 
 § 159. Notice to the bailor that claims for defects must 
 be made within a certain time. — Upon a bailment of goods 
 locatio operis faoiendi, to do work upon them for a reward, the 
 contract implied by law, that the work shall be done with due 
 care and competent skill, arises immediately upon the delivery 
 of the goods to the bailee; and upon the completion of the 
 work for which the bailment was made, it is the duty of the 
 bailee to return the goods to the owner, and no notice impos- 
 ing conditions upon the implied contract given to the bailor 
 after the work is completed would be binding. This principle 
 was well illustrated in the case of Dale v. See^ by the supreme 
 court of New Jersey. A manufacturer sent silk braids to a 
 dyer to be dyed, relying upon the implied contract of dyers to 
 use the proper degree of skill. The twist, after being dyed by 
 the defendants, was returned to plaintiffs, who wove a part of 
 it into silk braids. Subsequentlj', and in a short time, these 
 braids were found to be of greatly inferior value on account 
 of their being oily, which oily condition was due to unskilful 
 dying. The defendants, on returning the dyed silk to the 
 plaintiffs, sent their bill for the same, upon which was printed 
 the following notice: "All claims for deficiencies or damages 
 must be made within three days from date, otherwise not al- 
 lowed." No notice was given the defendants by the plaintiffs 
 until several months after they received this notice. The 
 court held that this was no defense in case of bailments " lo- 
 catio operis faciendi," that the contract between the parties 
 arose immediately upon the delivery of the materials to the 
 bailee, and the bailee could not prescribe conditions under 
 which he would perform the duty after the work has been per- 
 formed. 
 
 § 160. Title to the material used by bailee passes to bailor 
 by accession. — This principle has already been partially dis- 
 cussed. It should be remembered that the thing delivered 
 to the bailee, upon which the service is to be performed, is a 
 bailment, the title to which is at all times in the bailor; and so 
 
 1 5 Lawy. Rep. Ann. 583, — N. J. L. -^ , See cases cited. 
 
 101 
 
§ 161. J OEDINAET BAILMENTS. [PAET I. 
 
 any material used upon it, though furnished by the bailee, be- 
 comes a part of the thing and is absorbed by it, no matter if 
 the materials are of greater value than the thing. This rule is 
 important in cases where the thing is destroyed by unavoid- 
 able accident or irresistible force before its completion ; for in 
 such case, because of the rule of law of accession, the bailor is 
 held liable to pay not only for the labor, but for the material; 
 it is all the property of the bailor when it perishes, and none 
 of it the property of the bailee.' 
 
 § 161. The lieu of the bailee in " locatio operis faciendi" 
 bailments. — We have already discussed, in a general way, the 
 subject of the lien of the bailee in certain cases,^ but as applied 
 to the subject here under consideration it seems to assume 
 much greater importance. We know that the bailee who per- 
 forms labor upon and adds material to the thing by way of 
 repairs, as a general rule has a lien upon the repaired or newly- 
 made chattel for his labor and materials, and that so long as 
 he keeps the thing in his possession, asserting his lien and doing 
 no act inconsistent with the lien, it will be good as against all 
 the world. 
 
 This right of lien has been very much enlarged in later years- 
 Originally at common law the right of lien was confined to 
 cases where persons, by reason of their occupation, were under 
 obligation to receive and care for and do labor on the per- 
 sonal propert} of others; such as common carriers, innkeep- 
 ers, farmers, and the like. In more modern times the right 
 has been materially extended, and now it maj'^ be laid down 
 as a general rule to which there are but few exceptions, 
 " that every bailee for hire, who by his labor and skill has im- 
 parted an additional benefit to the goods of another, has a hen 
 upon the property for his reasonable charges in relation to it, 
 and a right to retain it in his possession until these charges are 
 paid. This includes all such mechanics, tradesmen and labor- 
 ers as receive property for the purpose of repairing, cleansing, 
 or otherwise improving its condition." 
 
 In Wilson V. Martin ' the supreme court of New Hampshire 
 illustrates this doctrine of lien: One had a lien upon some har- 
 
 1 Gregory v. Stryker, 2 Denio, 638; 3 40 N. H. 88, the case of an hostler; 
 Story, Bailments, 423. Yelv. 67; Case v. Waterhouse, 6 East, 
 
 li Ante, § 65. 533; 2 Kent's Com. (Sth ed.) 653. 
 
 103 
 
CH. X.J LOOATIO OPEEIS BAILMENTS. [§ 162. 
 
 ness of the plaintiff for oiling and cleaning and labor bestowed, 
 and plaintiff brought suit to recover them. The court held 
 that he had a right to retain the possession and control of the 
 harness until his charges in that behalf should be paid. 
 
 § 165J. Priority of the lien. — As to whether the bailee's 
 lien obtained because of services, or, as is sometimes said, for 
 betterments upon the property, has priority over other liens 
 depends entirely upon the circumstances under which it was 
 created. It is a general rule that the lien of the workman as 
 against a prior recorded mortgage, or in some of the states a 
 chattel mortgage on file, will not be held a prior lien with- 
 out the consent or acquiescence of the mortgagee obtained 
 prior to the performing of the labor. There are, however, cer- 
 tain circumstances that render a lien of the workman, obtained 
 by reason of labor or repairs made upon the property while in 
 the possession of the mortgagor and at his request, good even 
 against the mortgagee of the property whose mortgage is re- 
 corded or filed as provided by law. These cases seem to be 
 confined to repairs that are made necessary to preserve the 
 property and make it useful. That is the case where the prop- 
 erty, if the repairs were not made, would become useless. The 
 rule is laid down and discussed in the case of Scott et al. v. 
 Delahunt et al} The action was brought to foreclose a lien 
 upon a canal-boat against the owner and the mortgagee — the 
 mortgagee defending. It appeared that the owner, who was 
 running her as master, had taken her to the plaintiff's dry dock 
 for repairs; that the boat had foundered and sunk, and unless 
 the labor was put upon her would have been useless; that -the 
 mortgage of the defendant was a long time prior to the time 
 of making the repairs. The court say: "It must be taken as 
 true that the owner was running this boat with the knowledge 
 and consent of the mortgagees, and that the repairs were nec- 
 essary to repair the damage which the boat had received, and 
 to put her in condition for use. Under such circumstances I 
 am of opinion that plaintiff's lien has priority over defendants' 
 mortgage. The mortgagees having allowed the owner to con- 
 tinue in the apparent ownership of the boat, making her a 
 source of profit, and the means of earning wherewithal to pay 
 off the mortgage debt, the relation so created by implication 
 
 165N. Y. 138. 
 103 
 
§ 162.] ORDINAEY BAILMENTS. [PAET I. 
 
 entitles the owner to do all that may be necessary to keep her 
 in efficient state for the purpose. The boat having been dam- 
 aged and rendered unfit for use, the owner did that which was 
 obviously for the advantage of all parties interested ; he put 
 her into the hands of the plaintiffs to be repaired, and accord- 
 ing to all ordinary usage they ought to have a right of lien on 
 the boat, so that those who are interested in her, and who will 
 be benefited by the repairs, should not be allowed to take her 
 discharged of the lien-. Looking to the rights and interests of 
 the parties, generally, it cannot be doubted that it is much to 
 the advantage of the mortgagee in such case that the mortgagor 
 or owner should be held to have power to confer a right of 
 lien on the boat for repairs necessary to keep her fit for navi- 
 gation. Such is substantially the reasoning of Erie, C. J., in 
 Williams v. Allsup} I am unable to distinguish that case 
 from this, and the reasoning of the learned judges who wrote 
 opinions therein is quite satisfactory. I can perceive no dis- 
 tinction between the two cases, founded upon the facts that in 
 that case the vessel was a steamboat, navigating the ocean or 
 navigable waters connected therewith, while in this case the 
 vessel was a canal boat. In such case the shipwright has pos- 
 session of the vessel as security for repairs, made at the request 
 of the mortgagor, or one standing in his place as the owner, 
 and the same principles that would give them a superior lien 
 in the one case would in the other." 
 
 It will be seen that the priority of the lien in such cases is 
 based upon the element of necessitv, or the securing of the 
 property and making it useful to both the owner and the 
 mortgagee; that by reason of the repairs upon the property 
 there has been a substantial benefit to the mortgagee — a bene- 
 fit to the extent of making it possible to recover the amount 
 of his mortgage.^ 
 
 1 10 C. B. (N. S.) 417. paired. Held, that the person mak- 
 
 2 In the case of Hammond v. Dan- ing the repairs had a lien therefor 
 
 ielson, 126 Mass. 294, a hack, de- as against the mortgagee. Gray, C. 
 
 scribed as in use at certain>stables, J., delivering the opinion, said: A 
 
 was mortgaged, and, by the terms of lien upon personal property cannot 
 
 the mortgage, the mortgagor was to indeed be created without authority 
 
 retain possession and use and enjoy of the owner. Hollingsworth v. Dow, 
 
 the same until default. While so in 19 Pick. 228; Globe Works v. Wright, 
 
 possession, the mortgagor had it re- 106 Mass. 207. But in the present 
 
 104 
 
-OH. X.] 
 
 LOCATIO OPERIS BAILMENTS. 
 
 [§ 163. 
 
 § 163. Agisters and livery-stable men, no lien at common 
 law. — It is because of this principle of law that a common-law 
 lien has by the great weight of authority been denied to agis- 
 ters and livery-stable men. It is said that they are merely 
 keepers of the animals intrusted to them, not imparting sub- 
 stantial benefit or betterment as does the workman who repairs 
 the chattel. Nor are they under any obligation to take the ani- 
 mals into their care and keeping; no. such obligation or duty 
 •resting upon them, as is imposed in case of innkeepers and 
 ■common carriers. 
 
 The agister, or liveryman, is at liberty to do as he pleases 
 ;as to taking the animals, and if he takes them may impose 
 •such terms and conditions as he chooses. He may demand his 
 pay in advance, or may by contract create a lien upon the 
 iproperty for it.' 
 
 ■case such an authority must be im- 
 plied from the facts agreed. The 
 subject of the mortgage is a hack, 
 (that is to say, a carriage let for hire, 
 described in the mortgage as " now 
 ■in use " at certain stables; and which, 
 as the parties have agreed in the 
 -case stated, the mortgagor retained 
 possession of and used agreeably to 
 'the terms of the mortgage. It was 
 .the manifest intention of the parties 
 that the hacli should continue to be 
 .driven for hire, and should be kept 
 in a proper state of repair for that 
 purpose, not merely for the benefit 
 •of the mortgagee, but for that of the 
 mortgagor also, by preserving the 
 ^alue of the security, affording a 
 means of earning wherewithal to 
 ;pay oH the mortgage debt. The 
 -case is analogous to those in which 
 -courts of common law, as well as of 
 admiralty, have held, upon general 
 principles, independently of any pro- 
 -vision of statute, that liens for re- 
 pairs made by mechanics upon ves- 
 sels in their possession take preced- 
 ence of prior mortgages. Williams 
 ■V. AUsup, 10 C. B. (N. S.) 417; The 
 Scio, L. R. 1 Adm. & Ecci. 353, 355; 
 The Granite State, 1 Spr. 277; Don- 
 
 nell V. The Starlight, 103 Mass. 227, 
 333; The St. Joseph, 1 Brown, Adm. 
 203. 
 
 1 Cross V. Wilkins, 43 N. H. 333. 
 In Millikin v, Jones, 77 III. 373, the 
 court below instructed the jury that 
 " the plaintiff had no lien upon the 
 cattle for pasturage; that the law 
 does not give a lien on the stock for 
 pasturage unless there is a special 
 contract that the stock should be 
 especially held for the pasturage." 
 The supreme court held this to be 
 correct. Goodrich v. Willard et al., 
 7 Gray (Mass.), 183. The court say: 
 " The sole question on these excep- 
 tions is whether an agister of cattle 
 has a lien on them for their keeping. 
 He has, by the law of Scotland (3 
 Bell, Com. 110); but the common-law 
 authorities are uniform that he has 
 not, except by special agreement 
 with the owner. No such agreement 
 appears in this case, and the ruling 
 at the trial must therefore be sus- 
 tained. Chapman v. Allan, Cro. Car. 
 371 ; Jackson v. Cummins, 5 M. & W. 
 343; Cross on Lien, 35, 333; 2 Saund. 
 PI. & Ev. (2d ed.) 299; 1 Dane, Abr. 
 332; 2 Kent, Com. (6th ed.) 634, note; 
 Grinnell v. Cook, 3 Hill, 491, 493; 
 
 105 
 
§ 163.] 
 
 OEDINAKY BAILMENTS. 
 
 [faet 
 
 In an early case in Vermont, Cu^nmings v. Harris, the court 
 gives its views for the reason of the rule and says: "The usual 
 cases in which the law creates a lien are, where the person 
 performing services would have no other sure remedy: as a 
 blacksmith shoeing a horse for a stranger; or a watchmaker 
 cleaning a watch for a stranger; or an innkeeper furnishing 
 entertainment for travelers; and, where the persons applying 
 for these services are not strangers, the usage of their deal 
 may be such that the law will create a lien. For instance, the 
 course of their deal may be that payment for their services is 
 alwaj^s made befoi'e their property is taken away. But where 
 the business is done under a personal contract the law implies 
 no lien; but the parties may so form their contract as to create 
 a lien, which the law will enforce."^ And in Grinnellv. Cook, 
 Bronson, J., said in the opinion : " The right of lien has always 
 been admitted where the party was bound by law to receive 
 
 Miller v. Marston, 35 Me. 153. We 
 notice in the editions of Story on 
 Bailments which have been pub- 
 lished since the author's decease, 
 that this settled rule of law is put 
 (we know not why) under a "query," 
 in a note to section 443. It is not so 
 in the editions published during his 
 life. Lewis v. Tyler, 23 Cal. 364. In 
 this case the court discusses the 
 question of the reason for giving to 
 the agister no common-law lien. The 
 court say: " The general principle is, 
 that where the law compels a person, 
 such as an innkeeper or common 
 carrier, to take the care and custody 
 of goods, he shall have a lien upon 
 the goods for his reasonable and just 
 charges therefor; and the same rule 
 applies to a person who, by his labor 
 and skill, has imparted an additional 
 value to the goods. Grinnell v. Cook, 
 8 Hill, 491. But one who merely pro- 
 vides food and takes the care of an 
 animal, as an agister or livery-stable 
 keeper, has no lien on the property, 
 unless there be a special agreement 
 to that effect." Bissell v. Pierce, 28 
 N. Y. 253. The court held that " The 
 law, in the absence or any special 
 
 agreement, will not give to a farmer 
 who pastures horses for hire, a lien 
 upon the horses for the price of keep- 
 ing them. The certificate of the 
 town clerk in whose office a chattel 
 mortgage is filed, stating that a paper 
 is a copy of the original mortgage, is 
 no proof of the existence of the mort- 
 gage. That must be produced and 
 proved, or its non-production ac- 
 counted for, so as to authorize sec- 
 ondary evidence. Nor is the certifi- 
 cate of the town clerk any evidence 
 that the paper purporting to be a 
 copy of the mortgage is a copy. The 
 mortgage, and its contents, must be 
 proved by common-law evidence." 
 McCoy v. Hock. 37 Iowa, 436, held 
 that under a contract for wintering 
 cattle, stipulating that the expressed 
 amount thereof shall be paid before 
 moving the cattle from the agister's- 
 farm, he is entitled to retain them 
 until paid the agreed amount. Jones 
 on Liens, sec. 641; Cross v. Wilkins, 
 43 N. H. 333; Wright v. Sherman, 3 
 a Dak. 290; McGhee v. Edwards, 8T 
 Tenn. 506. 
 1 Cummings v. Harris, 3 Vt. 244. 
 
 lOS 
 
OH. X.J LOOATIO OPEEIS BAILMENTS. [§ 163. 
 
 the goods; and in modern times the right has been extended so 
 far that it may now be laid down as a general rule, that every 
 bailee for hire who by his labor and skill has imparted an ad- 
 ditional value to the goods has a lien upon the property for 
 his reasonable charges. This includes all such mechanics, 
 tradesmen and laborers as receive property for the purpose of 
 repairing, or otherwise improving its condition. But the rule 
 does not extend to a livery-stable keeper, for the reason that 
 he only keeps the horse, without imparting any new value to 
 the animal. And besides, he does not come within the policy 
 of the law, which gives the lien for the benefit of trade. Upon 
 the same reasons the agister or farmer who pastures the horses 
 or cattle of another has no lien for their keeping, unless there 
 be a special agreement to that effect."^ 
 
 The supreme court of Pennsj^vania has not indorsed this 
 doctrine, but in the face of the great weight of authority has 
 held that the agister has a common-law lien upon the animals 
 for their keep. They have followed the reasoning of Chief 
 Justice Gibson in Steinman v. WilJcins,- an early case, and one 
 who reads it cannot help but recognize that it is well reasoned 
 if it has not been generally followed. He says: " PVom the 
 case of a chattel bailed to acquire additional value by the labor 
 or skill of an artisan, the doctrine of specific lien has been 
 extended to almost every case in which the thing has been im- 
 proved by the agency of the bailee. Yet, in the recent case of 
 Jackson V. Cummings (5 Mees. & Welsh. 342), it was held to 
 extend no further than to a case in which the bailee has di- 
 rectly conferred additional value by labor or skill, or indi- 
 rectly \>j the instrumentality of an agent under his control; in 
 supposed accordance with which it was ruled that the agist- 
 ment of cattle gives no lien. But it is difficult to find an argu- 
 ment for the position that a man who fits an ox for the 
 shambles, by fatting it with his provender, does not increase 
 its intrinsic value by means exclusively within his control. 
 There are certainly cases of a different stamp, particularly 
 Bevan v. Waters (Mood. & Malk. 235), in which a trainer was 
 allowed to retain for fitting a race-horse for the turf. In JacJc- 
 
 iGrinnell v. Cook, 3 Hill (N. Y.), 2 7 Watts & Serg. 466. 
 485, 38 Am. Dec. 306. 
 
 107 
 
g 163.] ORDINAKY BAILMENTS, [PAET I. 
 
 son V. Cummings we see the expiring embers of the primitive 
 notion that the basis of the lien is intrinsic improvement of 
 the thing by mechanical means; but if we get away from it all, 
 what matters it how the additional value has been imparted, 
 or whether it has been attended with an alteration in the con- 
 dition of the thing ? It may be said that the condition of a 
 fat ox is not a permanent one; but neither is the increased 
 value of a mare in foal permanent; yet in Searfe v. Morgan 
 {■i Mees. & Welsh. 270), the owner of a stallion was allowed to 
 have a lien for the price of the leap. The truth is, the modem 
 decisions evince a struggle of the judicial mind to escape from 
 the narrow confines of the earlier precedents, but without hav- 
 ing as yet established principles adapted to the current trans- 
 actions and convenience of the world. Before Chase v. West- 
 more (5 Maule & Selw. 180), there was no lien even for work 
 done under a special agreement; now, it is indifferent whether 
 the price has been fixed or not. In that case. Lord Ellenbor- 
 ough, alluding to the old decisions, said that if they ' are not 
 supported by law and reason, the convenience of mankind cer- 
 tainly requires that our decisions should not be governed by 
 them;' and Chief Justice Best declared in Jacois v. Latour 
 (5 Bingh. 132), that the doctrine of lien is so just between 
 debtor and creditor that it cannot be too much favored. In 
 Klrkham v. Shawcross (6 T. E. 17), Lord Kenyon said it had 
 been the wish of the courts, in all cases and at all times, to 
 carry the lien of the common law as far as possible; and that 
 Lord Mansfield also thought that justice required it, though 
 he submitted when rigid rules of law were against it." 
 
 This court has followed this doctrine through all the years 
 to the present. In the case of Yearsley v. Gray^ decided in 
 
 1 140 Pa. St. 238. In the last case horses or other animals, the agister 
 
 cited the court says: "It is a well- has a lien on them all, not only for 
 
 settled rule of law that an agister is their proportionate part of the sum 
 
 not bound to restore a horse which due for the keep of all, but for the 
 
 he has taken to pasture until his com- entire amount due upon all the ani- 
 
 pensation is paid or tendered. Megee mals embraced in the contract. 
 
 v.Beirne,39Pa. St. 50; Mathiasv.Sel- Young v. Kimball, S3 Pa. St. 19S; 
 
 lers, 86 Pa. St. 486. This is because Hensel v. Noble, 95 Pa. St. 345. In 
 
 the agister has a common-law lien for that case the defendant had taken 
 
 its keep. And it is equally well set- a number of plaintiffs' horses and 
 
 tied that, where there is an entire cows to pasture, for a compensa- 
 
 contract for the keepof a number of tion agreed upon. The plaintiffs at- 
 
 108 
 
OH. X.J LOOATIO OPEEIS BAILMENTS. [§§ 164, 165. 
 
 February, 1891, many interesting cases will be found cited in 
 the opinion and in the brief of counsel for the appellee. 
 
 § 164. Lien by statute. — In most of the states this whole 
 question is regulated by statutes which give to the agister, 
 the liveryman, the farmer, the ranchman, and those who keep 
 and care for cattle, sheep, horses and other animals, a lien upon 
 the animals so kept and cared for, for their keep. 
 
 § 165. Chattel mortgage takes precedence over lien. — The 
 question as to whether a chattel mortgage which is duly filed 
 or recorded as required by the statute shall take precedence 
 over the lien of an agister created by statute has been before 
 the courts in several cases. This presents a very different 
 case from the one discussed in the preceding chapter. There 
 the question was one of benefit and betterment to the sub- 
 ject of the bailment, and often one of necessity; here that 
 question is not involved, and so the weight of authority is that 
 a chattel mortgage which has been properly executed, filed or 
 recorded as the law requires will take precedence over the 
 lien of the agister. It is based upon the principle that the 
 mortgage, having been exocuted and properly filed, becomes a 
 public record, and the law presumes that every one has notice 
 of its existence and of the lien it creates; that therefore the, 
 agister had notice of the existence of this lien before he de- 
 voted the care and furnished the supply of feed to the ani- 
 mals bailed to him. 
 
 In a South Dakota case' the mortgage was duly executed 
 and filed in the oifice of the register of deeds of the proper 
 county as required by the statute. Subsequent to that time the 
 mortgagor, being in possession of the stock, left them with the 
 defendant to be fed and taken care of. The defendant kept 
 
 tempted to take away one of the latter, the defendant had more se- 
 horses without paying or oflEering to curity than was necessary, the obvi- 
 pay for its keep. The defendant de- ous remedy was to pay for their cat- 
 nied their right to do so, and the tie and take them away. We know 
 plaintiffs brought replevin for the of no case in which a debtor can re- 
 horse. Their contention was that quire his creditor to give up a por- 
 the animals that were left were more tion of his security without payment 
 than adequate to secure the unpaid of the debt." 
 
 bill. This may be so, but the defend- i Wright v. Sherman, 17 L. K. A. 
 
 ant had a right to all the security in 792; Johnson v. Hill, 3 Stark. 173 
 
 his hands, and this right could not Broadwood v. Granasa, 10 Exch. 417 
 
 be taken from him at the will of the Grinnell v. Cook, 3 Hill (N. Y.), 485 
 
 plaintiffs. If, in the opinion of the Bissell v. Pierce, 38 N. Y. 253. 
 
 109 
 
§ 166.] OEDINAEY BAILMENTS. [PAET I. 
 
 and fed the stock without any knowledge on the part of the 
 plaintiff, the mortgagee, and received no pay. Therefore, when 
 the action was brought by the plaintiff to get possession of the 
 stock under his mortgage, the question of priority between the 
 two liens was presented. The court say: "When defendant 
 took this stock to pasture he took it knowing (for the filing of 
 the mortgage notified him) that plaintiff had a mortgage upon 
 it to secure an indebtedness not yet due. He knew that such 
 mortgage constituted an existing lien upon such stock at the 
 time he took it to pasture. (Citing statute.) He knew that 
 plaintiff had a right, whenever he might choose to do so, to 
 take possession of the stock, for the mortgage, of which he had 
 notice, so provided. He knew, for the said section 4358 so de- 
 clares, that no person whose interest is subject to the lien of 
 the mortgage may do any act which will substantially impair 
 the mortgagee's security; he knew that to just the extent that 
 another charge was put upon the property prior to plaintiff's 
 mortgage, his securitj^ would be impaired. He knew that 
 under the law and terms of the mortgage the mortgagors were 
 entitled to the possession of the stock, and that in reason and 
 according to custom the mortgagors so in possession would be 
 expected to care for and feed them. For the purpose of deter- 
 mining his right in this matter he knew of these facts as well 
 as though he had been personally and actually informed of 
 them at the very time he took the stock." 
 
 In the case of Chapman v. First JVat. Baiik.,^ the question 
 arose as to whether a lien created by statute in favor of livery- 
 stable keepers for the keeping and feeding of stock should have 
 precedence over a mortgage on the animals previously given 
 by their owner; and in that case it was held that "A statute 
 giving livery-stable keepers a lien for the keeping of animals 
 placed in their charge without the knowledge or consent of 
 the mortgagee does not make such lien superior to that of a 
 prior duly recorded mortgage on the animals, even though the 
 law-day has passed and the animals are still in the mortgagor's 
 possession." In this case there is a large number of cases 
 cited both in briefs and in the opinion of the court. 
 
 § 166. Other questions previously discussed. — The dis- 
 cussion of this subject in a foAner chapter of this book will be 
 sufficient as to the other questions that present themselves. 
 
 198 Ala. 528, 23 L. R. A. 78. 
 110 
 
OHAPTEE XI. 
 
 LOCATIO CUSTODIES. 
 
 § 167. The letting of care and cus- 
 tody of the thing for hire. 
 
 168. What this subdivision em- 
 
 braces. 
 
 169. Depositum. 
 
 170. The subject discussed. 
 
 171. Warehouseman. 
 173. Public warehouses. 
 
 173. Bonded warehouses. 
 
 174. Delivery — To create liability. 
 
 175. Sale or bailment. 
 
 176. The warehouse receipt. 
 
 177. Warehousemen may insure 
 
 the property. 
 
 178. Usage and general course of 
 
 business to a certain extent 
 defines the duty of ware- 
 houseman as bailee. 
 
 179. At common law a warehouse 
 
 receipt in a technical sense 
 is not negotiable. 
 
 180. Warehouseman not permitted 
 
 to impeach his receipt. 
 
 181. Negotiability of receipt pro- 
 
 vided by statute. 
 183. Common carriers, when ware- 
 housemen. 
 
 183. As to goods awaiting delivery. 
 
 184. The New Hampshire rule. 
 
 185. The third class of cases. 
 
 186. Wharfingers. 
 
 187. When the liability begins. 
 
 188. When the liability ends. 
 
 189. Factors or commission mer- 
 
 chants. 
 
 190. Storage-house keepers. 
 
 191. Some of the duties of the 
 
 bailor. 
 193. Dangerous articles. 
 
 193. When the liability of the stor- 
 
 age-house keeper begins. 
 
 194. When the liability ends. 
 
 195. Storage-house keepers and 
 
 warehousemen the same. 
 
 196. Safe deposit and trust compa- 
 
 nies. 
 
 197. These deposits not gratui- 
 
 tous — Differ from a mere 
 depositum. 
 
 198. The nature of the bail- 
 ment and the diligence re- 
 quii-ed. 
 
 199. Other classes of custodi- 
 ans. 
 
 300. Liability of bailee in custodice 
 
 bailments. 
 
 301. When does the liability com- 
 
 mence and end. 
 
 303. Proper place and kind of stor- 
 age. 
 
 208. Diligence must keep pace with 
 improvements. 
 
 204. Proof of negligence. 
 
 205. Does the burden of proof of 
 
 negligence shift. 
 
 206. The question summed up and 
 
 the rule settled. 
 
 207. Contributory negligence. 
 
 308. Negligence of servants. 
 
 309. Unauthorized use of chattels. 
 
 310. Delivery, misdelivery, non-de- 
 
 livery. 
 211. Confusion of goods. 
 312. Criminal liability. 
 
 213. Termination. 
 
 214. Conversion. 
 
 215. Compensation — Lien. 
 
 § 167. The letting of care and custody of the thing for 
 hire. — This is one of the mutual-benefit bailments, or more 
 
 111 
 
§§ 168-170.] OEDINAEY BAILMENTS. [pART I, 
 
 particularly speaking, one of the "hiring" or "looatio" bail- 
 ments, and the general rule governing liability, where the bail- 
 ment is for the benefit of both parties, obtains. The bailor 
 and bailee are held to ordinary diligence and are liable for ordi- 
 nary negligence. 
 
 § 168. What this subdivision embraces. — Within this subdi- 
 vision are included numerous and important classes of business. 
 It embraces some of the most important transactions in our 
 business world, and the liability and duty of the parties is fixed 
 and settled by the proper application of the rules governing 
 the mutual-benefit bailment relation. The extent of the busi- 
 ness falling within this subdivision is almost inestimable. As 
 we are transported by rail or ship into our great, busy com- 
 mercial cities, we are struck with the immensity of the trade 
 in the handling of grain and produce by the immense elevators 
 that line the shores of the principal ports; the great ware- 
 houses in operation in every city in the land for the storage of 
 chattels of every description; and these but constitute one 
 branch of the business under consideration. The numerous 
 trust companies, with their system of safe-deposit vaults for 
 the care and custody of money, bonds, stocks and securities; 
 the banking houses that are looking after the special deposits 
 of their customers; the wharfinger who receives and cares for 
 the immense quantities of freight to be shipped by land and 
 sea, — all impress us with the importance and vastness of the 
 interests that are clustered within the limits and confines of 
 this important subdivision — Locaiio oustodim. 
 
 § 169. Deposituni. — To the custody bailments belong 
 
 " depositum " as well as the custodlw bailments, where care and 
 custody of the subject of the bailment is for hire. The sub- 
 division '■'■ Dtjiositum" has already been discussed, and in this 
 chapter we are to deal only -^ith " looatio custodm " bailments, 
 belonging to the third general subdivision, or bailment for the 
 benefit of both bailor and bailee. 
 
 § 170. The subject discussed. — The usual rights, duties and 
 liabilities of the parties in this class of bailments have been so- 
 fully discussed in chapter III of this volume' that it is not 
 deemed necessary to further treat of them here. We shall 
 
 1 Ante, §§ 33, eto. 
 112 
 
CH. XI.] LOCATIO CUSTODI^. [§§ 171, 172. 
 
 therefore confine the discussion to some of the particular or 
 specific kinds of the " looatio cmtodiw " bailments. 
 
 § 171, AVarehouseman. — A warehouseman has been defined 
 to be "a person who receives goods and merchandise to be 
 stored in his warehouse for hire." ^ From this definition it may 
 be seen that this comprises a large and important class of busi- 
 ness: those who follow the business of furnishing storage of 
 chattels for hire, such as the storing of grain or furniture or 
 freight, as, for example, the common carriers who furnish stor- 
 age for freight that is often left beyond the limit of time for 
 which they are liable as common carriers; the proprietors of 
 flour mills who store grain for their customers, and others who, 
 directly or indirectly, become custodians of property and re^ 
 ceive compensation therefor. 
 
 In Owen v. Boyle ^ the court in its opinion used this language : 
 " The building or apartment where the salt was stored was 
 used and appropriated by the occupant not for the deposit and 
 safe-keeping or selling of his own goods, but for the purpose of 
 storing the goods of others placed there in the regular course 
 of commercial dealing and trade, to be again removed or re- 
 shipped, and the building or apartment had acquired the char- 
 acter of a warehouse." 
 
 The court in the case of Beg. v. Sill, an English case, de- 
 fined a warehouse to be a place where one stores or keeps 
 goods which are not immediately wanted for sale. 
 
 § 172. Public warehouses. — In some of the states statutes 
 have been enacted making certain warehouses public ware- 
 
 1 Bouvier, Law Diet. goods stolen were in that cellar. 
 
 2 22 Me. 47. The business of main- There was no inner communication 
 taining stock-yards for the reception between the house and the cellar, but 
 of cattle belonging to others than the the cellar was entered by a stairway 
 proprietors of the yards has been from the street. It was objected for 
 held to be analogous to the business the prisoner that such cellar was not 
 of warehousemen. Del., L. & W. R. a warehouse under the statute. 
 Co. V. Central Stock Yard T. Co., 19 Rolfe, B., said: "A warehouse in 
 Atl. 185 (N. J.). The prisoners were common parlance meant a place 
 indicted under the statute for break- where a man stored or kept his goods 
 ing and entering a warehouse. It which were not immediately wanted 
 appeared that the prosecutor occu- for sale, and there was no reason to 
 pied a shop; in a cellar under the suppose that the legislature used the 
 shop he kept such goods as he had term in this statute in a sense repug- 
 on hand at the time of the auction nant to its ordinary meaning." 
 
 to expose for sale in his shop, and the 
 
 8 113 
 
§ 172.] OEDINAEY BAILMENTS. [PAET I. 
 
 houses, putting upon them a requirement analogous to the re- 
 quirement of innkeepers and carriers, namely, that they shall 
 receive and care for the property presented for storage, sub- 
 ject, of course, to the limitation that it is fit for storage, 
 and that the price must be either paid or tendered if de- 
 manded. This, however, is not generally the law; ware- 
 houses as a rule are private. The reasoning with reference to 
 warehouses being public is quite fully set forth in the opinion 
 of the court in the case oi Nash v. Page} The court say: 
 " When he undertakes to sell at public auction and to conduct 
 the business as a public warehouseman, he assumes an obliga- 
 tion to serve the entire public, and has no right to select his 
 bidders or to refuse to receive the tobacco of producers when 
 shipped to him. This obligation exists not only by reason of 
 the statute, but under the rule of common law. "We perceive 
 no difference between this character of warehouses and that of 
 winehouses or grainhouses, and the rule applied to the latter 
 required them to discharge the duty of receiving the wine and 
 grain shipped to them by the owner. This is the first time in 
 the history of the state that warehousemen controlled and regu- 
 lated their business by legislation and asserted their right to 
 select their customers, including both the producer and the 
 buyer." 
 
 In some of the courts it has been held that warehouses which 
 receive grain and commodities that are alike and mix them, 
 issuing receipts for the same, selling and shipping from the 
 common mass, are public warehouses. But generally these 
 opinions have been founded upon the statutes of the particular 
 states. ■ The constitution of the state of Illinois, article XIII, 
 title Warehouses, defines in the following language public ware- 
 houses: "All elevators or storehouses where grain or other 
 property is stored for compensation, whether the property 
 stored be kept separate or not, are declared to be public ware- 
 houses." ^ It may, however, be generally said that where there 
 is no statute or constitutional provision which requires cer- 
 tain warehouses to be public warehouses, a warehouseman is 
 not required by any general rule of law to receive goods for 
 storage against his will, but that the relation of warehouseman 
 
 1 80 Ky. 539. 2 National Bank v. Langdon, 28 111. App. 401. 
 
 114 
 
CH. XI.] LOCATIO CUSTODIJi. [§§ 173, 174. 
 
 grows out of the contract relation of bailor and bailee, and is 
 not analogous to an innkeeper or common carrier.^ 
 
 § 173. Bonded warehouses. — The bonded warehouses are 
 warehouses that are designated by the secretary of the treas- 
 ury of the United States in which are to be stored merchan- 
 dise imported into the United States until such time as the 
 customs duty shall be paid. Such warehouses are usually pri- 
 vate warehouses, and are in the custody of the owner of the 
 warehouse and some customs olHcer designated to act for the 
 United States. The government, however, assumes no respon- 
 sibility for the safe-keeping of the merchandise. Merchandise 
 so deposited may be withdrawn at any time within one year 
 upon the payment of the duties and charges; and after one 
 year until the expiration of three years on paj'ment of the 
 duty and charges and ten per centum per annum in addition.^ 
 
 While the United States does not assume any responsibility 
 for the safe keeping of the merchandise, the owner of the 
 warehouse is under the same obligation and liability as any 
 other warehouseman, and is answerable to the owner of the 
 goods to the extent of such liability.' 
 
 In Macklin v. Fraser * the court say : " Without referring 
 in detail to the laws of congress regulating the rights, duties 
 and powers of the keepers of bonded warehouses, we hold that 
 the appointment by the internal* revenue department of store- 
 keepers who are invested with the joint custody, with the ware- 
 housemen, of the warehouse and the goods stored therein, does 
 not lessen in any degree the diligence which the latter as bailees 
 for hire are by the general laws required to exercise to prevent 
 fire from being communicated to their houses or to the goods in 
 their custody. The right of the storekeeper to ingress into the 
 warehouse for the discharge of certain duties imposed upon 
 him by law does not exonerate the warehouseman from the 
 use of at least ordinary diligence in preventing the goods 
 stored therein from being damaged or destroyed by the reck- 
 lessness or carelessness of their officer." 
 
 §174. Delivery — To create liability.— Liability of the 
 warehouseman can only be created by a delivery of the prop- 
 
 i Delaware, etc. R. Co. v. Central sciaflin v. Myer, 75 N. Y. 260; 
 Stock Yard Co., 45 N. J. Eq. 50. Fairfax v. Central R. Co., 67 N. Y. 11. 
 
 2U. S. R. S., §§ 3954-3008. ^^ Bush (Ky.), 3. 
 
 115 
 
§ 175. J OEDINAEY BAILMENTS. [PAET I. 
 
 ertyfor storage; that is to be stored and cared for. And so it 
 is necessary that the property should come fully into the pos- 
 session of the warehouseman so that it may be fully under his 
 control, or the control of his servant or agent as bailee and 
 custodian. It is not really necessary that the property should 
 be stored in the warehouse in order that the liability of the 
 warehouseman should attach. Where the property has been 
 received upon his premises, and is under his control, having 
 been delivered to him expressly or by implication, so that it 
 may be said that it has passed from the possession and control 
 of the owner and bailor into the possession and control of the 
 warehouseman, he is liable as a warehouseman; and where the 
 warehouseman has consented to take charge of the goods be- 
 fore thej' reached his warehouse, he has been held to be liable 
 from that moment.^ 
 
 It therefore goes without saying, if there has been no de- 
 livery of the property and no acceptance, either actual or con- 
 structive, there would be no liability as warehouseman. 
 
 § 175. A sale or a bailment. — It often becomes an impor- 
 tant question to determine whether the delivery of the prop- 
 erty constitutes a bailment for custody or a sale. We have 
 already discussed the question in a general way,^ and it is per- 
 haps unnecessary to enter into any extended discussion of it 
 here. • 
 
 An interesting discussion may be found in Lyon v. Lennon^ 
 where it was held that the delivery of wheat to the defendant, 
 the receipt being in the following language: "Eeceived of 
 Harry Lyon, 53 bushels, 50 pounds of wheat. Not transfer- 
 able without notice;" the testimony and explanation of the 
 receipt disclosing that the defendant was in the habit of re- 
 ceiving wheat at his elevator and giving receipts therefor, and 
 that on presentation of the receipt he would pay the market 
 price at the date of presenting the same, that such a trans- 
 action was a sale and not a custody bailment. The court in 
 the opinion say: "We recognize the doctrine that if wheat is 
 delivered in pursuance of a contract of bailment, the mere fact 
 
 iDucJjer v. Barnett, 5 Mo. 97; Pa. St. Ill; Farrell v. Richmond R. 
 Story on Bailm. (9th ed.), g 44.5; Co., 102 N. C. 890. 
 
 Merrill v. Old Colony R. Co., 11 Al- "-Ante, § . 
 
 len (Mass.), 80; Rogers v. Stophel, 33 HOG Ind. 567, 
 
 116 
 
CH. XI.j LOCATIO CDSTODf^. [§ 176. 
 
 tbat it is mixed with a mass of like quality, with the knowl- 
 edge of the depositor or bailor, does not convert that into a 
 sale which was originally a bailment. Upon the facts in this 
 case there was no bailment.^ 
 
 "Where grain is received by a dealer under a contract, either 
 express or implied, to pay the person delivering it the market 
 price whenever he chooses to demand it, and such grain is 
 mixed with other of like quality in bins from which shipments 
 are being made daily, there being no understanding that the 
 owner shall have the right to demand either his own or a like 
 quality of other grain in return, the dealer becomes the owner 
 of the grain and is liable to pay for it whenever called upon. 
 In such a case the contract from the beginning furnishes the 
 criterion by which the price is to be fixed, and it is not invalid.^ 
 
 § 176. The warehouse receipt. — On receipt of the prop- 
 erty the warehouseman, or bailee, should in due course of busi- 
 ness deliver to the bailor, the owner of the property, a receipt 
 for the same. There is no particular form of receipt required ; 
 usuall}'^ it contains the date the property is received, with a 
 description of the property, from whom received, and an 
 agreement to redeliver the property on demand to the bailor 
 or his order. 
 
 It is not unusual for an elevator receipt to contain an agree- 
 ment, in connection with the receipt, providing as to how the 
 property shall be kept and the amount to be charged, and 
 often putting upon the property a lien for the payment of 
 money. In many of the states the receipt to be given is regu- 
 lated by statute, and often the statutes require certain formali- 
 ties; the courts have often been called upon to determine what 
 shall be deemed a proper receipt. 
 
 " A warehouse receipt need not be in any particular form. 
 An instrument intended simply as a memorandum of the 
 amount on storage, if signed by the warehouseman, has an as- 
 signable quality, and an indorsement and delivery of it to one 
 
 1 Nelson v. Brown, 44 Iowa, 475. constitutes a contract of' bailment. 
 
 The court held that a contract ac- which is converted into a sale when- 
 
 knowledging the receipt of grain for ever the bailee disposes of the grain, 
 
 storage, " loss by fire and the ele- Nelson v. Brown, 53 Iowa, 455. 
 
 ments at the owner's risk," with the " McConnell v. Hughes, 29 Wis. 
 
 option to the party receipting it to 537; Richardson v. Olmstead, 74 111. 
 
 return grain of equal test and value, 31 3, 
 
 117 
 
§ 170.] oehinaey eailmekts. [pai;t i. 
 
 who makes advances upon the faith of it renders the ■ware- 
 houseman liable to the holder of it for the goods it represents." ' 
 And in Ihirris v. Bradley, the court held that an instrument 
 executed and signed by warehousemen, in the following words, 
 " Received in store for account of B. & W., 3,000 sacks of corn," 
 is a warehouse receipt, having an assignable or negotiable 
 value. ^ 
 
 It has been held by some of the courts that where the receipt 
 was given by one who is not a warehouseman, it will not be 
 held to be good in the hands of an assignee as against the cred- 
 itors of the owner. In the case of Geilfuss v. Corrigan et al.'- 
 the supreme court of Wisconsin so held. In that case storage 
 receipts were issued by a debtor to its creditor on a quantity of 
 pig iron held in its yards for the purpose of allowing its cred- 
 itor to raise money upon the receipts as collateral. The iron 
 was not placed in the hands of a regular warehouseman for the 
 reason that it would be, as the evidence shows, less expensive 
 for the company, debtor, to issue the receipts itself. The receipts 
 were issued and assigned, and afterwards the property was 
 levied upon by a creditor. The court held that the transaction 
 could not be a pledge of the property for the reason that it was 
 not in the possession of the pledgee; that it was not a chattel 
 mortgage for the reason that there was no sale with a defeas- 
 ance clause. The court say: '■'■ Bona fides does not avail the 
 pledgee in the absence of delivery and possession either actual 
 or constructive. There was confessedly no actual deliver^' here, 
 and the only thing that can be claimed to be a symbolical or 
 constructive delivery is the indoi'sement and delivery of the 
 false receipts; hence the question comes whether a delivery of 
 the receipts under the circumstances is a constructive delivery 
 of so much iron. Had they been in fact warehouse receipts, 
 the transfer and indorsement thereof by way of pledge woukl 
 have operated as a sufficient constructive delivery of the prop- 
 erty both by the common law and by the statute. 
 
 " Bills of lading and railroad receipts are b}' statute placed 
 upon the same footing. The reasons for this rule are very ap- 
 parent. In such' cases the property itself is in the hands of a 
 
 1 Jones on Pledges, sec. 208. 3 70 N. W. 306. 
 
 2 Harris v. Bradley, 2 Dill. (U. S.) 384. 
 
 118 
 
CH. XI.J LOCATIO CUSTODLE. [§ 176. 
 
 third person or corporation instead of in the possession of the 
 vender or pledger. Consequently it does not furnish any 
 false basis of credit, nor is any creditor deceived, because it is 
 well understood that goods in the hands of warehousemen or 
 carriers are or may be the property of others, and by the long 
 usage of trade subject to just this mode of transfer. No such 
 considerations, however, apply in the case of goods in the pos- 
 session of the vender or pledger, or in some third person who 
 is not a warehouseman or wharfinger, and we know of no rule 
 which makes the mere delivery of a receipt a constructive de- 
 livery of the property in pledge in such a case." 
 
 In Shepherdson v. Cary^ the court say: "To uphold the re- 
 ceipt as a proper warehouse document transferring the title to 
 the property, and operating as a good constructive delivery of 
 it to the vendee, it must in all cases distinctly appear that it 
 was executed by a warehouseman, one openly engaged in these 
 cases and in the usual course of trade." If, however, it should 
 appear that the goods were placed in the possession of a third 
 person as custodian by the bailor, and an order given upon the 
 custodian of the goods directing him to hold the property for 
 the pledgee, and this is brought home to the knowledge of the 
 custodian, in such case the courts have held that it would be a 
 sufficient delivery and change of possession of the property, 
 and this for the reason that the property is placed beyond the 
 control of the pledgor or vendor. 
 
 In the case of Sinslieime-r et al. v. Whitely ^ the court held 
 that the receipt given was not a warehouse receipt; " that where 
 
 129 Wis. 34-42; Whitaker v. Sum- goods mentioned in such receipts. 
 
 ner,20 Pick. 399; Tuxworth v. Moore, State v. Bryant, 63 Md. 66. A receipt 
 
 9 Pick. 347. for a quantity of petroleum, given 
 
 243 Pac. 1109; Lowrie v. Executrix, to the owner by the superintendent 
 
 75 Cal. 349. " A receipt by A. B. & of his factory, where a larger quan- 
 
 Go., in form: Received on storage tity was stored, no oil being set apart 
 
 in my canning house, from E. B. M. as covered by the receipt, which was 
 
 & Co., seventeen hundred and twenty subsequently transferred by the 
 
 cases of 3x tomatoes, my own pack- owner, by indorsement, as collateral 
 
 ing. Deliverable to order of E. B.M. security for a loan, was held not a 
 
 & Co., only on production of this re- warehouse receipt within the mean- 
 
 ceipt properly indorsed,' was held ing of the New York statute (Laws 
 
 not a ' warehouse or storage ' re- 1858, ch. 326), providing that any per- 
 
 ceipt, within Marj'land Acts 1876. son to whom warehouse receipts are 
 
 ch. 262, punishing the unlawful de- transferred by indorsement shall be 
 
 livery by unauthorized persons of deemed the owner so far as to give 
 
 119 
 
§ 177.] OltDINAEY BAILMENTS. [PAET I. 
 
 produce is left with the weigher, who stores it without charge 
 a receipt given by the weigher, merely reciting that the prod- 
 uce had been weighed, and stating its weight, is not a ware- 
 house receipt, the transfer of which as security constitutes a 
 delivery of the produce, rendering the pledge valid as against 
 attaching creditors of the pledgor." 
 
 From this discussion of what is not a receipt can be under- 
 stood what is required in a valid receipt. 
 
 §177. Warehousemen may insure the property. — There 
 seems to be no question but that the warehouseman or wharf- 
 inger may insure the property in his possession in his own 
 name, and in case of loss collect the whole amount of insur- 
 ance for the satisfaction of his claims against the goods or 
 property, holding the residue for the owner, and no permission 
 from or notice to the owner is necessarj' to effect such in- 
 surance.^ 
 
 It may be said to be a general rule that the warehouseman 
 is not bound to insure the property left in his custody unless 
 there is some special undertaking so to do, in which case he 
 would be bound to do so;- but circumstances might be such 
 that the courts would hold that ordinary diligence would re- 
 quire the custodian to insure the property. As, for example, 
 where the property belongs to the estate of an infant who has 
 little or no knowledge or experience in matters of business, 
 and ordinary business care and prudence would demand that 
 the property be insured, where by the terms of the contract of 
 storage, or by agreement, the warehouseman agrees to insure 
 
 validity to any pledge, lien or trans- ton Press Co., 89 Tenn. 1. "The law 
 
 fer by such person. Yenni v. Mc- seems to be well settled that "a per- 
 
 Namee, 45 IS. Y. 614. A weighmas- son having goods in his possession as 
 
 ter's ticket, witii the word 'stored' consignee or on commission may id- 
 
 writteii on its face, is not a ware sure them in his own name, and in 
 
 houseman's receipt entitling the the event of loss recover the full 
 
 holder to recover thereon, under amount of the insurance, and, after 
 
 Iowa Code, sec. 2171, regardless of satisfying his own claim, hold the 
 
 the disposal of the grain covered balance as trustee for the owner." 
 
 thereby. Cathcart v. Snow, 64 Iowa, Hough v. Peoples' F. Ins. Co., 36 JId. 
 
 584." 398; ^tna Ins. Co. v. Jackson, 16 B. 
 
 1 Home Ins. Co. V. Baltimore Ware- Mon. (Ky.) 243; Siter v. Moritz, 13 
 
 house Co., 9.S U. S. .")37; Baxter v. Pa. St. 218. 
 
 Hartford Ins. Co., 11 Biss. (U. S.) 306; 2StoryonBailm.,sec.456; Schouler 
 
 Lancaster Mills v. Merchants' Cot- on Bailm., sec. 110. 
 
 120 
 
CH. XI.J 
 
 LOOATIO CUSTUDI^. 
 
 [§ n^. 
 
 the property and fails to do so, he is liable in case of loss to the 
 owner because of his neglect. If, however, the owner did not 
 rely upon the warehouseman, and effected the insurance him- 
 self, he could not Sustain an action against him for the neglect.' 
 Mr. Justice Gray, in Eastern R. Co. v. Relief Fire Ins. Co.,'' says : 
 " By the law of insurance any person has an insurable inter- 
 est m property by the existence of which he receives a benefit, 
 or by the destruction of which he will suffer a loss, whether he 
 has or has not any title in or lien upon or possession of the 
 property itself. Thus, a common carrier has an insurable in- 
 terest in the goods carried by him, which he may insure to 
 their full value without regard to his liability to the owner of 
 the goods. So has a warehouseman, although he is liable only 
 for his own negligence to the owner. And the charterer of a 
 vessel who ha^ covenanted to pay its value in case of loss, or 
 to obtain insurance upon it against the usual risk, has an insur- 
 able interest in the vessel." 
 
 1 Lancaster Mills v. Merchants' Cot- 
 ton Press Co., 89 Tenn. 1. The su- 
 preme court of Georgia, in Zone v. 
 Hannah, 106 Ga. 61, held that "a 
 statement in a warehouse receipt, 
 'all cotton stored with us fully in- 
 sured,' does not constitute a contract 
 between the parties, requiring the 
 warehouseman to insure the cotton 
 of his customers, and rendering him 
 liable for the value of the same when 
 destroyed by fire." But in Thomp- 
 son V. Thompson, 73 Minn. 379, 81 N. 
 W. 204, it was held that the storage 
 receipt created an obligation by im- 
 plication to insure the property. In 
 that case the blank storage receipts 
 used were in the following language: 
 "La Grange Elevator, of Appleton, 
 Minn. 
 
 " Smith & Thompson, Proprietors. 
 
 '• bush. No. wheat 
 
 price cents. Received in store 
 
 , 189 — , account of , or 
 
 order, bushels No. wheat. 
 
 Which amount, kind and grade will 
 be delivered to the holder of this re. 
 ceipt upon surrender thereof, subject 
 to the following conditions as to stor- 
 
 1 
 
 age, etc. : The first fifteen days from 
 date thereof, or fractional part 
 thereof, one-half cent per bushel, but 
 shall not exceed four cents for six 
 months. This charge for storage 
 shall cover loss by fire only. All 
 other damages by the elements, or by 
 heating, or not, or by the act of God, 
 or which in any way have been 
 caused by the holder of this receipt, 
 shall be excepted. 
 " Smith & Thompson, Proprietors." 
 These forms were used in receipt- 
 ing for a large amount of wheat re- 
 ceived. The elevator and contents 
 were destroyed by fire. The action 
 was brought to recover the value of 
 the wheat. Held, that this storage 
 receipt by implication constituted a 
 contract of insurance by the ware- 
 houseman against loss by fire. 
 
 2 08 Mass. 420-423; 3 Kent's Com. . 
 376; Insurance Co. v. Chase, 5 Wall. 
 513; Wilson v. Jones, L, R. 3 Exch. 
 150, 151; Carnley v. Cohen, 3 B. & 
 Ad. 478; Waters v. Monarch Assur- 
 ance Co., 5 El. & Bl. 870; Oliver v. 
 Green, 3 Mass. 133; Bartlett v. Wal- 
 ter, 13 Mass. 267. 
 31 
 
§ ITy.] OEDINAKY BAILMENTS. [PAET I. 
 
 Ill W/iifc' V. Mndhon ^ the court of appeals of Kew York held 
 that a sheriff who had seized goods upon an. attachment had 
 such an interest in the goods as would warrant him in effect- 
 ing insurance of the property, and that a policy taken by him 
 through his deputy would be valid. The court say: "I think 
 the sheriff had an insurable interest in the goods, and that the 
 policy was valid. The sheriff, by the seizure on the attachment, 
 acquired a special property in the goods, which would have 
 enabled him to maintain an action and to recover their full 
 value against any one who should take them out of his custody. 
 Such special property gave him an insurable interest. It was 
 his duty to keep the property safely until sold or released, and 
 he was chargeable for its destruction by any cause against 
 which he could protect it by ordinary care, if he was not sub- 
 ject to a more stringent rule of responsibility. Although he 
 was under no obligations to insure, he could, if he chose, pro- 
 tect himself against this risk by insurance." 
 
 § 178. Usage and general course of business to a certain 
 extent defines the duty of warehouseman as bailee. — As we 
 have seen, in certain cases the bailee or warehouseman may 
 discharge his full duty by delivering to the owner, or bailor, 
 or to his assignee of the property, other property than the 
 identical property for which the receipt was given, if the prop- 
 erty delivered be of the same kind, grade and quality as the 
 subject of the bailment. Such a delivery, however, does not 
 in all cases discharge the warehouseman of his duty in the 
 premises. It is readily understood from the very nature of 
 the property and the usual course of dealing that a storage- 
 keeper could not discharge his liability as keeper of chattels, 
 such as furniture and manufactured articles placed in his cus- 
 tody for safe storage, by delivering to the bailor, or his as- 
 signee, property claimed to be other property than that which 
 was the subject of the bailment, claimed to be of the same 
 kind, C|uality, quantity and value, but that he would be re- 
 quired in such case to deliver the identical property which 
 was placed in his custody by the bailor. On the other hand, 
 wiiere grain, as, for example, wheat, is placed in the warehouse, 
 unless there is some special contract to the contrary, usage 
 
 1 26 N. y. 117-130. 
 133 
 
CH. XI.J- LOOATIO CUSTODIiE. [§ 178. 
 
 and the general course of business, which is well known to the 
 commercial world and among dealers, would permit that the 
 warehouseman might deliver to the bailor, or to his assignee, 
 to satisfy the receipt which was given, grain of the same grade, 
 quality, quantity and value. 
 
 Now, the question arises, under what circumstances and to 
 what extent is the one rule or the other to be followed in 
 discharging the duty incumbent upon the warehouseman. 
 The circuit court of the state of Rhode Island, in the case of 
 Fifth National BanJc, v. Providence Warehouse Co.^ discussed 
 this question to some extent. In that case a quantity of eggs 
 was received for storage by the defendant, and the following 
 receipt was given for them : 
 
 "Providence, September 28, 1888. 
 "Providence Warehouse Company: 
 
 " Received on storage of A. F. Alver- 
 son & Company, subject to the order 
 of the Fifth National Bank, 390 cases 
 eggs, to be delivered according to the 
 indorsement hereon, but only on the 
 surrender and cancellation of this re- 
 ceipt, and on payment of the charge 
 payable thereon. 
 \ " S. J. Foster, Mgr." 
 
 There were no distinguishing marks on the cases of eggs, 
 and none noted in the margin of the receipt: the eggs were 
 received and stored by the defendant. Upon this property the 
 owner, a produce dealer, borrowed of the plaintiff the sum of 
 $1,950 upon the warehouse receipt; the owner had other eggs 
 in the warehouse, some of which may have been stored with 
 these, but this particular lot was specially known to the man- 
 ager and servants of the warehouse from the fact that a por- 
 tion of the property became wet when the defendant was put- 
 ting it into the warehouse. The plaintiff, who had loaned the 
 money, brought this action to recover the value of the eggs. 
 The contention of the defendant in this case was, that having 
 kept other cases of eggs belonging to the owner subject to the 
 bailee's order, the bank, it had the right, in the absence of dis- 
 tinguishing marks, to deliver the eggs stored under this re- 
 
 1 17 R. I. 113, 9 L. R. A. 260. 
 183 
 
 No. 5175. 
 Marks. • 
 Stored in Section B. 
 
§ 1T8.] OEDINAET BAILMENTS. [PAET I. 
 
 ceipt, and that therefore it was not liable for such delivery 
 without the plaintiff's order, and to support this contention the 
 defendant cited several cases. The court in its opinion said: 
 "These are cases where grain was deposited according to 
 usage in common bulk, being necessarily indistinguishable, and 
 the several depositors were held to be tenants in common of 
 the common stock.^ 
 
 " Consequently, in the first case (cited by defendant) loss by 
 diminution or decay was to be borne ^ro rata; in the second, 
 where there was a commingling of grain of the warehouseman, 
 who was publicly selling and shipping from the common mass, 
 and apparent ownership and authority to sell was conferred 
 upon him, so that the depositor was estopped to assert title 
 against an innocent purchaser in the usual course of business; 
 in the third case, where the warehouseman sold in the same 
 manner, receiving enough to supply the depositor, the bailment 
 continued, and the warehouseman was not liable for loss from 
 an accidental fire without negligence. These cases are, there- 
 fore, quite different from the case at bar, and depend upon very 
 different considerations, aside from the different point involved. 
 It is obvious that grain in an elevator is practically incapable 
 of distinction and can hardly be stored without commingling; 
 but it is not so with merchandise packed in cases.^ The ware- 
 houseman can place them in separate lots or he can mark them 
 with the number of the receipt." The' court further say: "In 
 the case before us the eggs were delivered without an order 
 from the plaintiff with full knowledge that they were covered 
 with the receipt which stipulated that they were subject to 
 the bailee's order. 
 
 "It is urged in justification that these eggs were out of cold 
 storage, and other eggs were kept in cold storage to answer 
 the receipt. To this the plaintiff replies that the eggs covered 
 by this receipt were fall eggs, fresher than others and of 
 greater value. However this may have been, we think that it 
 is clear that the plaintiff, under this receipt, has the right of a 
 bailor, and is not bound to receive other property of this de- 
 scription in place of its own when the bailee has intentionally 
 
 1 Dole V. Olmstead, 36 111. 150, 41 National Exch. Bank v. Wilder, 34 
 111. 344; Preston v. Witherspoon, 109 Minn. 149. 
 Ind. 4oT; Rice v. Nixon, 97 Ind. 99; 2 Jones, Pledges, 308. 
 
 134 
 
OH. XI.] LOCATIO CUSTODI^. [§ 178. 
 
 delivered it to anotter. The transferee has the right to sup- 
 pose that the described property is held subject to his order. 
 How is he to know that the warehouseman has mingled it with 
 other like property so as to be indistinguishable from it, if such 
 were the case ? Naturally, the warehouseman is bound to some 
 degree of care and responsibility to enable him to deliver what 
 he receives. If it is enough that he deliver anything answer- 
 ing the same general description, a warehouse receipt is indeed 
 a precarious security. The delivery to Alverson to deposit the 
 eggs is no defense, since by its contract the defendant assumed 
 the obligation to deliver upon the order of the plaintiff, know- 
 ing from the course of business that the plaintiff had advanced 
 money upon the receipt." 
 
 In the case of Stewart v. Phoenix Ins. Co} receipts were given 
 for forty bales of cotton variously marked, deliverable only 
 upon the indorsement of the secretary of the bailee. The de- 
 positor failing in business, the warehouseman notified the sec- 
 retary of the company that the creditors of the bailor were 
 replevying cotton which he had in store, and requested the 
 secretary to take forty bales to secure the company or to de- 
 fend the replevying suit. Upon this the secretary of the com- 
 pany inquired of the warehouseman if the same identical bales 
 that were deposited with him were in his possession. To said 
 inquiry the bailee answered that they were not. Thereupon 
 the secretary of the company declined to accept the forty bales 
 of cotton offered, and afterwards brought suit to recover the 
 value of the cotton that was deposited. Oral testimony was 
 sought to be given upon the part of the warehouseman to prove 
 that t\x&ce was an understanding that the receipt could be satis- 
 fied by the delivery of other cotton. The court, however, ex- 
 cluded this testimony upon the ground that it would tend to 
 Tary and alter a written contract, and the plaintiff had judg- 
 ment. 
 
 The "Wisconsin court, in Hale v. Milwauhee Dock Go.^ held 
 " that a warehouse receipt was a contract binding the receiptor 
 
 1 9 Lea, 104. bearer of the receipt on return of the 
 
 2 29 Wis. 483. "The meaning of same and payment of storage; and 
 this (receipt) clearly shows that the the warehouseman, not less than the 
 same fifty-four barrels received in ship-owner or carrier, is bound to de- 
 store and described as mess-pork are liver the identical goods received in 
 deliverable or to be delivered to the fulfillment of his contract." 
 
 125 
 
§ 179.] OEDINAEY BAILMENTS. [PAET I. 
 
 to safely store and deliver the same goods to the holder of the 
 receipt, except ia those cases where there is some expressed 
 agreement or known usage of trade which shows that the par- 
 ties otherwise intended." 
 
 In Goodwin v. Saanlon^ the court held "that the defendants 
 being warehousemen, and having given their storage receipt 
 for a specific number of barrels of pork, could not set up the 
 want of segregation to avert their liability; that by their re- 
 ceipt they charged themselves and were estopped; that if a 
 w^arehouseman would protect himself from liability in such 
 cases, he could do so by describing the goods as part of a larger 
 lot and inseparable, or in bulk with the goods of others, which 
 would give notice to any transferee of the warehouse receipt 
 of the condition of the goods and enable him to use necessary 
 diligence in obtaining the title to specific property." Thus it 
 will be seen that the usage of trade and the general course of 
 business have been controlling factors in determining the ques- 
 tion involved; that where the property, like grain in an eleva- 
 tor, is from its nature practically incapable of distinction, and 
 where the storage is generally understood to result in com- 
 mingling of the same, the warehouse receipt can be satisfied 
 by the delivery of grain of the same grade, quality and quan- 
 tity as that stored; but no such rule as this could be said to 
 be applicable or required by usage or the usual course of 
 business where the property stored is of a kind that it may be 
 and usually is kept separate and by itself. As, for example, 
 where it is packed in cases, or where it is by its very nature 
 capable of being identified and known by its appearance and 
 description; like furniture, books, cloths, mechanical tools, and 
 the like. This distinction must necessarily be kept in view in 
 the discussion of the next subdivision of our subject. 
 
 § 175). At common law a warehouse receipt, in a teclinical 
 sense, is not negotiable. — The customs of trade and business 
 dealings have established for the warehouse receipt, when 
 ])roperly indorsed, a certain kind of negotiability which by the 
 courts has been termed " i^riast-negotiability," a negotiability 
 not known to the law merchant or of equal rank with negotia- 
 ble instruments, but rather a medium of securing a transfer of 
 
 1 6 Cal. 541. 
 136 
 
CH. XI.] LOCATIO CUSTODI^. [§ 179. 
 
 title to the property or pledging it as security. It is used by 
 way of security for borrowed money; is often transferred by 
 indorsement; is apparently sold in the market as though it were 
 a negotiable instrument; but it cannot be said that it is, in a 
 technical sense, negotiable. It does not stand for the amount 
 of money that it represents upon its face, but merelj^ stands 
 in place of the property it represents, and the delivery of it 
 has the same effect as th.e delivery of the property itself. The 
 delivery of the receipt does not transfer the contract so as to 
 enable the assignee or indorsee to maintain an action upon it 
 in his own name without the aid of a statute governing such 
 actions. It cannot be said that there is any privity of contract 
 between a warehouseman and the assignee of the warehouse 
 receipt; and so it follows that the assignee of the warehouse 
 receipt occupies no better position in relation to the warehouse- 
 man than did the bailor of the property, for it has been fre- 
 quently held that the assignor could convey no greater title to 
 the property than he himself possessed. It is therefore not, 
 in a technical sense, like a bill of exchange or a negotiable in- 
 strument, but is more in the nature of an assignment of the 
 rights and interests of the bailor in the property represented 
 by the warehouse receipt. 
 
 In, the case of Burton v. Curyea^ the court, among other 
 things, charged the jury as follows: " The warehouse receipts 
 are not negotiable in a legal sense so as to enable the person 
 holding them to transfer a greater right or title to the prop- 
 erty mentioned in them than he himself had. Their only office 
 is to stand in the place of the property itself, so far as the ques- 
 tions involved in this case are concerned, for the convenience 
 of the parties interested in the property. The delivery of the 
 receipt has the same effect as the delivery of the property; no 
 greater and no less." 
 
 It is urged that warehouse receipts should be treated as ne- 
 
 1 40 111. 320; Western Union R. Co. dent had authority to issue such re- 
 
 V. Wagner, 65 IIL 197. A iona fide ceipt. Corn Ex. Bank v. Am. Dock 
 
 holder for value of a warehouse re- & T. Co., 14 App. Div. 453, 43 N. Y. 
 
 ceipt, issued to himself by the presi- Supp. 1028. The indorsement and 
 
 dent for cotton, may recover the delivery of a warehouse receipt of 
 
 value of the cotton from the ware- goods stored transfers the ownership 
 
 house company, although no cotton of the property only, and not the 
 
 was in fact deposited, if the presi- contract itself. 
 
 127 
 
g 179.] OEDINAEY BAILMENTS. [PAET I. 
 
 gotiable paper, and that this is required by the exigencies of 
 commerce. Eeferring to this position, and the reasons urged 
 in its support, we can only say, if it be desirable that these in- 
 struments should be placed upon this footing, it belongs to the 
 legislature to make the rule. Such is certainly not now the 
 law as it has been expounded by the highest authorities both 
 of England and of this country. It is true that it is one of the 
 excellencies of the common law that its principles can be 
 adapted by the courts to new emergencies as they arise in the 
 rapid development of modern society ; but this flexibility of the 
 system in jadicial hands should be confined to the new appli- 
 cation of settled principles, or of principles in harmony with 
 those that are settled, and should not be extended to the making 
 of new rules that are merely in violation of maxims lying at 
 the foundation of our laws and as old as the law itself. 
 
 This question was thoroughly discussed in the case of Second 
 National Banli v. Walbridfje} That case was a peculiar one. 
 The warehouseman, on the application of the owner, by a mis- 
 take issued to him at different dates two warehouse receipts 
 for the same property. Afterward, the assignee of the first 
 receipt recovered the property in replevin from the plaintiff, 
 who held the second receipt. The plaintiff thereupon instituted 
 a suit to recover from the defendant, the warehouseman, the 
 value of the property. 
 
 The supreme court held that the assignee of the receipt occu- 
 pied no better position than the bailor of the goods would have 
 occupied had he brought the action. Counsel for the plaintiff 
 in the argument urged that the case at bar was identical in 
 principle with cases where a teller or other officer of a bank 
 certified checks to be good, and, thus certified, the checks had 
 been transferred to third parties, when in truth the drawer had 
 no funds in the bank; and also cited cases embracing the prin- 
 ciple involved, where a note is given which would be void in 
 the hands of the holder, but in the hands of a honafde indorsee 
 would be good; so that in this case the negotiability of the 
 warehouse receipt was squarely before the court. The court 
 say: "A warehouse receipt given by a warehouseman for prop- 
 erty placed in his possession for storage is not, in a technical 
 sense, like a bill of exchange, a negotiable instrument; but it 
 
 1 19 Ohio St. 419. 
 
 128 
 
OH. XI.J LOOATIO OUSTODI^. [§ 179, 
 
 merely stands in place of the property it represents; and the 
 delivery of the receipt has the same effect in transferring the 
 title to the property as the delivery of the property." And 
 further added: "Nor is there any force in the claim made in 
 the argument, that the receipt in this case was negotiable be- 
 cause, by its terms, the property was declared to be subject to 
 the order of the bailor, . . . and such was the fact in all 
 of the cases above cited. 
 
 " This case is clearly distinguishable from the cases urged 
 upon our attention, where negotiable paper, invalid between 
 the original parties, has been enforced in favor of a honafide 
 holder for value ; also, from the cases where the representation 
 of the defendant has been made directly to the plaintiff, with 
 the view of influencing his conduct. 
 
 " In the former class of cases, the negotiable character of the 
 paper affords the holder protection ; in the latter class, when 
 the other necessary elements are found, there exists good 
 ground for the application of the doctrine of estoppel." 
 
 It seems, therefore, that the law places warehouse receipts, 
 when indorsed or transferred as security for money loaned for 
 other obligations, upon precisely the same footing as loans made 
 upon pledge and delivery of the property itself. If the person 
 who pledges the property is the owner, then the security is 
 good to the extent of the value of the property in custody of 
 the warehouseman and shown by the receipt; but if he is not 
 the owner, if he is simply a bailee, or if the. warehouse re- 
 ceipt had been issued to him by mistake, or if the property 
 turns out to be a different kind of property than that repre- 
 sented in the receipt, and it could not have been known to have 
 been thus different by the warehouseman without opening up 
 the packages and examining each package, or if the property 
 should turn out to be stolen property, or if the bailor of the 
 property should not be the owner, but simply a bailee, and was 
 attempting to make a fraudulent use of the property intrusted 
 to his keeping, in such like cases it seems to be settled that 
 a person purchasing or receiving the property as security 
 will receive no better title than the indorser or warehouse- 
 man's bailor had. In other words, the property will be sub- 
 ordinated to the title of the true owner; and in the language 
 9 139 
 

 No. 1394. 
 
 
 
 Marked 
 
 
 <6 
 
 
 'd 
 
 o 
 
 <J> 
 
 ■3 
 
 6D 
 
 \/ 
 
 's 
 
 ^ 
 
 1,500 Bbls. 
 
 ft 
 
 § 179.] OEDINAET BAILMENTS. [PAET I. 
 
 of the court in Burton v. Curyea^ "these are risks which 
 men enefaffed in business must be content to encounter, and 
 against which the law can afford them no protection. The law 
 can punish roguery, but it cannot secure innocent persons 
 against losses from its multiform devices." 
 
 In the case of Dean v. Driggs,^ a warehouseman issued two 
 receipts substantially in the following language: 
 
 " M. S. Driggs & Company's "Warehouse. 
 " New York, March 28, 1885. 
 " Keceived from Max Von Angern, ex 
 Grinaldo, in store 278-80 South street, to 
 be held by us on storage, and to be deliv- 
 ered to his order on return of this receipt 
 and payment of storage and charges, fif- 
 teen hundred barrels Portland cement. 
 " Storage per month 4. 
 " T fi nor* 
 
 "M. S. Deiggs&Co." 
 
 The bailor of the property, having obtained the receipts, 
 took them to the plaintiifs and executed a note for $3,500, and 
 indorsed the warehouse receipts, and authorized the plaintiffs 
 to deliver the note and the guaranty of payment indorsed 
 upon it by the plaintiffs, at his request, together with the ware- 
 house receipts as collateral security, to a certain bank in New 
 York, and to receive the proceeds of the discount of such note. 
 The plaintiffs did so, and delivered the money to the bailor; 
 the note not being paid when due, the plaintiffs paid it. The 
 bailor having absconded, the plaintiffs went to the warehouse 
 of the defendants, and when the barrels which purported to be 
 filled with Portland cement were opened, it was discovered 
 that they did not contain Portland cement, but contained 
 a practically worthless material somewhat resembling clay or 
 mortar. 
 
 Upon this the plaintiffs commenced a suit against the de- 
 fendants, the warehousemen, claiming that they were liable 
 for the cement the barrels were represented to contain; and the 
 question then arose as to the obligation of the warehouseman 
 
 140 111. 320; Jones on Pledges, Bryans v. Nix,4 M. & W. 775; Broad- 
 seo, 281 ; Davis v. Bradley, 28 Vt. 118; well v. Howard, 77 111. 305. 
 
 2 137 N. Y. 274. 
 130 
 
CH. XI.j LOCATIO CUSTODIjK. [§ 179, 
 
 to examine packages that are left with him for safe keeping. 
 The court held " that the language of the receipt was merely 
 descriptive of the barrels which the defendant received ; that 
 it would not be practicable for a warehouseman to be com- 
 pelled to open and examine the contents of every package, 
 barrel or box of merchandise delivered to him where it is so 
 packed as to cover and conceal the real nature of the goods 
 delivered ; " and adding, " that in some instances, if such were 
 the law, it would be necessary for the warehouseman to have 
 expert examiners in order to ascertain the kind of goods con- 
 tained in such packages; " the court using this language: " It 
 is known and understood that the business of a warehouseman 
 is not that of an inspector of property delivered to him, nor is 
 he an inspector of the contents of packages. It is no part of 
 the duty of the defendant, as a warehouseman, to have prop- 
 erty inspected or its quality warranted, and no proceedings 
 are supposed to take place to enable the warehouseman to be- 
 come acquainted with the contents of packages, for the very 
 reason that in his business it is unimportant what such con- 
 tents are." 
 
 " The general object of giving a description of the property 
 in the receipt is for the purpose of identification only, so that 
 the identical property delivered to the warehouseman may be 
 delivered back by him upon the return of the warehouse re- 
 ceipt, and for such purpose it is sufficient to describe the prop- 
 erty as it by its external appearance seems to be. Such a 
 desci'iption is not calculated to mislead any one in regard to the 
 actual contents of the package." 
 
 The rule seems to be that a lonafide holder of the warehouse 
 receipt will be protected to this extent, as to all representations 
 of fact which are within the knowledge of the warehouseman 
 who gives the receipt, or which from the nature of the goods, 
 or in the ordinary course of business, ought to have been within 
 his knowledge; but further than this the law has not gone.'- 
 
 At most, therefore, it can only be said that a warehouse re- 
 ceipt is quaai-negot\&b\e ; not negotiable paper under the law 
 merchant. The contract is open to equities; the assignee stand- 
 ing in no better position than that of the bailor of the prop- 
 
 1 First Nat. Bank of Chicago v. Dean, 137 N. Y. 110. 
 131 
 
§ 179.] OEDINAET BAILMENTS. [PAET I. 
 
 erty.' The redelivery of the property stored would be a com- 
 plete compliance with the contract expressed in the receipt of 
 the warehouseman, except, perhaps, in a case where, because 
 of the negligence of the warehouseman, a receipt for valuable 
 property was given, where inferior and worthless commodities 
 were actually received and stored, and the receipt had for 
 value been received by assignment or indorsement by a lona 
 fide holder; and this not because the receipt is negotiable in 
 the sense of commercial paper, but because of the negligence 
 of the warehouseman in holding out to the hona fide holder 
 that the valuable goods are in store, and for this reason he is 
 estopped from denying the receipt given. 
 
 The delivery of the goods to be stored and the giving of the 
 receipt therefor, reciting that they are to be redelivered upon 
 presenting the receipt properly indorsed, or upon the order 
 of the owner or bailor, creates a bailment. The very essence 
 of the contract is that the same property shall be returned; 
 so any contract which does not provide for a return of the 
 same property "would not be a bailment contract, but one of 
 sale or exchange.^ The transfer of the receipt does not create 
 any new rights, and has no other operation or effect than as a 
 symbolical delivery of the property.' 
 
 1 Edwards on Bailments, 287; Will- ing of a common carrier, are con- 
 ard V. Bridge, 4 Barb. 361; Suydam tracts of precisely the same general 
 V. Smith, 7 Hill, 182; Thompson v. nature and effect, and should obvi- 
 Dominy, 14 M. & W. 403: Blanchard ously be governed by the same rules 
 V. Page, 8 Gray, 281 ; Bank of Roches- and principles, as to the application 
 ter V. Colt, 15 Barb. 506. of the doctrine of estoppel or nego 
 
 2 Norton v. "Woodruff, 2 N. Y. 153. tiability, -n'hich, "with respect to such 
 ' Hale and others v. Milwaukee contracts, mean one and the same 
 
 Dock Company, 29 "Wis. 482, was a thing. They are or may be said to 
 
 case where the owner pretended to be negotiable or conclusive, in the 
 
 deliver for storage barrels of mess hands of a bona fide assignee or 
 
 pork, and obtained a receipt from the holder for value, so far as the party 
 
 warehouse company for barrels of executing them, warehouseman or 
 
 mess pork, when in reality the bar- carrier, has made, or is bound by, the 
 
 rels contained only salt. The re- representations contained in them, 
 
 ceipt in due course of business gave They are negotiable or conclusive 
 
 to the plaintiff a security for a loan, and valid in the hands of such a 
 
 The defendant refused to deliver holder, because the signer, or party 
 
 barrels of mess pork and an action by whom they are executed, is es- 
 
 was brought. The court says: " The topped, or not permitted to deny the 
 
 receipt of a warehouseman or wharf- existence of the facts represented in 
 
 inger, and the receipt or bill of lad- or by them, and which are presumed 
 
 133 
 
OH. xr.J 
 
 LOOATIO CUSTODI^. 
 
 [§§ 180, 181. 
 
 § 180. Warehouseman not permitted to impeach his re- 
 ceipt. — While, as we have seen, the warehouseman will be 
 permitted to show in certain cases that the property received 
 was not of the kind represented and receipted for, in cases 
 where it can be said that the custodian, the warehouseman, 
 knew or ought to have known what kind of property he did 
 receive for storage, he will not be heard to impeach his receipt. 
 And so it has been held that " a warehouseman who receives 
 wheat for storage, giving receipts therefor, designating and 
 guaranteeing the grade and quantity of the wheat, becomes 
 liable for damages to a transferee of such receipt by refusing to 
 deliver the wheat called for, and delivering wheat of an infe- 
 rior quality." ^ 
 
 § 181. Negotiability of receipt provided by statute. — In 
 most of the states the receipt, so far as possible, is made nego- 
 tiable by statute; these statutes providing that the receipt 
 may be transferred by indorsement and delivery, and that the 
 
 to have been within his knowledge 
 at the time of their execution. Ne- 
 gotiability, or guasi-negotiability as 
 it has sometimes been more properly 
 called, and estoppel, when spoken 
 of with respect to such instruments, 
 mean, therefore, one and the same 
 thing. In Eowley v. Bigelow, 13 
 Pick. 307, 314, and Stanton v. Eager, 
 16 id. 467, 474, carriers' receipts or 
 bills of lading are spoken of as quasi- 
 negotiable, which is the more accu- 
 rate form of expression. A bill of 
 lading or carrier's receipt for goods 
 to be transported, and the receipt of 
 a warehouseman or wharfinger for 
 goods in store or to be forvrarded, 
 are both contracts of bailment. Both 
 the carrier and the warehouseman 
 are bailees for hire, the former agree- 
 ing to carry and deliver the identical 
 goods or property received at the 
 place designated or agreed upon, and 
 the latter to forward or redeliver or 
 return the very same goods or prop- 
 erty on presentation of the receipt, 
 unless there be some express agree- 
 ment, or known usage, or custom 
 of trade or business, showing that 
 
 the parties otherwise intended. It is 
 of the very essence of both agree- 
 ments that the very same property 
 received shall be carried, delivered 
 or returned to the party who may be 
 entitled thereto, in discharge of the 
 obligation of the bailees. The deliv- 
 ery or return of the same property, 
 and of no other, will discharge such 
 obligation or duty and satisfy the 
 terms of the contract. Even in case 
 of fraud, or wilful untruth, or mis- 
 representation on the part of the 
 bailee, or, in a case like the present, 
 where he is himself deceived or mis- 
 led, without fault on his part, by the 
 fraudulent concealment or devices 
 of the bailor, no other or correspond- 
 ing property or goods can be tendered 
 in performance of the contract. In 
 the former case, the bailee (and in 
 the latter also, if liable) must re- 
 spond in damages for the value of 
 the property represented by the re- 
 ceipt, unless the party entitled to the 
 same elects to receive other property 
 instead." 
 
 1 Lawson v. Genessee Farmer, etc. 
 Co., 43 Pac. 191. 
 
 138 
 
§ ISl.J OEDINAET BAILMENTS. [PAET I. 
 
 indorsement maybe either in blank or to the order of another, 
 and shall be deemed a warranty that the indorser has good 
 title and lawful authority to sell the property named in such 
 receipt, and generally providing that the transferee of the prop- 
 erty, by negotiating the receipt, shall be subject to the lien 
 of the warehouseman for charges and advances. 
 
 These statutes, as a general rule, have provisions with refer- 
 ence to the issuing of receipts by the warehouseman as security 
 for money loaned, and usually provide that the warehouseman 
 shall not issue receipts or vouchers for personal property to any 
 person or corporation as security for money loaned or for other 
 indebtedness, unless such property so receipted for shall be at 
 the time of issuing such receipt or voucher the property of the 
 warehouseman without incumbrance, and actually in store and 
 under his control at the time. The negotiability of the receipt, 
 the manner of issuing it, and the rights and privileges of the 
 warehouseman and the holder of the receipt, depend very 
 largely upon the statutes of the several states. It will there- 
 fore be necessary, in order to determine full}^ the rights, priv- 
 ileges and liabilities of the warehouseman in the different states 
 in this regard, to consult the several statutes.^ 
 
 1 Michigan Com. Laws, 78, sec. 5037- erty, give to such person his ware- 
 39, provide that " warehouse receipts houseman's non-negotiable receipt; 
 shall be negotiable and may be trans- such receipt to have plainly printed, 
 ferred by indorsement and delivery written or stamped upon it ' non-ne- 
 either in blank or to the order of an- gotiable,' and that the assignment of 
 other, except where the words ' non- such non-negotiable receipt, to be 
 negotiable ' are plainly written, effectual, must be recorded on the 
 printed or stamped on the fg,ce books of the warehouseman who is- 
 thereof." sues it." See Amendment, Supple- 
 Massachusetts Public Statutes, 419, ment 1883-88. 433. 
 provide "that the warehouseman Illinois Revised Statutes, 98, 1370, 
 shall give receipt for the property sec. 156, provide "that the receipt 
 negotiable in form, and that the title shall be transferable by indorse- 
 to the property stored shall pass to ment, and that such indorsement 
 the purchaser or pledgee by the in- shall be deemed a valid transfer of 
 dorsement and delivery to him of the the property." 
 
 warehouse receipt therefor.signed by Indiana Ann. Stats. 1894, sec. 8722, 
 
 the person to whom such receipt was provide " that all receipts issued by 
 
 originally given, or by the indorsee any warehouseman, as provided in 
 
 of the receipt; provided that every thisact, shall be negotiableandtrans- 
 
 suoh warehouseman shall, upon re- ferable by indorsement in blank, or 
 
 quest of any person depositing prop- by special indorsement and with 
 
 134 
 
CH. XI. J LOCATIO OUSTODIJS. [§ 182. 
 
 It may be said, however, that even under the several stat- 
 utes, negotiability of the receipt cannot be extended beyond 
 the express term or provision of the statute; that is to say, 
 these statutes making warehouse receipts negotiable are such 
 an innovation upon the law governing the negotiability of 
 commercial paper, that the courts would give to the statutes a 
 strict construction, and their negotiability would be confined 
 to the strict provisions of the statute. 
 
 § 182. Common carriers, when warehousemen. — It is often 
 a very important question to determine whether the carrier's 
 relation is that of a common carrier or a warehouseman. If 
 the relation is that of a common carrier, then his liability may be 
 that of an insurer; but if it is that of a warehouseman, then he 
 is only liable for ordinary negligence and is held to ordinary 
 diligence. 
 
 The test which determines whether the carrier's relation is 
 that of a warehouseman or a common carrier seems to be 
 whether the goods have been delivered by the shipper for the 
 purpose of immediate transportation without further orders or 
 not.' If the delivery of the goods is not for immediate ship- 
 ment, but by order of the owner, and they are to be detained 
 for some purpose and the shipment to be some time in the 
 future, in such case the relation of the carrier is that of a ware- 
 houseman. The general rule is that, if something remains to 
 be done after the goods have been delivered by order of the 
 shipper, the liability of the carrier is that of warehouseman 
 merely.^ If the shipment is delayed, however, through the 
 
 like liability as bills of exchange ten, printed or stamped upon the re- 
 new are and with like remedy ceipt. 
 
 thereof." There are other provisions California, Connecticut, Iowa, Kan- 
 requiring that receipts shall only sas, Kentucky, Maine, Maryland, 
 be given for property stored, and Nevr York, Wisconsin and other 
 forbidding fraudulent receipts; also states have enactments upon this 
 providing that the warehouseman subject. 
 
 shall not sell, incumber, ship, trans- i Fitchburg R Co. v. Hanna, 6 
 
 feror move beyond his immediate Gray (Mass.), 539; Goodbar v. Wabash 
 
 control any property for which a R. Co., 53 Mo. App. 434; Pittsburg R. 
 
 receipt shall be given without the Co. v. Barrett, 36 Ohio St. 448; Clark 
 
 consent of the holder of the receipt, v. Needles, 25 Pa. St. 338. 
 
 Tennessee Code, 1896, sec. 3605, en- 2 St. Louis E. Co. v. Knight, 123 
 
 acts that the warehouse receipt shall U. S. 79 : Bannon v. Eldridge, 100 Mass. 
 
 be negotiable, except in cases where 457; Watts v. Boston R Co., 106 Mass. 
 
 the words "non-negotiable "are writ- 467. Goods left in the company's 
 
 135 
 
§ 183.] OEDINAEY BAILMENTS. [PAET I. 
 
 carrier's acts and not by the request or action of the shipper, 
 in such case the relation of common carrier is not changed to 
 that of a warehouseman, nor is the liability changed. When 
 the property is delivered to the common carrier it is presumed 
 to be for immediate shipment; the law presumes this, and it is 
 the duty of the carrier to at once ship the property; and if he 
 delays the shipment, he cannot by such delay change his lia- 
 bility. 
 
 In Gregory v. Bailway Co} it was held that a delivery to a car- 
 rier implies a direction for immediate shipment; and the fact 
 that the shipper consents that the goods may lie in the depot 
 until the carrier can secure a car does not relieve the carrier 
 from liability as an insurer. 
 
 § 183. As to goods awaiting delivery. — As to when the re- 
 lation of warehouseman takes the place of that of a common 
 carrier as to goods that have been transported to their desti- 
 nation and are in the vehicles or warehouses of the carrier 
 awaiting delivery to the consignee, the authorities are not en- 
 tirely harmonious. There is a class of cases which holds that 
 when the carrier has transported the goods in compliance with 
 his contract of affreightment and has them in his cars ready to 
 be unloaded, if the goods are such as the consignee usually 
 takes from the cars, or in the freight houses, if of the kind of 
 
 warehouse for future transportation R. Co., SI Ont. App. 404, 55 Am. & 
 
 through an arrangement with the Eng. R. Cas. 579; 111. Cent. R. Co. v. 
 
 baggage-master are in the com- Ash mead, 58 111. 487; 111. Cent. R. Co. 
 
 pany's charge as a, warehouseman v. McCIellan. 54 III. 58; 111. Cent. R 
 
 only, regardless of what the baggage- Co. v. Hornberger, 77 111. 457. 
 master may have agreed, since he had 146 Mo. App. 474; Gulf, etc. R. Co. 
 
 no authority to bind tlie company, v. Trawick, 80 Tex. 370. " Where a 
 
 Mulligan v. Northern Pacific R. Co., railroad company erects a platform 
 
 4 Dak. 315, 29 N. W. 659, 27 Am. for the purpose of shipping cotton, 
 
 & Eng. R. Cas. 33. Where a ship- and its course of business is such 
 
 per stores goods from time to time that it induces parties to store cot- 
 
 in a railway warehouse, loading a ton on it under a promise to ship 
 
 car when a carload is ready, the re- such cotton by the next freight train, 
 
 sponsibility of the railway company but instead of doing so allows the 
 
 in respect to such of the goods as train to pass without taking on the 
 
 have been specifically set apart for cotton, it is responsible as a common 
 
 shipment is not that of a carrier but carrier for the cotton, and is liable 
 
 of a warehouseman; and in case of foritssubsequent loss by fire." Meyer 
 
 their accidental destruction by fire, v. Vicksburg, etc. R Co., 41 La. Ann. 
 
 the shipper has no remedy against 639. 
 the company. Milloy v. Grand Trunk 
 
 136 
 
OH. XI.J LOOATIO OUSTODI^. [§ 184. 
 
 goods that are usually unloaded and put into the freight house 
 iby the carrier, the carrier has done his whole duty, and it is 
 the duty of the consignee to call for and take the goods away 
 without notice from the company ; and, that during the time 
 the goods are held at their destination awaiting delivery to 
 the consignee, the carrier's liability as such does not attach, 
 but is limited to that of a warehouseman, and is only liable as 
 such. That is to say, he is no longer an insurer, but a custodian 
 of the property, a locatio oustodiw bailee, liable for ordinary 
 ^negligence and bound to exercise ordinary diligence. And so, 
 if the goods while so held are destroyed, or injured, or lost, 
 without the negligence of the carrier in whose possession they 
 are, he is not liable. 
 
 This rule has been called and is known as the Massachusetts 
 rule, and is followed by the courts in several other states.^ 
 
 §184:. The New Hampshire rule. — Another line of 
 
 cases holds to what has been called the New Hampshire rule, 
 which is quite like the Massachusetts rule except that it holds 
 the carrier to the full carrier's liability for a reasonable time 
 after the arrival of the goods which is given to the consignee 
 to call for them, inspect them, and take them away. 
 
 1 Blaisdell v. Railway Co., 145 Mass. Co., 112 Mass. 455; Barron v. Eldridge, 
 
 133. In Bassett v. Railway Co., 145 100 Mass. 455; Rice v. Railway Co., 
 
 Mass. 129, the court say: " The plaint- 98 Mass. 312. The leading case upon 
 
 ifE had employed the defendant as a this doctrine is an earlier Massachu- 
 
 <;ommon carrier to transport his setts cise, Thomas v. Railway Co., lOf 
 
 goods to Chicopee. He voluntarily Mete. 476, where the court discusses 
 
 fintered into an arrangement which in detail the rule and the theory, 
 
 involved the subject of the defend- Some of the states have followed the 
 
 anfs liability for loss of the property Massachusetts rule: 
 
 or injury to it from any cause, and Illinois.— Gregg v. Railway Co., 
 
 which determined his right as defi- 147 111. 550; Porter v. Railway Co., 20 
 
 nitely, under the contract implied IlL 107; Railway Co. v. Jenkins, 103 
 
 by law, as if the parties had written III. 599; Railway Co. v. Friend, 64 111. 
 
 ■out and signed stipulations in detail. 303; Railway Co. v. Scott, 43 111. 133. 
 
 The defendant was bound to carry Indiana.-— Cincinnati, etc. R. Co. 
 
 the goods and was an insurer of them v. McCool, 36 Ind. 140. 
 
 until the transit ended, and was then Iowa.— Mohr v. Railway Co., 40 
 
 liable, as a warehouseman, for any Iowa, 579. 
 
 want of ordinary care during such This rule is also followed in Geor- 
 
 reasonable time as they should re- gia, Missouri, North Carolina, Penn- 
 
 main in its custody awaiting the call sylvania and Tennessee. See cases 
 
 ■of the assignea This was the extent cited in note, post, § 581, 
 of its liability." Lane v. Railway 
 
 137 
 
§ 18 5. J ORDINARY BAILMENTS. [pART I, 
 
 The rule does not require that notice be giv^en to the con- 
 signee of the arrival, but seems to presume that he knows 
 when the freight was shipped and when, in due course of trans- 
 portation, it ought to arrive, and then allows for the consignee 
 reasonable time after its actual arrival to take it from the car- 
 rier's custody; if it is left beyond that reasonable time, the 
 carrier, as to the goods, becomes a warehouseman and only 
 liable as such.' 
 
 § 185. The third class of cases.— A third class of 
 
 cases holds to still a different rule, and, as it seems to us, the 
 best reasoned rule and having the weight of authority. These 
 cases hold the correct rule to be that, upon the arrival of the 
 goods at their destination, it is the duty of the carrier to give 
 to the consignee reasonable notice that the goods have arrived 
 and to call at the company's warehouse and receive them and- 
 pay the freight, and until such notice has been given and a 
 reasonable time has expired after the giving of such notice to 
 receive the goods, the carrier will be held to the extraordinary 
 liability of a carrier, and not until after the time of such rea- 
 sonable notice has expired will his liability^be limited to that 
 of a warehouseman. This has sometimes been called the New 
 York rule. There is no reason wh}'^ it should be so called, 
 as this state did not lead in the establishment of the doctrine, 
 although it has steadily held to it with other states. This is 
 also the rule in England.^ 
 
 This question will be further discussed in our consideration 
 of the duties and liabilities of common carriers, to which it 
 perhaps more properly belongs; our object here being simply 
 to point out the creation of the locatio oustodice bailments as. 
 related to warehousemen. 
 
 1 McDowell V. Railway Co., 34 N. Y. Minnesota: Kirk v. Railway Co.r 
 
 947. See also Angell on Garners, 39 Minn. 161. Following this are 
 
 sec. 313, and a long list of cases col- also Nebraska, Ohio and Texas, 
 
 leoted and cited from New York and 2 Perhaps the first case that took 
 
 otiier states, 5 Am. & Eng. Enoyl. of issue with the Massachusetts rule 
 
 Law (3d ed.), 266. was the case of Moses v. Railway 
 
 Michigan: McMillan v. Railway Co., 33 N. H. 533. The following 
 Co., 16 Mich. 79, 93 Am. Dec. 308; states may be said to have adopted 
 Buckley V. Railway Co., 18 Mich. 121; this rule: Alabama, Vermont, Wis- 
 Feige v. Railway Co., 62 Mich. 1; consin, Kentucky, New Jersey, Lou- 
 Black V. Ashley, 80 Mich. 90. isiana and Kansas. 
 
 138 
 
OH. XI.] LOCATIO CtrSTODIiE. [§§ 186-188. 
 
 § 186. "Wharfingers. — A wharfinger is one who maintains a 
 wharf for the receiving of goods for hire; his duties and liar 
 bilities are not unlike that of a warehouseman. Like the ware- 
 houseman he is liable for all losses which happen through his 
 neglect to exercise ordinary diligence.^ 
 
 § 187. When liability begins. — The wharfinger cannot be 
 charged with any responsibility until the goods are delivered 
 into his possession and he has the control of them. It therefore 
 follows that in order to hold the wharfinger for loss or injury 
 to the property it must appear that he had control of it. And 
 in jBlinn v. Mayo the court held : " That a mere delivery of 
 the goods at the wharf is not necessarily a delivery to the 
 owners as wharfingers. The usages of business in the vicinity 
 are of importance to show when a wharfinger acquires and 
 when he ceases to have the custody of the goods in that capac- 
 ity as in the case of common carriers."^ 
 
 In some localities the usage of business requires that the 
 wharfinger should be notified when the goods are delivered to 
 him or upon his wharf, and it may be said that it is generally 
 held by the courts that the wharfinger's liability does not begin 
 until the goods are so delivered and he has notice of such de- 
 livery.' 
 
 § 188, When the liability ends. — The wharfinger often 
 stands between the shipper and the common carrier, or between 
 two connecting carriers. The property is delivered upon his 
 wharf for the purpose of shipment by boat, or to be delivered 
 to some connecting carrier; and hence it often becomes very 
 
 1 Cox V. O'Reilly, 4 Ind. 368. "Wharf- 2 Blinn v. Mayo, 10 Vt. 56. 
 ingers are not like common carriers ' Packer v. Getman, 6 Cowen (N. Y.), 
 answerable for all goods that may be 757, was an action of trover to re- 
 intrusted to them in their line of cover the value of a box of dry goods 
 business, except such as may be lost alleged to have been delivered to the 
 by the act of God or the public enemy, defendant as master of a canal boat, 
 They are responsible for loss only to be transported from Albany to 
 which happens through a neglect to Charlestown. The court say: "Ad- 
 exercisereasonableand ordinary care mitting that, according to the usual 
 and diligence. They are in the same custom and understanding of parties, 
 category in this particular with ware- a delivery on the dock near a boat is 
 housemen." Schmidt v. Blood, 9 a good delivery so as to charge the 
 Wend. (N. Y.) 368, 24 Am. Deo. 143; carrier, it must always be accompa- 
 Blinn v. Mayo, 10 Vt. 56, 33 Am. Dec. nied with express notice, otherwise 
 175. he is not answerable." 
 
 139 
 
§ 189.J OEDINAET BAILMENTS. [PAET I. 
 
 important to determine not only when his liability begins 
 but when it ends. Property, too, is often delivered upon the 
 wharf of the wharfinger to be by him delivered to the ware- 
 houseman. The general rule is that the liability of the wharf- 
 inger ends when he ceases to have control of the property; 
 when he has delivered it either to the shipper, the warehouse- 
 man, the railroad company or to the consignee.' 
 
 It is true that usage and the general course of business has 
 much to do with determining what is actually necessarj'' in de- 
 livering the property. As, for example, a long-continued course 
 of business or usage in accepting property that is delivered 
 upon the wharf in a certain place, or placed in the charge of 
 certain individuals, or servants of the wharfingers, or the de- 
 livery of goods in accordance with a long-continued usage, as 
 the delivery of property to the officers of the ship, may have 
 very much to do with determining whether or not there has 
 been a proper delivery. And so in the case cited {Cohhan v. 
 Downe) Lord Ellenborough said: "The defendant has proved 
 that by established usage the goods are delivered by the wharf- 
 inger to the mate and crew of the vessel which is to carry 
 them; from which time it has been considered that their re- 
 sponsibility is then at an end." 
 
 § 189. Factors or commission merchants.^ Factors or 
 commission merchants belong to this class of bailees. They 
 have custody of the property they are authorized to sell; 
 they are employed as agents of the owners to sell goods or 
 merchandise consigned or delivered to them by or for their 
 principals, and for a compensation called factorage or commis- 
 sion. 
 
 "While the goods or property remains in their hands, they 
 have the custody or control of it, and from the time they re- 
 ceive and take possession of the property they are liable as 
 custody bailees; and they are held to the same degree of dili- 
 gence, to wit, ordinary diligence, and are liable for ordinary 
 
 iln Cobban v. Downe, 5 Esp. 41, accredited on board the ship; it can- 
 Lord Ellenborough says: " Undoubt- not be delivered to the crew at ran- 
 edly where the responsibility of the dom; but the mate is such a reoog- 
 ship begins, that of the wharfinger nized officer on board the ship that 
 ends: and a delivery to the ship delivery to him would be a good de- 
 creates a liability there; but the de- livery." 
 livery must be to an officer or person 
 
 140 
 
OH, 
 
 XI.J LOOATIO OUSTODIJS. [§ 190. 
 
 negligence. Their liability, however, will be more particu- 
 larly discussed when we reach that subject. 
 
 The factor, or commission merchant, must exercise good 
 faith in caring for the property and in performance of his duty 
 to his bailor. He can sell the property, but has no authority 
 to pawn, pledge or mortgage it, and like other bailees of this 
 class he must act according to the general usage of trade. In 
 holding himself out as a factor or commission merchant to the 
 public, he guarantees that he possesses the skill, judgment and 
 ability that is possessed by the ordinary factors and commis- 
 sion merchants in his vicinity. It therefore follows that he 
 must be held to exercise that skill, judgment and knowledge 
 that is possessed by the ordinary bailee; it is not enough that 
 he has exercised good faith.^ 
 
 The factor cannot substitute for the goods consigned, to him 
 other goods of the same kind. If this were allowed it would 
 give to the factor the right of converting the property of the 
 consignor to his own use, and instead of being a bailee of the 
 property he could assume the character of debtor to the owner 
 of the property without his consent.^ His duty is to receive 
 the goods from the consignor and follow implicitly the direc- 
 tions and instructions given him with reference to them; or if 
 there are no such explicit instructions or directions, then he 
 must take due care of the property while in his possession and 
 dispose of it, following the general usages of the trade. 
 
 § 190. Storage-house keepers. — Storage-houses, so called, 
 are store-rooms kept by persons or companies for the storage 
 of goods, wares and merchandise, and caring for the same for 
 hire, to be redelivered in the same condition as when received. 
 This term only applies where the safe custody and return of 
 the goods are the principal objects of the deposit, and not 
 where it is merely incidental, and the keeping is as well for the 
 purpose of consumption or for speculation. 
 
 These storage-houses are carried on by private owners, and 
 often by large storage companies, whose business is principally 
 the caring for furniture, household goods, and other articles 
 and chattels which are expected to be returned to the owner 
 upon demand and payment of charges. 
 
 1 Story on Bailments, sec. 395; ^Seymour v, Wyckoff, 10 N. Y. 
 Weaver v. Foyer, 70 111. 567; Dunbar 213. 
 V. Gregg, 44 111. App. 537. 
 
 141 
 
§§ 191, 192.] ORDINAEY BAILMENTS. [PAET I. 
 
 In connection with the business, and as incident to it, the 
 storage companies, or storage-house man, generally carries on 
 the business of moving the goods to and from the place of 
 storage, and for that purpose runs moving-vans, trucks and 
 drays, employing his own force of men for handling the prop- 
 erty. 
 
 This business in most respects is similar to that of the ware- 
 houseman, but has grown to such proportions that mention of 
 it as a business by itself seems proper.^ 
 
 § 191. Some of the duties of the bailor. — The bailor, or 
 owner of the goods to be stored, may be said to be under ob- 
 ligation to exercise good faith toward the bailee, the storage- 
 keeper, in respect to this bailment. Among other things, he 
 would be bound to give to the bailee full knowledge of the 
 kind of goods put into his store-house in order to bind the 
 keeper to the ordinary liability that attaches. If the goods or 
 property were very valuable, as jewels or diamonds, and were 
 secreted or hidden away among the other goods, and the 
 knowledge of them kept from the bailee, the bailor could not 
 hold the custodian to the same degree of liability, if the goods 
 were lost or destroyed, that he might if the attention of the 
 bailee had been called to these valuable articles. 
 
 §192. Dangerous articles. — It is the duty of the 
 
 bailor not to deliver to the bailee for storage any dangerous 
 thing, or that which might result in danger or injury to the 
 property, person or business of the storage-house keeper, or to 
 the property of others whose effects are being stored, without 
 
 ' Jones V. Morgan, 90 N. Y. 4. " De- ally as paid for storage. Most of 
 fendant owned a building in the the property was stolen by those in 
 city of New York, used and occupied charge of the building. In an ac- 
 as a storehouse. Under an agree- tion to recover damages the court 
 ment with plaintiff, who desired to charged, in substance, that the con- 
 store for safe-keeping certain house- tract was one of bailment; that de- 
 hold furniture, a space was allotted fendant, if liable at all, was liable as 
 to her in said building, and defend- a warehouseman, and bound to ex- 
 ant assured her that her goods would ercise ordinary care and prudence, 
 be safe, and would be guarded day Held, no error. It seems immaterial 
 and night. The allotted space was whether the contract was one of 
 inclosed by wooden partitions with bailment or of hiring the allotted 
 a door, upon which were two looks, room, as in either case defendant 
 the key of one of which was kept by was bound to exercise ordinary care 
 plaintiff. When money was paid by and prudence in guarding the goods.'' 
 plaintiff it was receipted for, gener- 
 
 143 
 
<!H. XI.] LOCATIO CUSTODIiE. [§§ 193-195. 
 
 first giving to the keeper full knowledge of the character of 
 the property, and notice of the danger in handling or keeping 
 it; and if the bailee should suffer any injury because of the 
 failure of the bailor to thus do his duty, the bailor would be 
 liable. As, for example, if the property was very explosive, or 
 if explosives were among the goods and chattels, or if the 
 goods were infected with contagious diseases, it would be the 
 duty of the bailor to fully apprise the bailee of the facts. 
 
 § 193. When the liability of the storage-house keeper be- 
 gins. — Following the rule already laid down, it may be said 
 that this liability commences at once upon his obtaining con- 
 trol of the property, and very much would depend upon the 
 usage and manner of doing the business. If the propertj'^ was 
 taken possession of at the house or premises of the owner and 
 loaded upon the truck or moving van of the storage-house 
 keeper, the liability would commence at that time; for the 
 Control and possession of the property would be then in the 
 storage-house keeper.^ 
 
 § 194. When the liability ends. — It is the duty of the 
 storage-house keeper to deliver the goods to the bailor, or to 
 his order upon demand, and payment of charges and the lia- 
 bility does not end until the goods are so delivered. 
 
 § 195. Storage-house keeper and warehouseman the same. 
 The warehouseman includes the storage-house keeper, the lat- 
 ter carrying on a species of the business of the warehouseman, 
 and by making separate mention of it here we do not intend 
 to infer that a distinction exists, to be pointed out, but that 
 this particular .branch may receive special notice. In the 
 
 i"It is held that the liability of the injury the goods were destroyed 
 
 the warehouseman commences as without his fault, and that they 
 
 soon as the goods arrive and the must have been so destroyed even if 
 
 crane of the warehouseman is ap- no damage had previously occurred, 
 
 plied to raise them into the ware- Powers v. Mitchell, 3 Hill, 545. So, 
 
 house. Thomas v. Day, 4 Esp. 263; if through the negligence of the serv- 
 
 Merritt v. Old Colony, etc. R. Co., ant of the warehouseman, the goods 
 
 11 Allen, 80, 83. See Shepherd v. are not delivered to the consignee 
 
 Bristol, etc. R. Co., L. R. 8 Exch. when called forby him, and th.ey are 
 
 189; Smith v. Nashua, etc. R. Co., destroyed by an accidental fire, the 
 
 7 Fost (N. H.) 91. And he is liable warehouseman will be held responsi- 
 
 for negligent injury to the goods ble for their loss. Stevens v. Boston 
 
 while in his possession, although it & Maine R Co., 1 Gray, 377." 
 appears that after the happening of 
 
 143 
 
§§ 196-198.] OEDINAEY BAILMENTS. [PAET I^ 
 
 further discussion of the subject we need not separate the two, 
 but will discuss both under the head of warehousemen. 
 
 § 196. Safe-deposit and trust companies. — Avery exten- 
 sive and important business has grown up, in these later years 
 more generally, among banking and trust companies, of setting 
 aside a place in their vaults, built and arranged for the use of 
 their customers, for a stipulated hire, in which the customers 
 may have control of a drawer or box in which they may de- 
 posit their papers, deeds or money as they desire, the customer 
 having the key to his individual box or drawer, and privileges- 
 of the room to examine his papers and valuables; and in order 
 to carry on the business necessarily incident to the special de- 
 posits, the vaults are in the charge and custody of the pro- 
 prietors, their servants or agents. 
 
 § 197. Tliese deposits not gratuitous; differ from a mere 
 depositum. — The deposit of valuables in suchlike places, it 
 would seem, is generally, at least, a bailment for hire, and 
 without question, where there is a fixed recompense, either by 
 way of rental for the drawer used by the depositor or the use 
 of the box, by an annual or quarterly amount to be paid or 
 otherwise, it is a hiring of custody, and there is no very great 
 difficulty in arriving at the degree of diligence that is required 
 of the custodian, or bailee, in such cases; and where the de- 
 posit is one that is furnished by banks to their customers with- 
 out any direct charge to the customer for the services rendered 
 by way of taking care of the special deposit, it would no doubt 
 be held to be a benefit bailment and not gratuitous, the service 
 being performed because the depositor is a customer of the 
 bank, and by reason of which he is contributing a benefit tO' 
 the bank. If the depositor was not a customer and no charges 
 were made for receiving and caring for the special deposit, 
 it would be, of course, a mere gratuitous bailment; the dili- 
 gence required will, as we have seen, depend upon the kind of 
 bailment created. 
 
 § 198. — — Tlie nature of the bailment and the diligence 
 required. — A gratuitous bailment, it will be remembered, could 
 not be created by making a special deposit with the bank or the- 
 safe-deposit company, if it were not received, held and cared 
 for by the depositary for the sole benefit of the bailor; for, if 
 the least benefit, either directly or indirectly, is realized by the 
 
 144 
 
CH. XI.l LOCATIO CUSTODI^. [§ 198. 
 
 bmk or deposit company, it would be a benefit bailment and 
 the depositary would be bound to exercise the ordinary care 
 required of a benefi-t bailee and subject to the same liability ; 
 and so it would be difficult to conceive of a case, as business is 
 ordinarily carried on, where a gratuitous bailment would be 
 created if the deposit were made by a customer in the course 
 of his business with the concern; for it would be held that there 
 was at least that benefit arising from the business of the bailor 
 that would be of some benefit to the bailee. 
 
 But even if the deposit were received from a depositor not a 
 customer, and without reward, if it were entirely gratuitous, 
 the degree of diligence required would be greatfer than that 
 required of the ordinary gratuitous bailee. Slight diligence 
 from such bailee would seem to approach at least very nearly 
 to ordinary diligence because of the particular circumstances. 
 The bailee in such a case is holding out to the public a greater 
 security for the property and efi'ects deposited with him than 
 the ordinary bailee. 
 
 The burglar-proof safes and vaults, the corps of faithful, 
 watchful officers, clerks and servants, the very methodical habits 
 and the manner of looking after the business and affairs of the 
 place, all tend to place these institutions on a higher plane than 
 other and ordinary places of caring for goods and property ; 
 and so the courts have construed the slight diligence required 
 to be of a character approaching very nearly, if not entirely, to 
 what is generally termed and held to be ordinary diligence. 
 
 Where persons engaged in business as bankers received for 
 safe keeping a parcel containing bonds, which was put in 
 their vault as a special deposit, and were notified that their 
 assistant cashier, who had access to the vault where the 
 bonds were deposited, and who was a person of scant means, 
 was engaged in speculating in stocks, and made no examina- 
 tion as to the goods deposited with them and did not remove 
 the cashier, who afterwards stole the bonds so deposited, it was 
 held that the bankers were guilty of gross negligence. The 
 reasoning of the court in the opinion, however, would seem 
 to place the duty of bankers upon a higher plane than what 
 is generally known as slight diligence. The court say: " Un- 
 doubtedly if the bonds were received by the defendants for 
 safe keeping, without compensation in any form, but exclu- 
 10 145 
 
§ 198.] OEDINAET BAILMENTS. [PAET 1. 
 
 sively for the benefit of the bailees, the only obligation resting 
 upon them was to exercise over the bonds such reasonable care 
 as men of common prudence would usually hestow for the protec- 
 tion of their own property of a similar character. No one taking 
 upon himself a duty for another without consideration is bound 
 in law or morals to do more than a man of his character would 
 do generally for himself under like conditions. The exercise 
 of reasonable care is in all cases a dictate of good faith. An 
 utter disregard of the property of the bailor would be an act 
 of bad faith to him ; but what will constitute such reasonable 
 care will vary with the nature, value and situation of the prop- 
 erty, the general protection afforded by the police of the com- 
 munity against violence and crime, and the bearing of sur- 
 rounding circumstances upon its security. , , . But gross 
 negligence in such cases is nothing more than a failure to be- 
 stow the care which the property in its situation demands; the 
 omission of the reasonable care required is the negligence 
 which creates the liability, and whether or not this existed is 
 a question of fact for the jur}- to determine, or by the court 
 where a jury is waived.^ . . . 
 
 " The reasonable care which persons should take of property 
 intrusted to them for safe keeping without reward will neces- 
 sarily vary with its nature, value and situation, and the bear- 
 ing of surrounding circumstances upon its security." 
 
 The business of the bailee will necessarily have some effect 
 upon the nature of the care required of him; as, for example, 
 in the case of bankers and banking institutions having spe- 
 cial arrangements by vaults and other guards to protect prop- 
 erty in their custody. Persons, therefore, depositing valuable 
 articles with them expect that such measures will be taken as 
 will ordinarily secure the property from burglars outside and 
 from thieves within, and that whenever ground for suspicion 
 arises an examination shall be made by them to ascertain that it 
 has not been abstracted or tampered with ; and also that they will 
 employ men fit both in ability and integrity for the discharge 
 of their duties, and remove those employed whenever found 
 
 1 Steamboat New World v. King, U. S. 489, 494; Smith v. First Nat. 
 16 How. 269. 474, 475; Railroad Co. Banli in Westfield, 99 Mass. 605, 611; 
 V. Lockwood, 17 Wall. 357, 383; Mil- Scott v. National Bank of Chester 
 waukee & St. Paul R. Co. v. Arms, 91 Valley, 73 Pa. St. 471, 480. 
 
 146 
 
OH. XI.] LOCATIO CUSTODIJi. [§ 198. 
 
 wanting in either of these particulars. An omission of such 
 measures would in most cases be deemed culpable negligence, 
 so gross as to amount to a breach of good faith and constitute 
 a fraud upon the depositor. 
 
 The holdings of the courts are quite diverse as to the care re- 
 quired. There seem to be two classes of holdings upon this 
 subject, the measure of care required varying, according to 
 these decisions, from that kind of care or custody bestowed by 
 the most inattentive men upon their own property, to that 
 whicli is exercised by prudent men under like circumstances. 
 
 The Pennsylvania court, in First Nat. Bank v. Graham,^ 
 announced the doctrine that a bank in such case is liable only 
 for the measure of care which the most inattentive and thought- 
 less men take of their own concerns ; and the Georgia court, 
 in Merchants' Nat. Bank v. Ouilmartin,^ held "that in case of 
 special deposit slight care is sufficient; " and the Massachusetts 
 court has held " that in order to hold the bank liable it was 
 necessary in some respects to prove that the bank was guilty 
 of gross carelessness which affected the safe custody of the de- 
 posit, or which was the occasion of the loss." ' The language 
 of the court in the case cited is as follows : " This was a gratu- 
 itous bailment ; the defendants are liable only for want of ordi- 
 nary care." In the other class of cases the courts have stated 
 the care required in stronger terms, and have held the rule to 
 be that the bailee is required to exercise the care and prudence 
 of an ordinarily prudent man. 
 
 In the case of First Nat. Bank v. Ocean Nat. Bank * the 
 court say that "the term 'gross negligence' in this class of 
 cases has been defined in various ways. The term itself has 
 been quarreled with, but it still has a place in law, and must 
 have so long as the measure of liability implied by the terra is 
 recognized, and until some better term can be invented to give 
 expression to it. It is incapable of precise definition, and its 
 application and use may lead in some cases to results unsatis- 
 factory, but that comes as directly from the nature and extent 
 of the duty in the particular case as from the phrase by which 
 
 179 Pa. St. 106, 21 Am. Rep. 49 ; First » Smith v. First Nat. Banls, 99 Mass. 
 Nat. Bank v. Rex, 89 Pa. St. 308, 33 605. 
 Am. Rep. 767. < 60 N. Y. 37a 
 
 2 88 Ga 797. 
 
 147 
 
8 199.] ORDINARY BAILMENTS. [PAET I. 
 
 a breach of duty is expressed." . . "That which consti- 
 
 tutes gross negligence, that is, such want of care as would 
 charge a gratuitous bailee for loss, must depend very much 
 upon the circumstances to which the term is to be appKed. It 
 has been defined to be the want of that ordinary diligence and 
 care which a usually prudent man takes of his own property 
 of the like description." 
 
 The Pennsylvania court has said that "the want of ordi- 
 nary care is the same as gross negligence."^ The Ohio court 
 has said that in this class of cases "a bank is liable for the loss 
 of a special deposit occurring through want of that degree of 
 care which good business men would exercise in keeping prop- 
 erty of such value;" and the Kentucky^ court has said "that 
 it shall be the care and diligence that a reasonably prudent 
 person generally exercises in the care and preservation of his 
 own property of like nature."' 
 
 But it would seem upon examination of the authorities that 
 there is not so much diversity of opinion as to the kind of dili- 
 gence required as there is in construing the facts in the par- 
 ticular case and in determining whether they are sufficient to 
 prove a want of ordinary diligence. 
 
 § 199. Other classes of custodians. — There are other 
 
 classes of business and persons that should be mentioned as be- 
 longing to the class of custodians under discussion; as, for 
 example, officers who have in their custody property takea 
 upon writs of execution or attachment,^ administrators who 
 have in their possession and under their control the personal 
 effects of estates, innkeepers who have charge of the baggage 
 and eiTects of their guests, pledgees who hold property as se- 
 curity for the payment of money or the performance of an 
 obligation, and numerous other examples which might be men- 
 tioned. In all these cases, as in the examples which we have 
 thus far discussed, the question which determines whether the 
 bailment belongs to the locatio custodke bailment is. Is the cus- 
 tody and care of the property wholly without benefit to the 
 bailee either directly or indirectly? If it is, it does not beloag 
 
 1 Lancaster County Nat. Bank v. 3 Ray v. Bank of Kentucky, 10 Bush, 
 Smith, 63 Pa. St. 47. 344. 
 
 2 First Nat. Bank v. Zent, 39 Oliio ■'Bobo.v. Patton, 6 Heisk. (TenD.) 
 St. 105. 173. 
 
 148 
 
OH. XI.] LOOATIO CUSTODI^. [§§ 200, 201. 
 
 to this class of bailments, but is a mere de^ositum — a gratuitous 
 bailment.^ 
 
 § 200. Liability of bailee in custodiae bailments. — Thegen- 
 eral rule governing the liability of the bailee in this class of bail- 
 ments — " mutual-benefit bailments " — has been often stated 
 and is well understood, but at this time it is necessary to make 
 special application of that rule to the several kinds and classes 
 of tocafo'o CMstocJ^fiE bailments; the relation being the "letting 
 of care and custody " for hire to the bailee, ordinary diligence 
 upon his part is required, and he will be liable for ordinary 
 negligence. 
 
 The general definition of ordinary diligence has been often 
 referred to, and we have seen that, being a relative term, it is 
 sometimes diflicult to apply it to a given case. The action of 
 an ordinarily prudent man under just such circumstances in 
 matters of his own cannot be measured and limited so as 
 to arrive at the precision necessary to formulate a precise 
 legal definition that will remove the question from the realm 
 of facts for the determination of the jury to that of a question 
 of law to be construed by the court. Therefore, each case 
 must be determined upon its own facts by the aid of definitions, 
 requirements and limitations that the law furnishes. The law, 
 we know, requires that the bailee shall exercise ordinary pru- 
 dence in caring for the property in his custody; that care that 
 ordinarily prudent men as a class would exercise in caring for 
 their own property, under just such circumstances ; but what that 
 care is must always be determined under proper instructions 
 by the jury, or,if there is no jury, by the court,as a matter of fact. 
 
 § 201. When does tlie liability commence and end. — The 
 liability of the bailee in this class of bailments is for the care 
 and custody of the property placed in his possession and control ; 
 it therefore follows that his liability does not begin until he has 
 the possession and control of the property, and continues until 
 the possession and control is surrendered to the bailor, or his 
 order, or assigns, or to the rightful owner. 
 
 1 As to oiScers holding property whose duty is performed for reoom- 
 upon writs, etc., Blake v. Kimball, 106 pense, and those who are finders of 
 Mass. 115; Cross v. Brown, 41 N. H. property when stimulated by offers 
 283; Aurentz v. Porter, 56 Pa. St. 115. of reward, Cumnaings v. Gann, 53 
 As to the liability of .sheriffs, officers Pa. St, 484. 
 
 149 
 
§ 199.] OEDINAEY BAILMENTS. [PAET I. 
 
 A practical question sometimes arises as between the com- 
 mon carrier and the warehouseman as to when the carrier's 
 liability ceases and the warehouseman's liability begins; or 
 in cases where the carriers are proprietors of warehouses, when 
 their liability as carriers ceases, and their liability as ware- 
 housemen begins; whether they are still subject to the extraor- 
 dinary liability of insurers, or simply liable for negligence in 
 caring for the property. 
 
 Ad early case in New York (DeMott <& Ingersoll v. Laror 
 v:ay) ' is in this respect interesting. A common carrier, Lara way, 
 was the owner and master of a canal boat, and received on 
 board his boat at Troy a hogshead of molasses and other goods 
 to be transported to Kidder's Ferry. All the goods were safely 
 unloaded except the molasses; in an attempt to hoist the mo- 
 lasses from the boat into the warehouse, and when the hogs- 
 head was nearly even with the door, the tackle attached to 
 the warehouse broke, the hogshead fell into the boat and was 
 broken, and the molasses nearly all lost. The court held that 
 Laraway was obliged to deliver the goods in safety. The de- 
 livery was not complete when the accident happened, and the 
 goods were still at the risk of the carrier, and that it was a 
 matter of no importance that the machinery employed in un- 
 loading the molasses was attached to the warehouse and be- 
 longed to it and not to the carrier. It was pro hac vice his 
 taclile, and he was responsible for its sufficiency; the liability 
 of the carrier continuing until the goods were delivered.^ 
 
 The whole matter is a question as to who has taken control 
 of the property. In Mcrritt v. Old Colony R. Co.,' it would 
 seem at first blush that a different holding was made than in 
 DeMott V. Laraway. In that case an engine was carried by a 
 truckman to the defendant's depot to be shipped upon its rail- 
 way. The defendant's agent directed the truckman to back his 
 truck up to the track near. a derrick that was used by the de- 
 fendant in hoisting heavy freight, and that a car would be 
 placed there by the employees of the defendant, who would put 
 the engine on the car. The car was placed and the men com- 
 menced to load the engine, the agent of the defendant superin- 
 tending the loading; the chain broke and the property wasin- 
 
 1 14 Wend. 335. s Witham v. Lee, Esp. 364. 3 11 Allen, 80. 
 
 150 
 
CH. XI.] LOCATIO OUSTODI^. [§ 2(12. 
 
 jured. The court held that "the carrier's liability commenced 
 when the engine was delivered to and accepted by them for the 
 purpose of transportation ; that until such delivery the truckman, 
 who was also a common carrier, would be liable; but after 
 such delivery and acceptance the defendant would be liable 
 for the negligence of those employed by them to load or trans- 
 port the engine: that it was for the jury to determine from the 
 evidence whether there had been such delivery and acceptance, 
 and in order to constitute such delivery and acceptance it must 
 appear that the defendant had, through their agents, taken and 
 assumed the charge and custody of the engine for the purpose 
 of transportation."^ 
 
 It will be seen that the principle involved in the two cases 
 was the same. The railroad company, by its servants and 
 agents, took the control and direction of the property and the 
 loading of it into their cars; having thus taken the control and 
 possession of the property the bailment liability began and the 
 company was held liable. It may therefore be said that the 
 liability of the bailee commences the moment he assumes the 
 control of the property and it is surrendered to him, and con- 
 tinues until the purpose of the bailment has been accomplished, 
 or the control is rightfully surrendered to another. This is a 
 question of fact for the jury, to be determined by the circum- 
 stances of each particular case. 
 
 § 202. Proper place and kind of storage. — The reasonable 
 diligence required of the custodian applies to the place in 
 which he stores the property, and the kind of care and custody 
 he gives to the propert}'^ while in storage. And here the rules 
 formerly stated apply and are essential and important in deter- 
 mining this question. We are to consider (1) the nature and 
 value of the article; (2) the customs of the place or trade; 
 (3) the condition of the country or climate, and (4) the condi- 
 tion of the times. These have been fully discussed.' 
 
 A rickety, tumbledown building which would not protect 
 from the weather nor bear the weight of the property stored, 
 which would be liable to collapse and thus injure and destroy 
 the goods stored, would not be a reasonably fit storage-house 
 
 1 The responsibility of a bailee be- plication, received them. Rogers v. 
 gins when the goods are delivered Stophel, 32 Pa. St. 111. 
 and he has, either expressly or by im- ^ Ante, § 43. 
 
 151 
 
§ 202.J 
 
 OEDINAEY BAILMENTS. 
 
 [part I. 
 
 for furniture or grain ; ^ nor would a place well adapted for the 
 storing of grain, or furniture, or naerchandise, be considered 
 reasonably fit for depositing valuable gems and jewelry, or the 
 keeping of bonds and securities. Then, too, the place where 
 the bank or safe-deposit or the wai'ehouse is situated is an ele- 
 ment to be taken into consideration in determining whether 
 proper care has been exercised in the custody of the property. 
 What might be considered reasonably safe in a small, quiet 
 village would be scarcely any protection in a large city. An 
 ordinary iron safe in one place might be deemed an ordi- 
 narily fit protection for the special deposits of the country bank, 
 while in the great city it would be gross negligence to use the 
 
 1 " In an action to recover for an 
 alleged negligent storing of the 
 plaintiff's carriage injured by the 
 falling in of a roof loaded with snow, 
 an instruction that defendants were 
 bound to exercise ordinary care, such 
 as a prudent man would take with his 
 own goods, and were liable if they 
 had reason to know that the build- 
 ing was unsafe, was held unexcep- 
 tional." Moulton V. Phillips, 10 R. I. 
 218. Kaiser v. Latimer, 57 N. Y. Sup. 
 883, was a case where the property 
 was destroyed by the collapse of the 
 warehouse from no external violence, 
 and it was held that in such a case 
 negligence of the warehouseman will 
 be presumed. The case was first dis- 
 cussed in 9 N. Y. App. Div. Rep. 36, 
 where the facts are given. In ISiU 
 defendant, a warehouseman, stored 
 a large quantity of household goods 
 and furniture for the plaintiff. In 
 April, 1S'.)4, fire occurred causing no 
 injury to the plaintiff's goods, but 
 necessitating repairs to the building. 
 Tlie defendant proceeded to make 
 these repairs, whicli consisted of the 
 removal of bui-nt timbers and beams 
 and replacing them with new ones, 
 and during' the progress of the work 
 the building collapsed, damaging 
 many of the plaintiff's goods. Plaint- 
 iff brought suit and recovered a ver- 
 dict of §700. The question before 
 
 the court was as to the burden of 
 proof. The court charged the jury 
 that the burden of proof was on the 
 defendant who had failed to return 
 the goods, and tliat he must, because 
 of such failure, show that he acted 
 in regard to these goods or dealt with 
 them as a prudent man would deal 
 with his own property. Defendant 
 took an exception, asked the court to 
 charge that the burden of proving 
 negligence was on the plaintiff, and 
 the court so held and reversed the 
 case. In 1S99 the same case, after 
 retrial, came before the court of ap- 
 peals (.)7 N. Y. Sup. 883), and the 
 court there held that "the collapse 
 or fall of the building, with no ex- 
 ternal violence or eartliquake or 
 similar cause, is almost invariably 
 the resultof negligence, either in the 
 construction of the building or in 
 overloading it. It is so exceptional 
 an occurrence that it is difficult to 
 imagine a case to which the rule res 
 i^Ka loquitur would more forcibly 
 apply;" holding, as we have said, 
 that the negligence of the ware- 
 houseman will be presumed where 
 the property was destroyed by the 
 collapse from no external violence 
 of the building in which he stored 
 them. 
 
 Somewhat opposed to this is the 
 case of Willet v. Rich, 142 Mass. 356. 
 
 152 
 
en. XI. J LOOATio ooSTODiJi;. [g 203. 
 
 same kind of protection. In the city not only the latest im- 
 proved deposit-vaults, with the very best of locks and appli- 
 ances to protect from the burglar, but faithful, trusted men 
 must be on guard with all the necessary appliances for call- 
 ing to their aid the police force of the city. It is the usual 
 protection given in the like business by the persons and insti- 
 tutions of their class that is required. 
 
 § 203. Diligence must keep pace with improvements.— 
 Since the splendid improvements by reason of the discoveries 
 in electricity have come to be known and used, the discoveries 
 in the use and tempering of steel, the great improvements in 
 time-locks and alarms, the requirements of ordinary diligence 
 have made great advances, so that now the safe-deposit com- 
 pany, the trust company and the banker, to be ordinarily dili- 
 gent, must be equipped with these improved facilities to the 
 extent that they are ordinarily used by those of his own class. 
 
 Hand in hand with the great inventions of the age go the 
 demands of the law; the diligence of yesterday may be the 
 negligence of to-day. The custodian for hire is bound to keep 
 pace with the advanced requirements and practice of his class. 
 If he does this he escapes liability when loss or injury comes 
 to the property intrusted to him ; if he fails, he has failed to 
 be ordinarily diligent and is liable for the damages that result 
 because of this failure. Not that it is necessary, in order to 
 escape liability, to adopt and Use the very best and newest of 
 these appliances .and inventions for the purpose of securing 
 safety and protection to their customers, but that they are 
 bound to use such as the ordinarilj'^ prudent custodians of their 
 class are using; such as are ordinarily used and demanded at 
 the place and the time, and by those engaged in like pursuits. 
 
 This question has been discussed more or less in cases where 
 it was alleged that suitable machinery was not in use, etc. 
 Those cases are somewhat analogous to the question we are 
 here discussing. In the case of Titus v. Railroad Co} the 
 court used this language : " Absolute safety is unattainable and 
 employers are not insurers. They are liable for the conse- 
 quences, not of danger but of negligence; and the unbending 
 test of negligence, in method, machinery and appliances, is 
 the ordinary usage of the business." 
 
 1 136 Pa. St. 348; Shadford v. Ann Arbor St. Ry. Co., Ill Mich. 390. 
 
 153 
 
§ 20i.j 
 
 OEDINAKY BAILMENTS. 
 
 [PAET 1, 
 
 §204. Proof of negligence. — The bailee in this class of 
 bailments, "Zomiio Custodirc,^' is required to exercise ordi- 
 nary diligence and is liable for ordinary negligence in case 
 of loss or injury to the property bailed.^ His liability, there- 
 
 ' Story, Bailm., sec. 144; Bogert v. 
 Haigbt, 20 Barb. 251; Myers v. 
 Walker, 31 III. 353; Rogers v. Stophel, 
 33 Pa. St. Ill; Dimmick v. St. Paul 
 R. Co., 18 Wis. 494; Blinn v. Mayo, 
 10 Vt. 56-59; Buckingham v. Fisher, 
 70 111. 121. In Knapp v. Curtis, 9 
 Wend. 60, plaintiflE brought suit to 
 recover for a quantity of salt dam- 
 aged by flood. The salt was piled 
 upon the wharf of defendants in Buf- 
 falo: the agent of plaintiff, in De- 
 cember, requested defendants to put 
 the salt into their warehouse, but 
 it was not done. In January a storm 
 on Lake Erie, which commenced at 
 midnight, raised the water very sud- 
 denly, and the water flowed over the 
 wharf and injured the lower tiers of 
 the salt in barrels. The wharves and 
 storehouses of the defendants were 
 built considerably higher than the 
 water had ever previous to this oc- 
 currence been known to rise, and the 
 salt upon the wharf was but little if 
 any more exposed to injury from 
 the storm than it would have been 
 had it been rolled into the store- 
 house. The judge charged the jury 
 that the defendants were liable only 
 in consequence of neglect to use that 
 care in the preservation of the salt 
 that prudent men would ordinarily 
 use over their own property; that to 
 justify a verdict against them the 
 jury must be satisfied that the in- 
 jury complained of was occasioned 
 by the neglect of the defendants 
 either in not raising their wharf to a 
 sufficient height, in not rolling the 
 salt into the storehouse, or in not se- 
 curing it after the commencement 
 of the storm, etc. Savage, G. J;, in 
 rendering the opinion of the court 
 said: "The judge stated the law cor- 
 
 rectly to the jury that the defend- 
 ants, as warehousemen or storekeep- 
 ei-s, were not liable if they had used 
 all the care and diligence respecting 
 the salt in question which prudent 
 men exercise in relation to their own 
 property; that if they had been 
 guilty of negligence, it must have 
 consisted either (1) in a want of care 
 and prudence in not raising their 
 wharf and storehouse higher, or (2) 
 in omitting to put the salt in the 
 storehouse, or (3) in omitting to se- 
 cure the salt after the storm com- 
 menced. That all these points of 
 testimony were entirely in favor of 
 the defendants. First, that the store- 
 house and wharf were as high as any 
 other, and the water had never risen 
 so high as upon the occasion of this- 
 loss ; second, had the salt been in the 
 storehouse the damage would have 
 been about the same; and third, the 
 rise was so sudden that it did not 
 appear that the .salt could have been 
 saved." Cincinnati & Chicago Air 
 Line R. Co. v. McCool, 26 Ind. 140; 
 Lancaster Mill v. Merchants' Cotton 
 Press Co., 89 Tenn. 1; Willey v. Alle- 
 gheny City, 118 Pa. St. 490. While 
 the law demands that tlie class of 
 storage should be reasonably fit and 
 safe, it does not require that the 
 warehouseman shall construct build- 
 ings secure from all possible con- 
 tingencies; if they are reasonably 
 and ordinarily safe against ordinary 
 and common occurrences it is suffi- 
 cient. Cowles V. Pointer, 26 Miss. 
 253; Waldon v. Finch, 70 Pa. St. 460; 
 Hickey v. Morrell, 102 N. Y. 454. 
 "Evidence that poultry, when put 
 in cold storage, was in good con- 
 dition; that there was moisture in 
 the room where it was kept; and 
 
 154 
 
CH. XI. J LOCATIO CDSTODIjE. [§ 205. 
 
 fore, depends upon proof of negligence, or, under certain cir- 
 cumstances, proof that he exercised ordinary diligence. 
 
 The degree of care required and the facts that generally 
 make out a case of ordinary diligence have been fully defined 
 and discussed. As a general rule the burden of proof is upon 
 the bailor to prove that the bailee was guilty of negligence. 
 
 As we have seen, the bailee is not liable for loss or injury 
 that is caused by (1) the act of God, as, for example, lightning, 
 earthquakes, tornadoes, storms, and the like ; or (2) by the act of 
 the public enemy, as by capturing and appropriating the prop- 
 erty and destroying it; or (3) by inevitable accident, as by fire, 
 burglary, etc., unless by exercising ordinary diligence loss by 
 reason of these causes could have been averted. 
 
 "When, therefore, the loss or injury to the property is ac- 
 counted for by reason of these causes, the burden of showing 
 that by exercising reasonable care and diligence the loss or in- 
 jury could have been averted is upon the bailor. 
 
 § 205. Does the burden of proof of negligence shift. — 
 "While the general rule is as we have stated, if the bailee fails 
 to redeliver the property when demanded, or at the expiration 
 of the bailment returns it in a damaged condition, a prima 
 facie case of negligence is made out agains>- him, and the bur- 
 den of proof is upon him to show that the loss or injury of the 
 property was occasioned by some of the acts which would ex- 
 cuse the bailee for the loss of property ; as by reason of the act 
 of God, the public enemy, or unavoidable accident, as, for ex- 
 ample, by riot or burglary, or such like causes that excuse the 
 bailee. But whether it would be a complete defense to show 
 that the property was destroyed by fire or was lost in a storm, 
 or by such causes as would excuse the custodian, there is some 
 disagreement among the authorities. Some of the courts have 
 held that the defendant, bailee, mu'-t go further and show 
 that he exercised reasonable diligence in endeavoring to pre- 
 vent the loss or injury; while others contend that the burden of 
 proving negligence never shifts from the plaintiff. Although 
 failure to return the property, or returning it in a damaged 
 
 that this would produce mould, war the moisture. Leidy v. Quaker City- 
 rants recovery against the warj- Cold Storage & Warehouse Co., 36 
 houseman, without proof of any Atl. 851, 180 Pa. St. 333." 
 specific act of negligence producing 
 
 155 
 
§ 1!05.J OEDINAET BAILMENTS. [PAET I. 
 
 condition without proving that it was occasioned by some of 
 the causes that would excuse the bailee, makes out a prima 
 facie case of negligence, nev.ertheless if the defendant proves 
 that the loss or injury was the result of some of the acts that 
 would excuse him, he is not required to show that the acts 
 could not have been prevented by diligence upon his part, 
 because the plaintiff still has the burden of proving negligence, 
 and in order to recover must prove that the defendajjt by the 
 exercise of reasonable care and diligence might have avoided 
 the result and saved the property ; in other words, that the 
 burden of showing negligence never shifts but is always upon 
 the plaintiff. 
 
 In Lichtenheim v. Boston <& C. R. Co} the defense was that the 
 goods were fraudulently abstracted from defendants' custody. 
 The court say: " The further question is one of more impor- 
 tance. It arises upon a prayer for instructions to the jury that 
 the burden of proof was on the defendants to show not only 
 the loss of the goods from their warehouse, but the manner 
 of their loss. The court so far adopted the prayer as to rule 
 that the burden of showing the loss of the articles from their 
 custody, and that such loss had not been occasioned by any 
 want of ordinary care and diligence on their part, was on the 
 defendants. The court, however, further ruled that they were 
 not bound to show the precise manner in which the loss oc- 
 curred, but that, if unable to do this, they might exonerate 
 themselves from that burden by clearly shoAving that the loss 
 did not happen from any negligence or Avant of care on their 
 part. This, taken with the qualifications, is unobjectionable. 
 But generally the carrier would have to show some mode in 
 which the loss occurred to sustain the burden on him, and 
 establish the fact that the loss had not happened through his 
 negligence. To hold as an abstract proposition that he must 
 in all cases show the precise manner in which the goods were 
 taken from him, or destroyed while in the warehouse, might 
 in some cases charge him unreasonably." 
 
 In Lynch v. JTluier^ it was held that "warehousemen are 
 held to the same degree of care which prudent persons usually 
 take of their own property, and proof that property was dehv- 
 ered to a warehouseman in good condition, and was damaged 
 
 i 11 Gush. (Mass.) 70. 2 46 N. Y. Sup. 428. 
 
 156 
 
CH. XI.] LOOATIO CUSTODI^. [§ 206. 
 
 when returned by him, makes out & prima facie case of negli- 
 gence against him." 
 
 In Parry v. Squire ^ it was held that " evidence that the 
 property was in good condition, and that it was not in such 
 good condition when redelivered by him, makes a prima facie 
 case against him." 
 
 § 206, The question summed up and the rule settled. — 
 The question as to the burden of proof seems to be settled in 
 the opinion of the court in the case of Claflin v. Meyer^ which 
 held that where there is a failure to account for the property 
 or its injury, and a demand and an unexplained refusal to de- 
 liver is proven, a prima facie case of negligence is made out; 
 but when the loss or injury is accounted for as having been 
 occasioned by some of the causes which excuse the bailee, then 
 the defense is complete, unless the plaintiff further shows that 
 the bailee by exercising ordinary diligence might have avoided 
 the loss or injury; that the burden of proving negligence never 
 shifts from the plaintiff. In that case the goods were lost by 
 a burglary. The court say: "Upon its appearing that the 
 goods were lost by a burglary committed upon the defendants' 
 warehouse, it was for the plaintiffs to establish affirmatively 
 that such burglary was occasioned or was not prevented by 
 reason of some negligence or omission of due care on the 
 part of the warehouseman. 
 
 " The cases agree that where a bailee of goods, although lia- 
 ble to their owner for their loss only in case of negligence, 
 fails, nevertheless, upon their being demanded, to deliver them 
 or account for such non-delivery, or,, to use the language 
 of Sutherland, J., in Schmidt v. Bloody where there is a total 
 default in delivering or accounting for the goods, this is to 
 be treated as prima facie evidence of negligence. This rule 
 proceeds either from the assumed necessity of the case, it being 
 presumed that the bailee has exclusive knowledge of the facts 
 and that he is able to give the reason for his non-delivery, if 
 any exist, other than his own act or fault, or from a presump- 
 tion that he actually retains the goods and by his refusal 
 converts them. 
 
 " But where the refusal to deliver is explained by the fact ap- 
 
 179 111. App. 324. 275 N. Y. 263. 8 9 Wend. 268. 
 
 157 
 
I 206.] OEDINARY BAILMENTS. [PAET I. 
 
 pearing that the goods have been lost, either destroyed by fire 
 or stolen by thieves, and the bailee is therefore unable to de- 
 liver them, there is no prima facie evidence of his want of 
 care, and the court will not assume, in the absence of proof on 
 the point, that such ftre or theft was the result of his negli- 
 gence. Grover, J.,in Lainb v. Camden de Amboy R. Go.^ says, 
 in delivering the opinion of the court, the question is ' whether 
 the defendant was bound to go further (i. e., than showing the 
 loss by fire) and show that it and its employees were free from 
 negligence in the origin and progress of the fire, or whether it 
 was incumbent upon the plaintiffs, to maintain the action, to 
 prove that the fire causing the loss resulted from such neg- 
 ligence.' And he proceeds to show that the charge of the 
 judge who tried the cause gave to the jury the former instruc- 
 tion and that this was contrary to the law and erroneous. So 
 Sutherland, J., in 9 Wend, (szipra), in the case of a warehouse- 
 man, says: The onus of showing the negligence 'seems to be 
 upon the plaintiff unless there is a total default in delivery or 
 accounting for the goods.' And he cites a note of Judge 
 Cowen to his report of I^latt v. Uibbard,^ in which that very 
 learned author says, criticising and 'questioning a charge of 
 the circuit ju,dge, 'the distinction would seem to be that when 
 there is a total default to deliver the goods bailed on demand, 
 the o?ius of accounting for the default lies with the bailee; 
 otherwise he shall be deemed to have converted the goods to 
 his own use and trover will lie;' but when he has shown loss, 
 or where the goods are injured, the law will not intend negli- 
 gence. The onus is then shifted upon the plaintiff. 
 
 " It will be seen, as the result of these authorities, that the 
 burden is ordinarily upon the plaintiff alleging negligence to 
 prove it against a warehouseman who accounts for his failure 
 to deliver by showing a destruction or loss from fire or theft. 
 It is not of course intended to hold that a warehouseman, re- 
 fusing to deliver goods, can impose any necessity of proof upon 
 the owner by merely alleging as an excuse that they have been 
 stolen or burned. These facts must appear or be proved with 
 reasonable certainty. Nor do we concur in the view that there 
 is in these cases any real ' shifting ' of the burden of proof. The 
 
 1 46 N. y. 371. 27 Cow. 500. « Anonymous, 3 Salk. 655. 
 
 158 
 
■CII. XI.J LOUATIO CDSTODI^. [§ 207. 
 
 warehouseman in the absence of bad faith is only liable for 
 •negligence. The plaintiff must in all cases, suing him for the 
 loss of goods, allege negligence and prove negligence. This 
 burden is never shifted from him. If he proves the demand 
 •upon the vrarehouseman, and his refusal to deliver, these facts 
 unexplained are treated by the courts 2& prima facie evidence 
 of negligence; but if, either in the course of his proof or that 
 of the defendant, it appears that the goods have been lost by 
 theft, the evidence must show that the loss arose from the 
 ■negligence of the warehouseman. 
 
 " Applying these principles to the present case, we must hold 
 that when it appeared, as it did, that the goods were taken from 
 the defendants' warehouse by a burglarious entry thereof, the 
 plaintiffs should have shown that some negligence or want of 
 care, such as a prudent man would take under similar circum- 
 stances of his own property, caused or permitted or contributed 
 to cause or permit that burglary." ' 
 
 § 207. Contributory negligence. — While it is true, as we 
 have seen, that the bailee must answer for his ordinary negli- 
 gence, and that it extends to requiring him to use ordinary 
 diligence in avoiding loss or injury of the property by any 
 •of the causes that excuse loss or injury, there is in all such cases 
 certain duties resting upon the bailor. 
 
 Contributory negligence as a defense is applicable to cases 
 of bailments, and whenever it can be shown that the bailor 
 himself contributes to the negligence that occasioned the loss 
 or injurj', he cannot recover in an action against the bailee. 
 In Parker v. Union Ice- & Salt Co.^ it was held " that damages 
 are not recoverable from a warehouseman, a bailee for hire, 
 because of injury to goods stored through the unfitness of the 
 warehouse as a place of storage, where the bailor has equal 
 -opportunities with the bailee of knowing whether his goods 
 are liable to injury by storage in an unsuitable place. The 
 •court say : ' From the above facts the court concluded ' (the 
 ■court below), 'as a matter of law, that, the parties being 
 equally negligent, no recovery could be had.' The conclusion 
 
 'Claflin V. Meyer, 75 N. Y. 263; N. Y. 184; Knight v. Piella, 111 
 Fairfax v. Railway Co., 67 N. Y. 11; Mich. 9. 
 Steers v. Liverpool Steamship Co., 57 259 Kan. 626, 54 Pac. 672. 
 JSr. Y. 1; Burnell v. Railway Co., 45 
 
 159 
 
§ 207.] OEDINAET BAILMENTS. [PAET I. 
 
 of the court was sound. The ordinary rules of liability for 
 negligence and contributory negligence obtain in cases of bail- 
 ment such as the one in question. A bailor who knows the 
 unfitness of the place of storage of goods provided by the 
 bailee, or who has equal opportunities with the bailee of know- 
 ing it, who sees and inspects the place of storage, and who — 
 there being no latent defects in it — passes judgment upon it 
 as a fit place for his purposes, will be deemed equally at fault 
 with the bailee if damage result to his goods." The principle 
 has been generally recognized as applying to cases of liability 
 of bailee.' 
 
 In the case of Sohmps v. Strum,^ defendant kept a bath tank 
 and charged five cents for a bath ; he supplied no lockers, and 
 his patrons deposited their clothing on a bench near the tank. 
 When requested he would receive from his customers such 
 articles as the}^ wished particular care taken of. While plaintiff, 
 who was a regular customer, was bathing, a watch, a diamond 
 ring and §55 were stolen from his clothes on the bench. He 
 had not availed himself of the privilege of depositing these 
 valuable articles with the proprietor. The court say: "The 
 defendant's duty was measured by what he undertook to do. 
 The accommodations he afforded and the protection which he 
 gave were all known to those who frequented his place, and in 
 accepting what was offered they must be deemed to have been 
 satisfied with it. It was that and that alone which they paid 
 for, and the measure of the defendant's obligation to them was 
 the careful observance of that which the facts show he assumed 
 to perform." . . . "We think also that the plaintiff was 
 guilty of contributor}' negligence in placing his valuables in 
 such an exposed place, and in not depositing them with the de- 
 fendant for safe keeping as he had previously done." . . ■ 
 "Having failed to avail himself of a means of protection af- 
 forded by the defendant, which ordinary prudence required 
 him to adopt, he was himself guilty of negligence which in 
 itself was sufficient to bar a recovery." ^ 
 
 1 Defendant's customer, without woman. In the meantime tlie purse 
 
 his request or notice to him. placed was stolen. Held, that the oustom- 
 
 her jacket over her purse on a table er's negligence precluded a recofery. 
 
 in a fitting-room in his tailoring es- McAllister t. Simon, oT N. Y. S. T& 
 
 tablishment, and then left the room 254 n. y. Sup. 140. 
 
 until notified to return by his fore- ' '' When the bailor, or depositor, 
 
 160 
 
CH. XI.J LOCA.TIO CUSTODiyE. [§§ 208, 209. 
 
 § 208. Negligence of servants. — The general rule, making 
 the master liable for the acts of servants while acting within 
 the scope of his employment, obtains here, and for the same 
 reason. The right of selection is the foundation of the rule. 
 The master has the right to choose his servants, and must 
 choose those upon whom he may depend. If the master has 
 not the right to choose, he may not be held responsible for the 
 servant's acts; and, indeed, the relation of master and servant 
 cannot be said to exist if the right of choice does not exist.' 
 But the relation of master and servant existing, it follows that 
 the master is liable for the negligence of the servant while act- 
 ing within the scope of the employment, and for the reasons 
 above stated. 
 
 This rule applies to corporations as well as individuals.^ It 
 therefore follows that the custodian bailee is liable for the acts 
 and for the negligence of his servants. The warehouseman, 
 the elevator man, the safe-deposit company, the common car- 
 rier, the wharfinger, the storage company and all those en- 
 gaged in the business of caring for the property and giving 
 custody for hire, are subject to this rule of law. 
 
 §209. Unanthorized use of chattels. — This subject has 
 been quite sufficiently discussed under another head.' It may 
 remain, however, to be said that the rule applies to custody 
 bailments the same as to any other class of bailments. The 
 bailee has no right to use the property that is placed in his care 
 and custody for keeping ; or to use it in any way not consist- 
 ent with the bailment relation ; and should he at any time be 
 
 not only knows the general character ter was at the time acting under em- 
 and habits of the bailee or depositary, ployment by the former; it must be 
 but the place where and the manner shown in addition that the employ- 
 in which the goods deposited are to ment created the relation of master 
 be kept by him, he must be presumed and servant." King v. N. Y. etc. R. 
 to assent in advance that his goods Co., 66 N. Y. 181; Kimball v. Cush- 
 shall be thus treated; and if under man, 103 Mass. 194; Pickens v. 
 such circumstances they are dam- Diecker, 21 Ohio St. 218; Merchants' 
 aged or lost, It is by reason of his own Nat. Bank v. State Nat. Bank, 10 
 fault or folly." Knowles v. Atlantic Wall. (U. S.) 604. 
 & St. L. R. Co., 38 Me. 55. '■' Frankfort Bank v. Johnston, 24 
 iHexamer v. Webb, 101 N. Y. 377, Me. 490; Munster v. Chicago, M. & 
 held: ''In order to establish the liar St. P. Ey. Co., 61 Wis. 325; Kimball 
 bility of one person for an injury v. Cushman, 103 Mass. 194. 
 caused by the negligence of another, 3 Ante, §§ 46, 47. 
 it is not enough to show that the lat- 
 
 11 161 
 
§§ 210, 211.J OEDINAET BAILMENTS. [PAET I. 
 
 guilty of using the chattels for his own benefit, and in viola- 
 tion of the bailment relation, it would terminate the bailment. 
 
 § 210. Delivery, misdelivery, non-delivery. — The bailee 
 who for hire has the chattels for safe keeping in his custody 
 must, at the termination of the bailment, return the goods; it 
 may be that the bailment contract, by express stipulation or by 
 implication, does not provide or contemplate the return of the 
 specific articles bailed, as in case of wheat stored with the ele- 
 vator-man with the implied understanding that the particular 
 wheat will be stored in large bins with other wheat, and that 
 the bailment will be fully answered as to all its requirements 
 by returning other wheat of the same kind, quality and quan- 
 tity; or where wheat is stored with the miller to be returned 
 in flour as called for. But in every case of this class of bail- 
 ments, redelivery m some form is contemplated, and it is the 
 duty of the bailee to see that there is such a redelivery as the 
 bailment contract requires. Nor can he dispute the bailor's 
 title except at his own risk, or require of him, before redelivery, 
 proof of the property bailed.' 
 
 Not only is the bailee required to deliver the goods he has 
 had in his custody to the bailor at the termination of the bail- 
 ment, but for a misdelivery, whether by mistake or negligence, 
 he will be liable in trover; for mistake or negligence in the 
 performance of this duty which renders it impossible for him 
 to deliver the property, he will be held accountable the same 
 as though he had converted the property to his own use.^ He 
 will be held to know who his bailor is, and can have no legal 
 reason for making a mistake in delivery. 
 
 § 211. Confusion of goods. — As has been seen, the contract 
 of bailment, often by express terms or by implication, pro- 
 vides that the chattel bailed, as wheat or corn, may be mixed 
 with other property of the same kind and quality, and that the 
 bailment can be satisfied by a redelivery of the same quality 
 from the common mass. The obligation is, however, always 
 upon the bailee, unless acting by the direction of the bailor, to 
 see to it that the objects and contract restrictions of the bail- 
 ment are fully adhered to, and if he fails in this he becomes lia- 
 
 1 McCafiferty v. Brady (Pa.), 9 Atl. 11 Cush. 70; Bank of Oswego v. Doyle, 
 37. 91 N. Y. 33; Collins v. Burns, 63 
 
 2 Liohtenheiua v. Boston P. R. Co., N. Y. 1. 
 
 163 
 
CH. XI.] LOCATIO OUSTODIiE. [§ 211. 
 
 ble. So, if he mixes grain with grain of an inferior quality, or 
 so confuses goods with other goods to the damage of the bailor, 
 he will be held to have converted the property ; for, when de- 
 manded, each bailor is entitled to his share, and, unless the rule 
 is varied by contract or usage, to his specific property. In 
 Bretz V. Diekle^ it was held "that if a bailee, having charge 
 of the property of others, should confound it with his own 
 so that the line of distinction cannot be traced, all the incon- 
 venience of the confusion is thrown upon the bailee who pro- 
 duces it. However, where the owners consent to have their 
 wheat mixed in a common mass, each remains the owner of his 
 share in the common stocli. If the wheat is delivered in pur- 
 suance of a contract bailment, the mere fact that it is mixed 
 with a mass of like quality with the knowledge of the depos- 
 itor, or bailor, does not convert that into a sale which was orig- 
 inally a bailment, and the bailee of the whole mass, of course, 
 has no greater control of the mass than if the nature of each 
 were kept separate. If the commingled mass has been deliv- 
 ered, not simply stored, each is entitled on demand to receive 
 his share; if for conversion into flour, to his proper proportion 
 of the product." "It makes no difference that the bailee had 
 in like manner contributed to the mass of his own wheat, for, 
 although the absolute owner of his own share, he still stands 
 as a bailee of the others, and he cannot abstract more than 
 their share from the common stock without a breach of the 
 bailment, which will subject him not only to a suit, but may 
 result in criminal prosecution." ^ 
 
 The question often arises. Is the particular contract by rea- 
 son of which the property was commingled, a contract creat- 
 ing a bailment, or is it one of sale? This general question 
 was discussed under our general treatment of the subject,' but 
 we may perhaps be permitted to note the distinction here as 
 touching the admixture or commingling of property bailed for 
 custody. Here, as always, it seems to be a question of con- 
 trol. Can the bailor compel the bailee to deliver his property 
 to him, or is it by the contract out of his control ? In Zyon v. 
 
 1117 Pa. St. 589; Chase v. Wash- 2 Hutchinson v. Com., 33 Pa. St. 473. 
 burn, 1 Ohio St. 344; Hutchinson v. ^Ante, §33. 
 Com., 33 Pa. St. 473. 
 
 103 
 
§ 212.] OEDINAEY BAILMENTS. [PART I. 
 
 Lenon'^ the distinction is thus stated: "If the dealer has the 
 right at his pleasure either to ship and sell the same on his 
 own account, and pay the market price on demand, or retain 
 and redeliver the wheat, or other wheat in the place of it, the 
 transaction is a sale. It is only when the bailor retains the 
 right from the beginning to elect whether he will demand the 
 redelivery of his property, or other of like quantity and grade, 
 that the contract will be considered one of bailment." "The 
 distinction is, Can the depositor by his contract compel a de- 
 livery of wheat whether the dealer is willing or not ? If he 
 can, the transaction is a bailment." 
 
 § 313. Criminal liability. — The bailee in this class of bail- 
 ments holds the property for no other purpose than to care for 
 it during the continuance of the relation in accordance with 
 the contract, and redeliver it to the bailor upon the termina- 
 tion of the relation. As we have seen, he has no title to the 
 property except that possessory interest given him as bailee, 
 and his right to the possession ceases whenever he is guilty of 
 fraud or bad faith, or any misuse of the property. The rela- 
 tion is such that should the bailee, with intent to deprive the 
 bailor of his property, and without his consent, convert the 
 same to his own use, he would be guilty of embezzlement. 
 
 Embezzlement is said to be "a species of larceny, and the 
 term is applicable to cases of stealing by clerks, or carriers, of 
 property coming into their possession by virtue of their em- 
 ployment."- 
 
 It will not be necessary to discuss in extenso this question, ' 
 as it belongs more properly to a treatise on criminal law. In 
 many of the states, however, special statutes have been en- 
 acted relating to warehousemen and like bailees. These stat- 
 utes are somewhat sweeping in their provisions, generally re- 
 quiring the issuing of a receipt for the property stored to the 
 bailor, which must bear the date of its issuance, must state 
 from whom, and the amount received, condition, quality, etc., 
 and the terms and conditions of the bailment; that no receipt 
 shall be issued for property not actually stored; that no per- 
 son operating any warehouse shall sell, incumber, ship, trans- 
 
 1106 Ind. 567; Bottouberg v. Nixon, Mich. 431; Morningstar v. Cunning- 
 97 Ind. 106; Sexton v. Graham, 53 ham, 110 Ind. 328. 
 Iowa, 181; Ledyard v. Hibbard, 48 2 Sykes v. The People, 137 HUH. 
 
 164 
 
OH. XI.J LOOATIO CUSTODI^. [§ 212. 
 
 fer, or in any manner remove, or permit to be shipped, trans- 
 ferred, or removed beyond his custody and control, any grain, 
 etc., for which a receipt has been given by him, whether re- 
 ceived for storage, shipping, grinding, manufacturing, or other 
 purposes, without the written assent of the holder of the re- 
 ceipt, and providing punishment for any violation of these pro- 
 visions. In Sykes v. People,^ the Illinois court discussed a 
 similar statute. The court say : " It cannot be doubted that 
 commercial transactions are greatly facilitated by this transfer 
 of property, and the purpose of the act was to protect the 
 holders of such public warehouse receipts from imposition and 
 fraud. The receipts are required to be the true representatives ■ 
 of property actually in store in the warehouse, and their issu- 
 ance is prohibited under any other conditions or circumstances. 
 If the bank, in this case, as it might, had put these warehouse 
 receipts in circulation, an actual fraud would have been com- 
 mitted, and-the evil intended to be prevented by the statute 
 consummated. By the issuance of the receipts to tlie bank, it 
 was furnished with the means of perpetrating a fraud, and this 
 is one of the objects this statute sought to prevent. Any other 
 construction would open the door to unlimited fraud, and ren- 
 der nugatory the protection attempted to be afforded to trans- 
 actions through the public warehouses of the state by the 
 statute. 
 
 "It follows that, as touching the question of the guilt or in- 
 nocence of the defendant, the intent with which the receipts 
 were issued by him was immaterial. The intent necessary to 
 be found, to constitute this offense, related alone to whether 
 defendant intended to issue the receipt knowing it to be false. 
 Thus far the common-law doctrine, that every criminal offense 
 consists of the joint operation of act and intent, enters into and 
 must be considered as applying to statutory offenses.^ 
 
 1127 111. 117; MoCutoheon v. Peo- his control, for which he had given 
 pie. 69 IIL 601; State v. Morse, 53 a receipt, leaving the receipt out- 
 Iowa, 509. standing, he was criminally liable 
 
 2 Bishop's Statutory Crimes, 351- under a similar statute, although the 
 
 361 ; Gardner v. People, 63 N. Y. 399; grain was so shipped with the knowl- 
 
 Halsted V. State, 41 N. J. L. 553. The edge and without objection by the 
 
 supremecourtof Iowa, instate v.Ste- holder of the receipt. The court 
 
 venson, 53 Iowa, 701, held that where said: "It is evident from this whole 
 
 a warehouseman shipped grain out of section that it is for the protection 
 
 165 
 
§§ 213-215. j OEDINAET BAILMENTS. [PAET I. 
 
 " If such receipts were issued by the defendant, he knowing 
 that the property therein represented was not in fact in store 
 as therein designated and described, the crime created by this 
 section of the statute, as it relates to the issuance of such re- 
 ceipts, was committed. As before stated, it is immaterial 
 whether the defendant intended a fraud upon the bank or 
 other persons, if in fact his act knowingly committed was 
 within the prohibition of the statute." 
 
 § 213. Termination. — The letting of custody for hire being 
 the object of this class of bailments, it will be seen that the 
 relation can be determined at the will of the bailor, and by 
 paying for the custody. So the bailee must at all times upon 
 reasonable demand and notice be ready to deliver the property, 
 for the purpose of the bailment has then been accomplished. 
 
 The relation may also be terminated in the several ways 
 that have already been discussed, as {a) by operation of law, 
 as where the bailee becomes the owner of the property, by 
 death of the parties, unless it be of such a nature that the per- 
 sonal representatives can carry out the bailment; (J) by loss 
 or destruction of the property, when there could no longer be 
 any subject of the bailment; (c) by mutual consent; and {d)hy 
 the wrongful acts of the bailee, as by misuse of the property 
 or neglect to give it proper care.^ 
 
 § 2l4r. Conversion. — It is not necessary to again discuss 
 the question of conversion, it having already been sufficiently 
 treated.^ 
 
 § 215. Compensation — Lien. — This bailment is one of the 
 hiring bailments, and the bailee, for the custody and care be- 
 
 of the community as well as the pro- of perpetrating a fraud, which it is 
 
 teotion ot the holder of the voucher, one of the objects of the statute to 
 
 It is clear that Petrie (such holder), prevent." 
 
 in this case, with the receipt in his ' In Cobb v. Wallace, 5 Cold, 
 possession, might perpetrate a fraud (Tenn.) 539, the court held that the 
 upon third parties, the grain not bailee is bound to return the prop- 
 being stored with the defendant as erty upon reasonable notice. Bailey 
 stated in the receipt. The defend- v. Colby, 34 N. H. 29, That -sale by 
 ant could not, innocently, under the bailee terminates, Dunlap v. Glea- 
 statute, with such a receipt outstand- son, 16 Mich. 158; Negus v. SimpsoB, 
 ing, ship the wheat beyond his con- 99 Mass. 888; Morse v. Crawford, 17 
 trol, even in the presence of Petrie Vt 499. 
 and with liis verbal assent. Such an 2 Ante, § 64. 
 act would furnish Petrie the means 
 
 166 
 
OH. XI.J LOOATIO CnSTODIiE. [§ 215. 
 
 stowed, is entitled to compensation. This compensation is 
 usually fixed by the contract, from usage and custom well 
 understood, or by the reasonable charges of the bailee. For 
 the payment of this compensation the bailee has a common-law 
 lien upon the subject of the bailment. This lien is a special lien 
 and not a general one ; a lien upon the goods or property that 
 he has cared for — that have been and are within his control. 
 The general principles governing this lien have been so fully 
 stated that we will not again discuss them. 
 
 167 
 
PAET SECOlsTD 
 
 PLEDGE OR PAWN 
 
 §216. 
 217. 
 318. 
 219. 
 220. 
 321. 
 
 333. 
 
 223. 
 
 324 
 235. 
 
 336. 
 
 337. 
 
 228. 
 
 229. 
 230. 
 231. 
 
 232. 
 
 OHAPTEE I. 
 
 THE RELATION. 
 
 Pignus, 
 
 The scope of the business. 
 
 Definition. 
 
 Some essentials. 
 
 Competent parties. 
 
 There must be assent of the 
 
 parties. 
 Corporations, partnerships, 
 
 agencies. 
 Property the subject of the 
 
 pledge. 
 Corporeal or incorporeal. 
 Property not in existence or 
 
 acquired. 
 Exceptions. 
 Exempt property may be 
 
 pledged. 
 Pensions and pay to officers 
 
 and soldiers. 
 The debt or engagement. 
 Pledge as collateral security. 
 
 Contract should specify 
 
 debt secured. 
 
 Pledge may be to secure 
 
 past, present or future in- 
 debtedness. 
 
 333. 
 
 234. 
 
 335. 
 
 236. 
 
 337. 
 
 The pledgor may pledge 
 
 his property to secure the 
 debt of another. 
 
 As to holding prop- 
 erty for former or another 
 debt. 
 
 Continuing security — 
 
 Future transactions. 
 
 When several debts — 
 
 Applications of payment. 
 
 A pledge which secures 
 
 a debt bearing interest se- 
 cures the interest as well as 
 the debt. 
 
 237a. Delivery of the property by 
 the pledgor — Acceptance 
 and continued possession 
 of the property by the 
 pledgee. 
 
 If property not delivered — 
 Pledge, when good. 
 
 The delivery. 
 
 Constructive or symbolical 
 delivery. 
 
 238. 
 
 239. 
 240. 
 
 § 216. Pignus. — This class of bailments belongs to the gen- 
 eral class of benefit bailments, that is, bailments for the benefit 
 of both parties, and in the Eoman classification c&Wedi jpignus. 
 
 Pignus is a Latin word and signifies pledge; the deposit of 
 the thing, or the transfer of the possession of it, or dominion 
 over it as security for the performance of an obligation. " The 
 
 169 
 
§ 216.] PLEDGE OE PAWN. [PAET 11. 
 
 essential idea in the Eoman and civil law is the putting of 
 property, whether of a chattel or land, or territorial jurisdic- 
 tion (or servants or children wlien they are regarded as prop- 
 erty), under the hand of the creditor or pledgee as security, so 
 that, although the right of the owner was not extinguished,, 
 the creditor or pledgee could enforce his claim without legal 
 proceedings, or no effort to gain possession; and this is also the 
 essential idea injxtirii and also in the strict use of pledge ; while 
 hypothec and mortgage imply that the owner retains possession 
 and that the creditor has only the right of action, or a right 
 to demand possession in the contingencies agreed on."' 
 
 It is suggested by some of the writers upon this subject that 
 a pledge is of more modern application, and has a different 
 and broader significance than the term " pawn," or the business- 
 of pawning; that at an early day the business was not known 
 by the term " pledge," but was rather confined to that of pawn- 
 ing of personal effects, and did not embrace the larger transac- 
 tions of modern business, but was limited to the personal pawn- 
 ing of personal articles of adornment and use. It is true the 
 subject generally suggests the three golden balls and a show 
 Avindow of some little ofHce filled with jewelry, watches, dia- 
 monds, bank-bills, gold and silver money displayed to lure the 
 poor unfortunate who must realize a small sura, to step inside 
 and leave what valuables he has left, and take away a pittance 
 at a large rate of interest. 
 
 But to-daj' this is a very small part of the business embraced 
 by the subject we have in hand. Year by year has added to 
 the great volume of business that is now included in this class 
 of bailments. As the business world has advanced, as the age 
 of invention and improvement has more or less taken posses- 
 sion of the pecuniary interests of mankind, larger demands 
 have been made and met along the line of loans and securities, 
 and from the once small and somewhat unpopular business of 
 the pawnbroker a new and larger business has emanated, tak- 
 ing on new and more respectable habiliments. And while the 
 same golden balls allure the unfortunate to deposit his few 
 personal jewels and adornments, this other and more respected 
 business has grown into existence and flourishes under a differ- 
 ent name, and is patronized by larger business interests. Now 
 
 1 Century Dictionary. 
 170 
 
CH. I.J thp: eelatioh. [§§ 217-219. 
 
 we have not only the pawnbroker, but the loan and security 
 companies, bank and trust companies, rich corporations and 
 individuals who become pledgees, holding the personal chat- 
 tels of individual business men and as well of great corpora- 
 tions, so that the relation of pledge and pawn has come to be 
 an important factor in the modern business world. 
 
 § 217. The scope of the business. — The scope of the business 
 can hardly be described. Beside the little pawn shop which 
 deals in the few little parcels of property, with but a small 
 amount of capital invested, may be found the banking houses 
 of immense capital, holding within its vaults, as security for its 
 immense loans, bonds and securities of great amount and value, 
 so that the relation of pledge and pawn embraces a great scope 
 and variety of business and business relations. Not only is it 
 confined to the public institutions like pawnbrokers' offices, 
 the banking institutions, the loan and security companies, but 
 it also embraces a large amount of private transactions where, 
 property is left by one individual with another as security for 
 the payment of his debt, or for the performing of his obligation, 
 
 § 218. Definition. — A pledge or pawn may be defined to be 
 a bailment of personal property as securitj'^ for the payment of 
 a debt or the performing of an obligation. Lord Holt ' defines 
 it: "When goods or chattels are delivered to another as a 
 pawn to be security for money borrowed of him by the bailor." 
 Sir William Jones ^ defines a pledge to be " a bailment of goods 
 by a debtor to his creditor to be kept till the debt is discharged." 
 Mr. Hale ' defines a pledge or pawn to be " a bailment to secure 
 the payment of a debt or the performance of an engagement 
 accompanied by a power of sale in case of default." 
 
 The definition of Hale seems to be the most comprehensive, 
 and we have adopted it as the most satisfactory. 
 
 § 219. Some essentials. — From the definition itself it will 
 be observed that there are certain essentials to a pledge or 
 pawn, which from the very nature of the relation- are indis- 
 pensable. 
 
 (1) There must be competent parties. 
 
 (2) Property the subject of the pledge or bailment. 
 
 (3) Debt or engagement. 
 
 1 Cpggs V. Bernard, 2 Lord Ray- ^ Jones, Bailments, sec. 35. 
 mond, 909-913. 8 Hale, Bailments, sec. 25. 
 
 171 
 
§§ 220, 221.J PLEDGE OR PAWN. [PAET II. 
 
 (i) Delivery of the property by the pledgor; and 
 
 (5) Acceptance and continued possession of the property by 
 the pledgee. 
 
 To these several essentials necessary for the establishment 
 and continuance of the relation we turn our attention. 
 
 § 2*20. Competent parties. — The relation is one of contract, 
 and so the requirements as to competency of parties are the 
 same as in contracts. The parties must be competent to enter 
 into a contract relation, and the same disabilities that preclude 
 certain persons from becoming parties to a contract apply to 
 their assuming this relation. 
 
 At common law, infants, married women, lunatics, drunkards 
 and idiots were held to be incompetent to enter into contract 
 relations; but while the general rule would exclude these 
 classes, there are exceptions to this rule. As, for example, in- 
 fants msLV be allowed to contract for necessaries; and so may 
 married women;' a drunkard when not so much under the in- 
 fluence of intoxicants as to deprive him of his competency to do 
 business; a lunatic while enjoying a lucid interval. And so 
 statutes in several of the states have given to married women 
 the right to deal with their own separate property and to make 
 contracts with reference to it. This would include a contract 
 for the pledging of the same, but in such case it would be neces- 
 sary to show that the contract of pledging was with reference 
 to her separate property. 
 
 All this has been discussed in a former chapter,'* and it will 
 not be necessary to here repeat it. 
 
 § 221. There must be assent of the parties. — It goes with- 
 out saying that a contract to be valid should be entered into 
 by consent of the parties, and if the assent of the parties can- 
 not be legally shown, there can be no pledge; and so, if con- 
 sent is obtained by fraud, or duress, or misrepresentation, it 
 will vitiate the contract and the pledge will not be binding 
 upon the parties. 
 
 In the case of Jlead v. Bwin ' it was held that a pledge ob- 
 tained by fraudulent false representation was void, and though 
 unredeemed by the debtor it vested no interest in the pledgee; 
 
 1 Campbell v. White, 23 Mich. 178; "^ Ante, §g 13-16. 
 Chamber of Commerce v. Goodman, 233 jj, y. 275, 
 110 Mich. 501, and cases cited. 
 
 173 
 
CH. T.] THE EELATION. [§ 222. 
 
 that it was void in the law. " Every contracting party has 
 an absolute right to rely upon the express statement of an ex- 
 isting fact, the truth of which is known to the opposite party, 
 and unknown to him, as the basis of a mutual agreement." 
 
 " A contract obtained by fraud, though perfect in form, is 
 void in law ; the return of fair and free consent is essential to 
 the validity of every mutual agreement. The homely maxim 
 ' honesty is the best policy ' is nowhere more firmly rooted and 
 grounded than in the foundation of our civil jurisprudence. 
 No man can safely rest on a title acquired through his own 
 deliberate wrong." . . . " It is not necessary to question 
 whether the extortionate terms of the pledge rendered it void 
 as contra honos mores, and opposed to public policy, for the 
 agreement was fatally tainted in its inception, and it was no 
 sooner completed between the parties than it was annulled by 
 operation of law." The maxim that fraud " vitiates all con- 
 tracts" is applicable here. 
 
 § 223. Coi'poratlons^ partnerships, agencies. — A corpora- 
 tion being a legal entity capable of holding and owning prop- 
 erty, recognized in the law as a person, may be a valid party 
 to a pledge as pledgor or pledgee whenever the transaction is 
 within the scope of its corporate authority. So a partnership 
 being recognized in the law as a concern able to do business, 
 to own and possess property, is competent to be either a 
 pledgor or a pledgee of property whenever the pledge is made 
 within the scope of the partnership authority. If, however, 
 the property should be pledged, though generally within the 
 scope of the business of the concern, if it should appear that it 
 was an unusual proceeding, it would be looked upon by the 
 court with some degree of suspicion. The pledge must be for 
 the benefit of the concern; that is, for the corporation or co- 
 partnership; and if it should appear that it was pledged to 
 secure the individual indebtedness of one of the partners, or of 
 one of the directors of the corporation, it would be held void 
 as against the creditors of the concern. Such action would be 
 beyond the scope of the authority of a partner or individual 
 member of a corporation. 
 
 An agent may, acting within the scope of his authority, 
 make his principal, if the principal is competent to be a party to 
 the relation, either a pledgor or pledgee, as the particular busi- 
 
 173 
 
§§ 223, 224.J PLEDGE OE PAWN. [PAET II. 
 
 ness may demand ; but here the rules of agency will be in- 
 voked — the agent must have authority to act in that regard. 
 If he is a general agent, and it is along the line of his duty as 
 such general agent, he would not need to have special authori- 
 zation from the principal. The maxim that obtains in the law 
 of agency obtains here: Quifacitper alium facit per se. 
 
 § 223. Property the subject of the pledge.— Every kind of 
 property, whether corporeal or incorporeal, if capable of trans- 
 fer by delivery of the thing itself, or by assignment of the evi- 
 dence of ownership, may be the subject of the pledge or pawn. 
 The property must be personalty; real property is not the sub- 
 ject of a pledge. 
 
 §224. Corporeal or incorporeal. — Formerly the relation 
 of pledge or pawn was confined to corporeal personalty, as 
 articles of jewelry, wearing apparel, domestic animals, and 
 such like personal property, and did not include personalty 
 that is ordinarily denominated and known as incorporeal per- 
 sonalty, such as shares of stock, debts, negotiable and non- 
 negotiable paper, choses in action, and the like. The courts 
 proceeded upon the theory that such property could not be de- 
 livered in the way the law required property to be delivered 
 in order to create a pledge. 
 
 In the case of Wilson v. Little ^ this question was discussed, 
 and the court there announced the doctrine, which has been 
 the doctrine ever since, that incorporeal personalty may be the 
 subject of a pledge. In that case the court say: "The argu- 
 ment of the defendant in this case is founded on the assumption 
 that when personal things are pledged for the payment of a 
 debt, the general property and the legal title always remain 
 in the pledgor; and that in all cases where the legal title is 
 transferred to the creditor the transaction is a mortgage and 
 not a pledge. This, however, is not invariably true. But it is 
 true that possession must uniformly accompany a pledge. The 
 right of the pledgee cannot otherwise be consummated. And 
 on this ground it has been doubted whether incorporeal things 
 like debts, money in stocks, etc., which cannot be manually de- 
 livered, were the proper subjects of a pledge. It is now held 
 that they are so; and there seems to be no reason why any 
 legal or equitable interest whatever in personal property may 
 
 1 2 N. Y. 443. 
 174 
 
-oil. I.J THE KELATION. [§§ 225, 226. 
 
 not be pledged, provided the interest can be put, by actual de- 
 livery or by vrritten transfer, into the hands or within the 
 power of the pledgee, so as to be made available to him for the 
 satisfaction of the debt. Goods at sea may be passed in pledge 
 by a transfer of the muniments of title, as by a written assign- 
 ment of the bill of lading. This is equivalent to actual posses- 
 :sion, because it is a delivery of the means of obtaining possession. 
 And so debts and choses in action are capable, by means of a 
 written assignment, of being conveyed in pledge." 
 
 In Stewart v. Lansing ' the subject of the pledge was coupon 
 bonds issued by a township to a railroad company; and in 
 Penny v. Lynn^ it was a lease of real estate which was pledged 
 as collateral security for the payment of a promissory note. 
 
 § 225. Property not in existence or not acquired. — It is a 
 general rule that property not in existence, or not yet acquired, 
 cannot be the subject of a pledge, for the reason that it cannot 
 be delivered by the pledgor to the pledgee, and delivery, as we 
 ^hall see, is a requisite to a valid pledge. The courts, however, 
 have held that where a contract to pledge has been made, and 
 the contract cannot be carried out by reason of this general 
 :rule, the agreement would attach to the property as soon as it 
 is produced or comes into the ownership or possession of the 
 pledgor; and it may be said that in case of failure of the 
 ipledgor to carry out the contract to pledge, an action would 
 lie for whatever damages the pledgee may have suffered by 
 reason of it. This, however, is more in the nature of a contract 
 to pledge, and can hardly be held to be a pledge in the full 
 meaning and extent of that relation. 
 
 §226. Exceptions. — But to the general rule above men- 
 tioned there are exceptions. "Where property has a potential 
 •existence and the pledgor has a potential interest in it, it may 
 be the subject of a pledge or pawn. It is not enough that the 
 pledgor should have a possibility or expectancy of acquiring 
 the property ; it must be a present interest in the property of 
 which the thing pledged is the product, growth or increase. 
 For example, the owner of a flock of sheep may pledge the 
 ■wool to be grown on his sheet) during the year, but he cannot 
 
 1104U. S. 505. 667; Schouler's Bailments, sec. 172; 
 
 2 58 Minn. 371, 59 N. W. 1043; Mor- Sinker, Davis & Co. v. Green, 135 Ind, 
 lis Canal Co. v. Fisher, 9 N. J. Eq. 434, 35 N. E. 263, 16 Fed. 324. 
 
 175 
 
220.] 
 
 PLEDGE OE PAWN. 
 
 [part II. 
 
 pledge the wool to be grown upon the sheep of another per- 
 son, or upon sheep which he expected to purchase, or of which 
 he probably would come into the possession. So the crops to 
 be grown upon his own land may be the subject of a pledge 
 by the pledgor, but not crops on the lands of another, unless 
 the pledgor has a present interest in the land and the crop. 
 This is upon the theory that in the natural course of events the 
 property pledged will be produced as the property of tbe 
 pledgor. As in case of the wool to be grown upon the sheep 
 owned by the pledgor, in the natural course of events the wool 
 will grow and will be the property of the pledgor.' 
 
 'Low V. Pew, 108 Mass. 347; Jones 
 V. Richardson, 10 Meto. 481; Bellows 
 V. Wells, 36 Vt. 599; Van Hoozer v. 
 Corey, 34 Barb. 9. In Low v. Pew, 
 108 Mass. 347, the court used this lan- 
 guage: "It is an elementary princi- 
 ple of the law of sales that a man can- 
 not grant personal property in which 
 he has no interest or title. To be 
 able to sell property he must have 
 a, vested right in it at the time of the 
 sale. Thus, it has been held that a 
 mortgage of goods which the mort- 
 gagor does not own at the time the 
 mortgage is made, though he after- 
 wards acquires them, is void. Jones 
 V. Richardson, 10 Met. 481. The same 
 principle is applicable to all sales of 
 personal property. Rice v. Stone, 1 
 Allen, 566, and cases cited; Head v. 
 Goodwin, 37 Me. 181. It is equally 
 well settled that it is sufficient if the 
 seller has a potential interest in the 
 thing sold. But a mere possibility 
 or expectancy of acquiring property, 
 not coupled with any interest, does 
 not constitute a potential interest in 
 it within the meaning of this rule. 
 The seller must have a present inter- 
 est in the property of which the thing 
 sold is the product, growth or in- 
 crease. Having such interest, the 
 right to the thing sold, when it shall 
 come into existence, is a present 
 vested right, and the sale of it is 
 valid. Thus, a man may sell the wool 
 
 to grow upon his own sheep, but not 
 upon the sheep of another; or the 
 crops to grow upon his own land, but 
 not upon land in which he has no in- 
 terest. The same principles have 
 been applied by this court to the as- 
 signment of future wages or earn- 
 ings. In Mulhall v. Quinn, 1 Gray, 
 105, an assignment of future wages, 
 there being no contract of service, 
 was held invalid. In Hartley v. Tap- 
 ley, 2 Gray, 565, it was held that, it 
 a person is under a contract of serv- 
 ice, he may assign his future earn- 
 ings growing out of such contract. 
 The distinction between the cases is, 
 that in the former the future earn- 
 ings are a mere possibility, coupled 
 with no interest, while in the latter 
 the possibility of future earnings is 
 coupled with an interest, and the 
 right to them, though contingent 
 and liable to be defeated, is a vested 
 right. In the case at bar, the sellers, 
 at the time of the sale, had no interest 
 in the thing sold. There was a possi- 
 bility that they might catch halibut, 
 but it was a mere possibility and ex- 
 pectancy, coupled with no interest. 
 We are of opinion that they had no 
 actual or potential possession of or 
 interest in the fish; and that the sale 
 to the plaintiffs was void. Theplaint- 
 iffs rely upon Gardner v. Hoeg, 18 
 Pick. 168, and Tripp v. Brownell, 12 
 Gush. 37a In both of these cases it 
 18 
 
OH. I.J THE RELATION. [§ 227. 
 
 Natural increase. — The pledge of the property would carry 
 with it the natural increase of the pledged property. As, for 
 example, if the property were coupon bonds, the pledgee would 
 have the right to collect the coupons as they matured, and ap- 
 ply the amount upon the indebtedness; or if it were a mort- 
 gage or note, to collect the interest upon them as it accrued; 
 or if it were animals, the increase born during the time of 
 the possession of the pledgee would be held subject to the 
 pledge, and become a part of the pledged property ; the rule 
 being that " the increase follows its dam." 
 
 § 227. Exempt property may be pledged.^ By the statutes 
 of most of the states, if not of all, certain property is declared 
 to be exempt from execution, and the courts have been very 
 jealous of the rights given by reason of these exemptions; as,, 
 for example, the exempting of food and provisions sufficient to 
 keep the family for six months, the two cows, the ten sheep, 
 the team and vehicle for carrying on the business of the debtor 
 if engaged in business requiring such property. These exemp- 
 tions have been considered as humane and just. Of course 
 the property exempted differs in different states; nevertheless 
 the owner of this property is at liberty to dispose of it, and so 
 may pledge it for debts; some of the states requiring, how- 
 ever, where it is pledged- or mortgaged, that the instrument 
 creating the pledge or mortgage shall be signed by the wife if 
 the property is owned by a married man. 
 
 In Frost V. Shaw ' the plaintiff commenced suit, claiming that 
 certain property sold was exempted by law from execution. 
 The property had been pledged to secure the payment of a 
 promissory note; default had been made in the payment, judg- 
 ment was taken on the note, and the property levied upon and 
 sold. In the opinion Bartlett, J., says: " Although the humane 
 provisions of law exempting certain articles of necessity from 
 execution for the payment of debts may be entitled to a lib- 
 eral construction, the general principles which govern the right 
 
 was held that the lay or share in the cles would become due to the sea- 
 profits, which a seaman in a whaling man from the owners at the end of 
 voyage agreed to receive in lieu of the voyage. The court treated them 
 wages, was assignable. The assign- as cases of assignments of choses in 
 ment in each case was, not of any action." 
 part of the oil to be made, but of the 1 3 Ohio St. 370. 
 debt under which the shipping arti- 
 
 13 177 
 
§ 228.] PI.EDGE OE PAWN. [PAET II. 
 
 of private property are not to be overlooked. The owner of 
 the chattels exempted from execution is not divested of the 
 right of disposing of the property himself, either by sale or by 
 pledge, in security for the payment of his debts, and in case 
 of the pledge of a chattel mortgage the owner clearly waives 
 the benefit of the exemption so far as the incumbrance extends 
 or is operative." 
 
 § 228. Pensions and pay to officers and soldiers. — From 
 time immemorial it has been held by the courts, on the ground 
 of public policy, that emoluments of officers and soldiers, in- 
 cluding pensions to discharged soldiers, should be exempted 
 from pledge, or pawn, or sale on execution. 
 
 The English courts afford many examples of the exemption 
 of pay to officers, though in some cases they have held that by 
 procedure in chancery the money might be reached. In an 
 early case, McCarthy v. Gould^ the chancellor says: "It has 
 been decided both at law and in equity that the half-pay of an 
 ofiicer is not assignable or attachable, on principles of pubhc 
 policy. In the case of Stone v. Zidderdale, the reason given 
 was that he might be forthcoming when his services are re- 
 quired; but Lord Chief Baron McDonald, in his judgment, 
 makes a distinction between the case of a half-pay ofHcer and 
 of a pension granted to an individual. In this case the grant- 
 ing of the pension was to Lord Westmeath and his assigns. 
 He has assigned it to the defendant, who is in the receipt of it, 
 and payment is made to him on his receipt. It is not a chose 
 in action, but a grant, and may be reached by the process of 
 this court, and the proper mode of effecting this is by restrain- 
 ing the defendant from receiving his pension and directing the 
 sequestrators to receive the same at the treasury without serv- 
 ing any order on the lord of the treasury for that purpose." 
 
 In the United States, not only has it been considered against 
 public policy not to protect the pension certificates of the sol- 
 diers from sale, pledge, or execution, but the congress of the 
 tJnited States has passed a statute regulating the subject.^ 
 
 1 Ball & Beatty's Rep. 389; Lidder- in any pension which has been or 
 dale V. Montrose, 4 Term R. 248. may hereafter be granted, shall be 
 
 2R.S.U.S., sec. 4745. "Anypledge, void andof no effect; andanyperson 
 mortgage, sale, assignment, or trans- acting as attorney to receive and re- 
 fer of any right, claim, or interest oeipt for money for and in behalf of 
 
 178 
 
OH. I.] THE EELATION. [§ 229. 
 
 § 229. The debt or engagement.— It is essential to every 
 valid contract that it should be supported by a consideration; 
 so the contract creating this relation must be supported by a 
 consideration. The debt or agreement which the pledgor 
 seeks to secure, furnishes a consideration upon the part of the 
 pledgee to support the pledge. This consideration, in order to 
 support the contract, must of necessity be a valid one. It there- 
 fore follows that the debt or engagement that is sought to be 
 secured must be valid, and if it be an illegal debt, or the en- 
 gagement be illegal or against public policy or good morals, 
 the consideration for the pledge will fail. 
 
 In Taylor v. Chester^ the plaintiff deposited with defendant 
 the half of a oOZ. bank-note by way of pledge to secure the 
 payment of money due from the plaintiff to the defendant. 
 The debt was contracted for wine and suppers supplied to the 
 plaintiff by the defendant in a brothel kept by her, to be there 
 consumed in a debauch, the plaintiff having brought action to 
 recover the half note. Held, that the maxim in pari delioto 
 potior est conditio possidentis applied, and that the plaintiff 
 could not recover without showing the true character of the 
 deposit, and that being an illegal consideration, to which he 
 himself was a party, he was precluded from obtaining the as- 
 sistance of the law to recover it back. 
 
 It is also said in Chitty on Contracts, "Whenever the con- 
 tract which the parties seek to enforce, be it express or im- 
 plied, is expressly or by implication forbidden by the common 
 or the statute law, no court will lend its assistance to give it 
 
 any person entitled to a pension shall, tiflcate issued to the plaintiff, it is 
 before receiving such money, take no defense either legal or equitable 
 and subscribe an oath to be filed that the plaintiff left such certificate 
 with the pension agent, and by him with the defendants as security for 
 to be transmitted with the vouchers goods thereafter sold and delivered 
 now required by law, to the proper by them to him, relying on such se- 
 accounting officer of the treasury, ourity, and that there is a balance 
 that he has no interest in such due to them for such goods. Such 
 money by any pledge, mortgage, sale, facts do not create a lien in de- 
 assignment or transfer, and that he fendant's favor upon the certificate, 
 does not know or believe that the nor constitute a right to any relief 
 same has been so disposed of to any in this action." 
 
 person." Moffatt v. Van Doran, 4 IL. R. 4 Q.'B. 309; Chitty on Con- 
 
 Bosw. (N. Y.) 609. "In an action to tracts, 579 (6th ed.). 
 recover possession of a pension cer- 
 
 179 
 
§§ 230, 231.] PLEDGE OE PAWN. [PAET II. 
 
 effect. . . . And the test as to whether a demand con- 
 nected with an illegal transaction be capable of being enforced 
 at law is whether the plaintiff requires to rely on such trans- 
 action in order to establish his case." Such contracts are also 
 invalid and will be impeached on the ground of public policy. 
 
 In Story's Equity Jurisprudence the doctrine is laid down 
 that where parties are concerned in illegal agreements or 
 other transactions, whether they are mala prohlhita or viala 
 in se, courts of equity, following the rule of law as to partici- 
 pators in a common-law crime, will not interpose to grant any 
 relief, acting upon the well-known maxim "m pcm delicto- 
 j)otior est conditio dtfendentis et jjossidentisP^ It therefore fol- 
 lows that the rule of law is, that if the consideration of the 
 debt for which the property is pledged is an illegal or immoral 
 one, the courts will not lend their aid to secure such a debt, 
 but will adopt the rule so well settled in such cases, that the 
 law will leave the parties where it found them. And so 
 if a pledgor voluntarily delivers his property to secure such an 
 immoral or illegal debt, the courts will not assist him to re- 
 cover his property back, but will leave it as the parties left it; 
 therefore it follows that the pledgor could not recover the prop- 
 erty until he had paid the debt. 
 
 § 230. Pledge as collateral security, — Property is often 
 pledged as collateral security for the payment of promissory 
 notes or other negotiable paper, with full power to sell the 
 pledged property if default is made in paying the debt. The 
 pledge may be made to secure the payment or obligation of 
 the pledgor or any other person. The rights, duties and lia- 
 bilities of the parties to such a pledge will be discussed under 
 another head.^ 
 
 § 231. Contract should specify debt secured.— The 
 
 contract or agreement creating the pledge should specify the 
 particular debt that is to be secured. This is important, as it 
 
 1 Story's Eq. Juris. 298. In Biggs ^ Fosi, § 313. A liability for an- 
 
 V. Lawrence, 3 T. E. 454, it is held other upon a contract still in force 
 
 that the plaintiffs could not recover is a sufficient consideration for a 
 
 for goods sold to the defendants pledge, and the ratio of the oonsid- 
 
 where they knew that the goods eration to the value of the thing 
 
 were purchased to be smuggled and pledged is of no importance. Jewett 
 
 they had packed them for that pur- v. Warren, 12 Mass. 300. 
 pose. Clugas v. Penaluna, 4 T. R. 466. 
 
 180 
 
OH. I.J THK RELATION. [§ 282. 
 
 can only be determined by the agreement of the f)arties what 
 obligation the property is held to secure, and the pledged prop- 
 erty cannot be held by the pledgee as security for any other 
 debt than that intended to be secured and which is in the con- 
 tract by express terms or implication. If the indebtedness for 
 which the collateral is pledged is not specified, but the pledgor* 
 simply pledges the property generally for any indebtedness 
 then existing or to be created in the future, the property may 
 be held in such case as security generally for any and all in- 
 debtedness.^ 
 
 In Garton v. Union City Bank"^ the pledge consisted of a 
 promissory note of $1,000 given to the cashier or order of the 
 bank, to which was appended: "This note is to be used as col- 
 lateral security to A. Climie's notes." In that case the court 
 held that it was proper to introduce oral proof to show the 
 true consideration and the identity, nature and amount of de- 
 mands to which the note was collateral ; the court using this 
 language: "The purpose was to correctly apply the note to 
 the transactions indicated it was intended to cover, and confine 
 it to the very claims it purported to secure. . . . It indi- 
 cated on its face, or rather by the memorandum connected 
 with it, that it was to be carried out and enforced restrictively 
 as against Mrs. G-. (the maker), and with reference to particu- 
 lar bank demands against Cliraie, and the intent could not be 
 carried out and strict protection be accorded Mrs. G.'s rights 
 without showing the facts." 
 
 § 232. Pledge may be to secure past, present or future 
 indebtedness. — Property may be pledged to secure not only 
 a debt created at the time of making the pledge, but also an 
 
 1 Merchants' Nat. Bank v. Hall, 83 Holley, 10 Conn. 179. In San An- 
 N. Y. 388. In this case the force of tonio Nat. Bank v. Blocker, 77 Tex. 
 the language of the agreement which 73, it was held that where collateral 
 created the pledge was discussed, as was pledged generally for the debts 
 to whether or not it was for debts of a partnership, it could not be held 
 not in existence at the time of the for a private debt of one of the part- 
 pledge, but afterwards obtained by ners." Loyd v. Lynchburg Nat. 
 the pledgee; the court holding that Bank, 86 Va. 690; and, see cases col- 
 the extent of the pledge must de- lected and cited, 18 Am. & Eng. 
 pend upon the contract by which Ency. Law, 599, etc, 
 the property was pledged. Norton v. ^ 34 Mich. 379. 
 Plumb, 14 Conn. 513; Fairfield v. 
 
 181 
 
§ 233.] PLEDGE OE PAWN. [PAET II. 
 
 indebtedness past due, or an indebtedness to be created in the 
 future. If the debt, however, be a past-due debt, that is, a 
 debt that is known to be a pre-existing debt, it is subject to 
 some certain limitations. The pledgee or creditor might not, 
 under certain circumstances, be considered a 'bona fide holder 
 for value to the extent that he could hold the property thus 
 pledged as security for the payment of a pre-existing debt 
 against the true owner from whom it had been obtained by 
 fraud, for the reason that he parted with no consideration in 
 the obtaining of the pledge.' This is more fully discussed in 
 another section.^ 
 
 § 233. The pledgor may pledge his property to secure 
 
 the debt of another. — The pledge may be by the pledgor to 
 secure another's debt or obligation as well as his own. In such 
 case the pledge is the same as surety for a debt, and the pledgor 
 would be entitled to all the rights and limitations that belonged 
 to a surety for a debt or obligation. And so any change in the 
 contract of suretyship without his consent or knowledge, that 
 is, such a change as would discharge a surety, would release and 
 discharge the pledged property so held as collateral security.' 
 
 If, however, the contract of pledge was such that the court 
 might hold that it would be inclusive of extensions of time of 
 
 1 A pledge of stock by a stranger taking that his property should stand 
 
 to secure a debt past due, without any as security for its performance." 
 
 promise on the part of the pledgee Dodgson v. Henderson, 113 111. 360; 
 
 to forbear, is without consideration. Davis v. People, 1 Gilm. 409; Waters 
 
 Huldeman v. German Security Bank v. Simpson, 2 id. 570; Myers v. Bank, 
 
 (Ky.),44S. W. 388. Where a chattel is 78 id. 357; Danforth v. Sample, 73id. 
 
 pledged for a pre-existing debt, the 170: Merchants' Nat. Bank v. Hall, 
 
 pledgee is not a holder for value to 83 N. Y. 388. See cases cited in brief 
 
 the extent that it will enable him to^ for appellant, p. 340. The court at 
 
 retain it against the true owner from page 348 say: "The cases cited on 
 
 whom it has been obtamed by fraud, the secoad question are based upon a 
 
 as he could do if he were a true principle not denied, that a gift of 
 
 holder for value. Story on Bailments, time to a principal debtor discharges 
 
 sec. 300; Schouler on Bailments, sec. the surety; but it will be found that 
 
 178. in them new arrangements, not con- 
 
 2 Post, p. — . templated at the time of entering 
 
 3 In Price v. Dime Savings Bank, into the guaranties by any of the 
 124 111. 817, the court held "that parties, are introduced; and thus the 
 the change in the terms of the orig- state of circumstances altered with- 
 inal contract without the consent of out the contemplation and without 
 A. was sufficient to release his under- the consent of one of the parties. 
 
 183 
 
CH. i.'] THE RELATION. [§§ 234, 235. 
 
 payment, then in such case such extensions would not dis- 
 charge or release the pledge.^ 
 
 § 234. As to holding property for former or another 
 
 debt. — The mere fact that the pledgor is indebted to the 
 pledgee on a former or other indebtedness will not authorize 
 the pledgee to retain the pledged property after the debt or 
 obligation for which it is pledged is discharged, unless there 
 is some agreement from w^hich such an intention of thie partes 
 can be drawn.^ The pledge may be for one or many debts, 
 but the extent of the pledge, the debt or obligation it 'is 
 pledged to secure, must be determined by the agreement. In 
 lie Mosser^s Estate ' it was held, where a judgment was given 
 as collateral security for a note which was afterwards paid, a 
 parol agreement between the creditor and the agent of the 
 debtor to continue such judgment as security for certain other 
 notes of the debtor was valid as against subsequent judgment 
 creditors of such debtor. 
 
 § 235. Continuing security — Future transactions. — 
 
 By the agreement of the parties the pledge is often made to 
 cover future transactions, such as renewal of notes, extension of 
 time of payment, and even new and additional indebtedness. 
 
 1 White's Bank v. Myles, 73 N. Y the purposes for which it may be 
 335; First Nat. Bank of Omaha v. held — and that they do it is not 
 Goodman et aL (Neb.), 79 N. W. 1063. open to question, — I see no reason 
 Where policies were pledged by the why such parol agreement may not 
 wife to secure a claim for which con- be entered into on behalf of either by 
 tinuing security had been given an agent acting under parol author- 
 granting extension of time to the ity." In Philler v. Jewett, 166 Pa. St. 
 debtor, the pledge would not be dis- 456, it was held that securities depos- 
 charged. ited by a bank belonging to a olear- 
 
 2 Jones on Pledges, sec. 355; Bald- ing-house association with the clear- 
 win V. Bradley, 69 111. 32; Jarvis v. ing-house committee, and pledged 
 Rogers, 15 Mass. 389; Mahoney v. Ca- according to the clearing-house reg- 
 perton, 15 CaL 314; Buckley v. Gar- ulations adopted by the associative 
 rett, 60 Pa. St. 333. In determining banks, first for payment of its daily 
 the effect to be given to an absolute balances, and next as security for 
 assignment of securities, the whole other indebtedness due to members 
 transaction between the parties must of the association, will be held after 
 be taken into account. Boardman payment of daily balances to meet a 
 V. Holmes. 124 Mass. 438; Hilton v. deficiency of other securities given 
 Sims, 45 Ga. 565. by it to the clearing-house commit- 
 
 8161 Pa. St. 469. "If it be compe- tee to provide for payment of clear- 
 tent for the parties to a judgment by ing-house certificates issued to it and 
 their own parol agreement to change in maintaining its credit. 
 
 183 
 
§ 236.] PLEDGE OE PAWN. [PAET II. 
 
 It is a matter of frequent occurrence that banks take from 
 their customers bank notes and mortgages with the under- 
 standing that they shall be held as collateral security to cover 
 all indebtedness, renewals or advances made to the pledgor; 
 this is generally done by entering into a written contract, but 
 it may be by parol and delivery of the property pledged. 
 These pledges may be said to be in the nature of continuing 
 securities and the courts will enforce such transactions. Such 
 was the security in question in Merchants' Nat. Bank v. Rall^ 
 where certain stocks were assigned to the plaintiff as security 
 for payment of any demands plaintiff might have' from time 
 to time against assignor's husband, who at the time was largely 
 indebted to the plaintiff. The court held that the assignment 
 by its terms included and secured all demands had and held 
 by the plaintiff against the husband of the assignor after its 
 execution, as well as those existing at that time, and that the 
 circumstances disclosed this to have been the intent of the 
 parties; also that .the assignment was a continuing security, 
 and that an extension of time by renewals, in the ordinary 
 course of business, granted by the plaintiff for payment of any 
 of the debts, did not discharge the lien upon the stock. Such 
 a pledge is as limitless as it well could be. . . . As was 
 said by the court, "it specifies no kind of demand, no amount, 
 no length of time of any indebtedness for which the stock 
 might be liable. The pledgor, however, of such a pledge 
 could at any time by a notice to the pledgee limit the pledge, 
 but until notice of such limitation was given it would be held 
 to be a continuing security." ^ 
 
 236. When several debts — Application of payment. 
 
 The rule of law as to the application of payments where there 
 are several distinct debts secured by a pledge of property is 
 the same as exists in other cases; if the pledgor makes no ap- 
 plication of the payment to any particular debt at the time of 
 making it, the pledgee may apply such payment to whichever 
 
 1 83 N. Y. 338. holder of paper received as pledged 
 
 ^ Agawam Bank v. Strever, 18 N. Y. security holds it subject to equities 
 
 502; Douglas v. Reynolds, 7 Pet. (U. S.) existing at the time of the transfer, 
 
 ,118; McClure v. Roman, 52 Pa. St. 458; but not to those arising subsequent 
 
 Texas Banking Co. v. Turnley, 61 Tex. thereto. Richards v. Rice, 9 Baxt 
 
 365. In Tennessee it was held that the (Tenn.) 390, 40 Am. Rep. 
 
 184 
 
■en. I.J THE RELATION. [§ 236. 
 
 of the secured debts he pleases, and if the pledgee is compelled 
 to foreclose the pledge, he may, in the absence of any stipula- 
 tion in the contract or pledge, so apply the receipts to the 
 •debts or obligations so secured. If some of the debts are also 
 secured by collaterals pledged by other persons than the debtor, 
 he still has the right to apply the amount received from the 
 foreclosure to those debts that are not thus secured. And it 
 has been held that the sureties for the secured debt cannot be 
 subrogated to the rights of the pledgee in the proceeds of the 
 foreclosure, nor are they entitled to have the fund apportioned 
 ■or in any way applied to all of the debts secured by the pledge. 
 On the other hand, the pledgee may make such application as 
 Avill be for his best interest, if he is not violating any stipula- 
 tion in the contract of pledge. In order to obtain the privi- 
 lege of being subrogated to the rights and privileges of the 
 pledgee, such pledgors who have furnished the further secu- 
 rity by pledge must first pay all of the debts the property 
 stands pledged for; and in that case they may be substituted 
 and stand in the place of the pledgee creditor. But if only one 
 ■or more of the debts are paid and the property is pledged for 
 them and other debts, the pledgee will hold the property as se- 
 curity for any other unpaid debts. In Wilcox v. Fair Haven 
 Bank^ the court say: "It is, however, undoubtedly an estab- 
 lished rule of equity that a surety who has paid the debt of his 
 principal, either voluntarily or by compulsion, is entitled for 
 his indemnity to any property pledged or collateral security 
 given therefor by the principal to the creditor. But as this 
 rule is founded on the principles of reason and justice and not 
 upon any contract or stipulation to that efifect between the par- 
 ties, it follows as a necessary consequence that a surety is not 
 to be substituted in the place of a creditor, unless from the cir- 
 cumstances of the case it is shown that it is just and reasonable 
 that it should be. Hence it is obvious that, in order to become 
 entitled to such substitution, he must first pay the whole of the 
 debt or debts for which the property is mortgaged, or the col- 
 lateral security is given, to the creditor; for it would be mani- 
 festly unjust and a plain violation of his rights to compel him 
 to relinquish any portion of the property before the obliga- 
 tion, for the performance of which it was conveyed to him 
 
 1 7 Allen (Mass.), 270. 
 185 
 
§§ 237, 237a.] pledge ob pawn. [paet ii. 
 
 as security, had been fully kept and complied with. Such pre- 
 vious payment by a surety is alike essential where there is only 
 one debt and one surety, and where there are many debts, all 
 of which are equally protected and secured by the property 
 mortgaged, and many several sureties of the several debts; 
 for the chief and primary object of a pledge or mortgage to a 
 creditor is his benefit, protection and advantage in reference 
 to each and all of the several debts which it was made or given 
 to secure, and until this object is iully accomplished no surety 
 can justly or lawfully interfere to disturb him in the possession 
 of the property pledged, or hinder him from appropriating the 
 proceeds of it toward payment of any such debt which he can- 
 not otherwise collect or render available." 
 
 §237. A pledge which secures a debt bearing interest 
 
 secures the interest as well as the debt. — This follows as a 
 matter of course. It would be presumed from the very fact 
 that the debt was an interest-bearing debt that it was the in- 
 tention of the pledgor to secure as well the payment of the 
 interest as the payment of the principal.' The pledge is con- 
 strued to be for the whole debt. By implication it will be un- 
 derstood that the pledge is for the payment of the whole debt 
 or engagement, unless the contract of pledge stipulates other- 
 wise, and so the payment of a part of the debt will not release 
 a part of the pledged property, but the whole of the property 
 may be held to secure the unpaid amount. 
 
 § 237a. Delivery of the property by the pledgor — Accept- 
 ance and continued possession of the property by the pledgee. 
 These two essentials are so closely connected and so depend- 
 ent upon each other, that it is thought advisable to discuss 
 them together. The delivering of the property pledged by 
 the pledgor to the pledgee, and the acceptance and continued 
 possession of the property by the pledgee, is that which gives 
 to the world notice of the pledgee's interest and the extent of 
 his rights to the property in his possession. These stand in the 
 place and stead of the recording of a mortgage, or the filing 
 of a lien, as it is a well-understood principle of law that posses- 
 sion of property is notice to all the world of all the rights and 
 
 1 Jones on Pledges, sec. 363; Board- may however be made to secure only 
 man v. Holmes, 134 Mass. 488; Bald- a part of the debt. Fridley v. Bowen, 
 win V. Bradley, 69 III. 33. A pledge 103 111. 638, 637. 
 
 186 
 
OH. I.J THE KELATIOU. [§ 238. 
 
 interests of the possessor in the property possessed. It has been 
 noticed that in the pledge or pawn there is ilo recording of 
 the same in a public record kept in some public office ; there is 
 no iiling of notice of the lien which the pledgee has upon the 
 property. In the place of this, and as effectual as all this would 
 be, is the fact that the property has been delivered into the 
 possession of the pledgee and is held by him as security for the 
 indebtedness. Other creditors of the pledgee may not actually 
 know the extent of the claim, or the conditions of the pledge, 
 but the law holds them, because of this delivery and possession, 
 to a full knowledge of all that pertains to the holding of the 
 pledged property by the pledgee. 
 
 § 238. If property not delivered —Pledge, when good. — As 
 between the parties to a pledge, a contract to pledge would be 
 binding even if the property had not been delivered, and such 
 a contract resting upon a valuable consideration could be en- 
 forced ; for the reason, among others, that equity would con- 
 sider that as done which ought to be done. Or would apply 
 that other maxim, "Equity considers substance rather than 
 form." But before the doc'rine of equitable pledge can be ap- 
 plied there must be a contract showing that the debtor de- 
 signed to subject the particular property to the payment of 
 the debt.i But as against subsequent purchasers in good faith 
 or the creditors of the pledgor, as we have already seen, deliv- 
 ery is an essential ; for, as to such persons, the pledgee could 
 not enforce the pledged contract; there would be no notice of 
 its existence, and the pledgee would not be held to be a hona 
 fide holder of the property.'' 
 
 • Hook V. Ayers (C. C. A.), 80 Fed. Casey v. Caveroc it was held: "That 
 
 978. possession is of the essence of a pledge, 
 
 2 A pledge cannot be created as se- and without it no privilege can exist 
 
 ourity for a debt without a transfer as against third parties; that this 
 
 of the thing pledged to the pledgee doctrine is in accordance with both 
 
 or his agent. Textor v. Orr, 86 Md. the common and the civil law." It 
 
 393. An executory contract of the was further held " that the thing 
 
 pledge may be good between the par- pledged may be in the temporary 
 
 ties. Kaiser v. Topping, 72 111. 226; possession of the pledgor as special 
 
 Tuttle V. Robinson, 78 111. 332. " It bailee without defeating the legal 
 
 will not be enforced to the injury of possession of the pledgee; but where 
 
 other creditors." City Fire Ins. Co. it has never been out of the pledgor's 
 
 V. Olmtead, 33 Conn. 476; Casey v. actual possession, and has always 
 
 Caveroc, 96 U. S. 467. In the case of been subject to his disposal by way 
 
 187 
 
'§§ 239, 2i0.] PLEDGE OE PAWN. [PAET II. 
 
 § 'J39. The delivery. — The delivery should be of such a 
 nature that by it the pledgor relinquishes all control of the 
 pledged property to the pledgee, and by it the pledgee obtains 
 the absolute and unequivocal control of it. In Mahony v. 
 Hah ' it was held : " In the case of a pledge, the pledgee must 
 take possession, and to retain it he must retain possession; an 
 actual delivery of property capable of personal possession, and 
 a continued change of possession is essential." "In case of a 
 pledge the requirement of possession in the pledgee is an inex- 
 orable rule of law, adopted to prevent fraud and deception. 
 There must be an actual delivery of the chattels as distin- 
 guished from a mere pretense, and the change of possession 
 must be continuing, not formal, but substantial." The manner 
 of effecting the required delivery, of course, depends upon the 
 nature of the property. If the property is capable of actual 
 manual delivery, it should be so delivered; if not, then the best 
 delivery the property will admit of should be made. 
 
 §210. Constructive or symbolical delivery. — If the prop- 
 erty and the circumstances Avill admit of no better delivery, 
 then a constructive or symbolical delivery will be sufficient. 
 As, for example, if the property be stored in a warehouse with 
 proper notice to the warehouseman, or if held by a contract in 
 the hands of a third person, notice to the bolder of the prop- 
 erty has been held to be a sufficient delivery. 
 
 In Whitaker v. Suinncr'^ the court say: "It seems now well 
 settled that when personal property is under a pledge or lien, 
 
 of collection, sale, substitution or ex- George v. Pierce, 55 Pac. 775; George 
 change, no pledge or privilege exists v. Matorn, 56 Pac. 53. As against 
 ^s against third persons." Until the creditors, a pledge of the corporate 
 delivery of the pledged property the stock must be accompanied by de- 
 transaction is simply an executory livery and a continued change of pos- 
 contract and the pledgee acquires no session. Delivery, momentary pos- 
 right of property in the thing. Story session and return is insufficient, 
 on Bailments, sec. 397; First Nat. McFail v. Buckeye, etc., 133 Cal. 468, 
 Bank v. Nelson, 38 Ga. 391; Wolcott 55 Pac. 253; Moors v. Reading, 167 
 V. Keith, 33 N. H. 196; Williams v. Mass. 332. jBono ^des does not avail 
 Gillespie, 30 W. Va. 586; Nesbitt v. the pledgee in absence of delivery 
 Macon Bank, 13 Fed. 686. A pledge and possession. Geilfus v. Corrigan, 
 of personal property is Invalid as 95 Wis. 651, 37 L. R. A. 166. 
 against the pledgor's creditors where i 66 Minn. 463, 69 N. W. 334; Casey 
 no delivery is made, and no actual, v. Caveroc, 90 D". S. 467. 
 open, unequivocal possession taken. ^ 20 Pick. (Mass.) 399. 
 
 188 
 
CH. I.J THE EELATION. [§ 240.. 
 
 whether created by operation of law or by the act of the owner, 
 the general property remains in the owner, and that he may 
 transfer it by a proper contract and upon a good consideration, 
 subject only to the lien. And in such case, as the actual cus- 
 tody and possession of the goods for the time being is in the 
 hands of the party having the lien, it follows that a construc- 
 tive or symbolical delivery is sufficient to pass the property. 
 An order by the vendor upon the keeper, or, if the contract of 
 sale or conveyance be in writing, proper and satisfactory no- 
 tice of the conveyance by the vendee to the holder, constitutes 
 such constructive delivery. Where goods are lying in a ware- 
 house, although subject to a lien for keeping, notice to the 
 warehouse keeper, where all the other requisites of a sale are 
 proved, is equivalent to a delivery." 
 
 In Hathaway v. llaynes ' it was held " that the assignment in 
 blank of a bill of lading to a bank that had by reason of it dis- 
 counted the draft, conveyed an interest in the property to the 
 bank ; and, whether that interest was as security only that the 
 bill should be accepted, or that it should be both accepted and 
 paid, it was immaterial. That the claimant bank, by the in- 
 dorsement of the bill of lading, was entitled to hold it and 
 the property described in it." So, where the goods or pledged 
 property is incapable of being delivered by handing the prop- 
 erty from one to another, a symbolical delivery will be suffi- 
 cient to create the pledge; as, for example, if the goods are 
 stored in a warehouse, by delivering the key of the building 
 for the purpose of giving to the pledgee control of the prop- 
 erty, or by delivering the evidence of ownership or possession 
 with an intention of turning over the control of the property 
 to the pledgee.^ It may be said in the light of all the author- 
 
 1 124 Mass. 311. itors of the pledgor, and it appeared 
 
 2 Sumner v. Hamlet, 12 Pick. 76. that said receipt did not run to- 
 
 In the case of Whitney v. Tibbitts, bearer, but stated that the flour was 
 
 17 Wis. 369, the question was whether, "deliverable only on return of the 
 
 on a pledge of flour stored in a ware- receipt," and held that the plaintiff 
 
 house in Milwaukee, a delivery, by was entitled to show that, by a gen- 
 
 the pledgor, of the warehouse re- eral custom in Milwaukee, flour in 
 
 ceipt, without indorsement, consti- store was transferred by a delivery 
 
 tuted a sufficient delivery of the of such receipts without indorse- 
 
 property to sustain the pledge as ment. The court say: "It seems to 
 
 against subsequent attaching cred- me to present a stronger case of de- 
 
 189 
 
§ 240.] 
 
 PLEDGE OB PAWN. 
 
 [PAET II. 
 
 ities, that the test of delivery is whether or not the property 
 has been placed in the possession and control of the pledgee. 
 
 livery than some that are usually ger, the vendor, by delivering the 
 referred to as suflScient. Take, for 
 example, the one of a delivery of the 
 key of the vearehouse vrhere the 
 property is stored. In that case 
 the vendor, owning the warehouse, 
 might, notwithstanding the delivery 
 of the key, still keep possession of 
 his warehouse and resume control of 
 the property. But where the prop- 
 erty is in the warehouse of a stran- 
 
 receipt, divests himself of all the 
 means of controlling or retaining 
 the property, and gives them to the 
 vendee quite as effectually as would 
 the possession of the key. The ma- 
 terial thing is, that the vendor de- 
 livers to the vendee that which en- 
 ables the latter in fact to take and 
 control the property." 
 
 190 
 
CHAPTEE 11. 
 
 PLEDGING NEGOTIABLE PAPER. 
 
 § 241. Negotiable paper. 
 
 243. An equitable assignment. 
 243. Pledgee holder for value. 
 
 § 344. Whether a pre-existing debt 
 a sufficient consideration to 
 constitute a pledgee a holder 
 for value. 
 
 §241. Negotiable paper. — Promissory notes, bills of ex- 
 change and other negotiable paper are often the subject of a 
 pledge or pawn, and delivery is essential in such cases. The 
 control of the property must be in the pledgee, as in other 
 cases. Just how can this property be delivered ? Must it be 
 by indorsement or by written assignment? It is a general 
 rule that whatever delivery of property would be necessary in 
 case of sale would be necessary in order to create a pledge; 
 and it no doubt is the general rule that to pass legal title to 
 such like property, as notes and bills, and negotiable paper not 
 made payable to bearer, it would be necessary to indorse the 
 paper or make a written assignment where indorsement or as- 
 signment would be necessary in case of sale. That is to say, 
 if the negotiable instrument was one payable to order, as a 
 general rule it would be necessary to create a pledge of it to 
 deliver the instrument, together with the indorsement upon 
 it, which would transfer the property in it. If, however, the 
 instrument is one payable to bearer, or if it be indorsed in 
 blank, then mere delivery alone with the intention of pledging 
 it would be sufficient. The delivery of negotiable instruments 
 unindorsed, where indorsement is required as a pledge, vests 
 in the pledgee an equitable interest; the pledgee in such cases 
 takes the property subject to any prior equities of third per- 
 sons as against the pledgor.^ But the general rule seems to be 
 that it is necessary that the negotiable instrument requiring 
 
 1 Dickey v. Pocomoke City Nat. without a written assignment, is a 
 Bank, 89 Md. 280, 43 Atl. 88. Held, valid pledge and will be upheld in 
 that the mere delivery of a mort- equity. A written assignment is not 
 gage, and the bills thereby secured, necessary, but the mere delivery of 
 
 191 
 
§ ^ii.] PLEDGE OE PAWN. [PAET 11, 
 
 indorsement to make a valid transfer must be so indorsed and 
 delivered in order to pledge it as collateral security. Some of 
 the courts have held that such paper may be pledged by mere 
 delivery and acceptance. In Louisiana delivery of negotiable 
 securities unindorsed seems to be sufficient to constitute a valid 
 pledge. This, however, depends more or less upon a statute 
 of the state. ^ In Georgia it was held, in Smith v. Jennings,^ 
 that the pledgee stood in the place of the pledgor, and was 
 protected against the pledgor whether a subsequent creditor 
 creditor had notice of this equity or not. 
 
 § 242. An equitable assignment. — While it is necessary to 
 a pledge of the legal title, in negotiable paper that only 
 passes by indorsement or assignment, to indorse or assign it to 
 the pledgee, it is no doubt true that such paper may by the 
 payee be pledged by mere delivery to the pledgee, to the ex- 
 tent that the pledge Avill be good as between the parties; the 
 pledge m such case operating as an equitable assignment to 
 the pledgee. At the common law the pledgee, under such cir- 
 cumstances, could maintain a suit in the name of the pledgor, 
 or person having the 'legal title, and now by reason of stat- 
 utes in many of the states, in his own name. In Tan lii]}^' 
 V. Baldwin^ the plaintiff rented certain premises to one Iloman, 
 
 a bond and mortgage as security is a ren, 3-t Me. 89. the property in nego 
 
 valid pledge and will be so treated, tiable notes may pass by delivery 
 
 Crane v. Gough, 4 Md. 334; Kamena without indoi'sement. See also Bil- 
 
 V. Huelbig, 23 N. J. Eq. 88; Galway lings v. Jane, 11 Barb. (N. Y.) 620. A 
 
 V. Fullerton, 17 N. J. Eq. 389; Pres- negotiable note may be assigned by 
 
 cott V. Hull, 17 Johns. 284. simple delivery, but the assignment 
 
 1 Casey v. Schneider, 96 U. S. 496. must be made by the rightful owner 
 
 2 74 Ga. 551. or under his authority. Davis v. 
 3 19 Hun (N. Y.), 344; affirmed. 85 Lane, 8 N". H. 234. In Thompson v, 
 
 N. Y. 61K Delivery passes the equi- Onley, 96 N. C. 9, it was held "that 
 table title to a negotiable instru- it was not necessary to give title to 
 ment payable to order, and the a note or bond to indorse it or assign 
 holder may maintain an action it, and that the question of owner- 
 thereon in the name of the payee, or ship was a matter of fact for the juiy 
 person holding the legal title by stat- to decide." That the equitable title 
 ute. However, in most of the states passes by mere delivery, see Free- 
 the person holding such equitable man %, Perry, 22 Conn. 617; Miles v. 
 title may sue in his own name be- Reinger, 39 Ohio St. 499; Foreman t. 
 cause he is the real party in interest- Beckwith, 73 Ind. 515; Beard v. De- 
 but these statutes do not confer upon dolph, 29 Wis. 136. In the case of 
 him the right of a bona fide holder Bank of Chadron v. Anderson, 48 Pao. 
 by indorsement. In Coombs v. War- 197, it was held that "simple deliv- 
 
 192 
 
on. II.J PLEDGING NEGOTIABLE PAPER. [§ 243. 
 
 who, by the express direction of his, the lessee's, wife, delivered 
 to an agent of the plaintiff a note made by the defendant, 
 Baldwin, to her order, to secure the payment of the rent to 
 become due under the lease. The note was not indorsed by 
 the wife at the time of its delivery. The rent not having been 
 paid, and the wife having refused to indorse the note, the 
 plaintiff brought this action to recover the amount thereof. 
 Held, " that the pledge of the note operated as an equitable 
 assignment thereof to the plaintiff, and that he could sue 
 thereon in his own name." The court say: " Such delivery of 
 the note constituted a formal pledge thereof for the purposes 
 mentioned, and vested the equitable title thereto in the plaint- 
 iff notwithstanding the note was not indorsed by the payee." 
 § 243. Pledgee holder for value. — A rule analogous to that 
 which obtains in the sale of negotiable paper, as to bona fide 
 holders, also obtains in the case of pledging such paper ; and 
 it may be said to be a general rule that where a bona fide 
 pledgee of negotiable instruments receives them in due course 
 of business, and before maturity, for a valuable consideration 
 without notice of any equities, he becomes a pledgee for value, 
 and will be protected against all equities which may arise be- 
 tween the original parties, and entitled to all the protection 
 that can be claimed by a purchaser of the paper under such 
 like circumstances.^ If, however, there is that upon the face 
 of the instrument which is pledged which would put a rea- 
 sonably prudent man upon inquiry, it is the duty of the pledgee 
 to inquire, and if he fails to make inquiry he will be held to 
 have had notice of whatever would have been discovered had 
 he made the investigation, and he cannot under such circum- 
 
 ery of a promissory Bote without In- 84 N. Y. 190. New Hampshire seems 
 dorsement vests a contingent equi- to stand alone in opposing the doc- 
 table interest." trine that a pledgee, under ciroum- 
 1 Warner v. Fourth Nat. Bank, 115 stances mentioned in the text, is a 
 N. Y. 251 ; Gates v. National Bank, 100 hona fide holder. The holding, how- 
 U. S. 239; Nelson v. Eaton, 2(5 N. Y. ever, in this state in some of the 
 410; Allan v. King, 4 McLean (U. S.), earlier reports has latterly been more 
 128; Hempner v. Comer, 73 Tex. 196; or less limited. See Jenness v. Bean, 
 Worcester Nat. Bank v. Cheeney, 8Y 10 N. H. 266; Williams v. Little, 11 
 111. 602; Kinney V. Kruse,28 Wis. 183; N. H. 66; Goss v. Emerson. 23 N. a 
 Bealle v. Southern Bank, 57 Ga. 274; 38; Tucker v. New Hampshire Sav- 
 Exchange Bank v. Butner, 60 Ga. ings Bank, 58 N. H. 83; Memphis 
 654; Dunoomb v. New York R. Co., Bethel v. Bank, 101 Tenn. 180. 
 13 193 
 
§ 244.J PLEDGE OK PAWN. [PAET II. 
 
 stances claim the privileges of a lonafide holder because he 
 had no notice of the equities. The rule that he has actual no- 
 tice of all the facts that an investigation would have discovered 
 obtains.' 
 
 § 244. Whether a pre-existing debt a sufficient considera- 
 tion to constitute a pledgee a holder for value. — As has al- 
 ready been stated, a pledge of negotiable paper may be made 
 to secure payment of a pre-existing debt; and as between 
 parties, there is no doubt that such a debt is a valid considera- 
 tion, and will support such a pledge; but whether it is such a 
 consideration as will constitute a pledgee a holder for value if 
 pledged before maturit}' and without notice of any infirmities, 
 whether under such circumstances the pledgee will be pro- 
 tected in his holding against prior equities, is the question we 
 are to consider. The solution of the whole matter, as it seems 
 to us, rests upon the question of consideration. Did the pledgee 
 pay anything, or do, or forbear to do, anything? "Was there 
 any benefit derived from the transaction by the pledgor? As 
 throwing some light upon the subject, let us consider the nat- 
 ure of a pre-existing debt. It means a debt already existing 
 at the time of the executing of the pledge; not an indebted- 
 ness in any way connected with the transaction or the pledg- 
 ing. But it may be that certain benefits are derived from the 
 contract by the pledgor; as, for example, if the antecedent 
 debt is due and the pledgee is in a situation where he might 
 commence suit upon the indebtedness against the pledgor, and 
 the pledgor under such circumstances should pledge to him the 
 negotiable paper, and by means of the pledge should obtain 
 further time for the payment of the antecedent debt; or, if the 
 pledgee released security for the payment of his debt, or the 
 pledgor had in any way bettered his condition, in such case 
 there would be no doubt but that the contract would rest upon 
 a valuable consideration, and if the negotiable paper was 
 pledged before maturity, under such circumstances the pledgee 
 would be said to be a holder for value; and if the pledgee 
 should, by reason of the contract, become the owner of the 
 negotiable paper, or if by reason of the contract it should be 
 necessary for him to bring an action upon the negotiable paper 
 thus pledged, the courts would hold that he held the paper free 
 
 1 First Nat. Bank v. Broadway Nat. Bank, 47 N. Y. Sup. 880. 
 194 
 
CH. II.J PLEDGING NEGOTIABLE PAPER. [§ '24:4:. 
 
 from infirmities, and that he was a holder for value and that 
 it was not subject to prior equities. But if, on the contrary, 
 there was no such benefit obtained by the pledgor by reason 
 of the pledge, if the pledgee simply received the security for 
 the antecedent debt, giving nothing in return, if, in other words, 
 there was no moving consideration for the creating of the 
 pledge relation, no benefit to the pledgor, in such case the 
 courts have not been entirely harmonious in their holdings. 
 Very many of the state courts, notably New York, Michigan, 
 and Ohio, have held that, there being no consideration mov- 
 ing between the parties, the pledgee could not be held to 
 be a holder for value; the theory being, as we have already 
 said, that the pledgee gives no consideration for the pledge; 
 he surrenders nothing; is simply made better by reason of the 
 security. He is not like a hona fide purchaser of negotiable 
 paper who pays out his money, or gives up some valuable piece 
 of property or security ; on the contrary the pledgee pays noth- 
 ing, does nothing; he simply receives a benefit; and so many 
 of the courts have held that such a pledgee should acquire no 
 more title than the pledgor had to the property pledged ; that 
 is, if the property had, for example, been fraudulently acquired 
 by the pledgor, such a pledgee could not hold it against the 
 rightful owner. In short, that he holds it subject to prior 
 equities, having no better title than the pledgor had. 
 
 It would no doubt be profitable to discuss some of the many 
 cases that have been decided in the different courts touching 
 this question ; but we can only notice a few of them and cite 
 others. 
 
 In Phcenix Ins. Co. v. Church ^ this question was considered. 
 In that case the defense was that the note was accommodation 
 paper made for a specific purpose ; that it was diverted by the 
 payee, and was received by the plaintiff on account of a pre- 
 existing debt only, and the court found in substance that the 
 note was executed by defendant without consideration for the 
 accommodation of the payee, and for the specific purpose of 
 taking up therewith a prior accommodation note made by the 
 defendant; so it will be seen that there would have been a 
 
 181 N. Y. 218; Day v. Coiidington, 438; Lawrence v. Clark, 36 N'. Y. 128; 
 5 Johns. Ch. 54; Comstook V. Hier, 73 Rosa v. Brotherson, 10 "Wend. 85; 
 N. Y. 269; Moore v. Eider, 65 N. Y. Weaver v. Harden, 49 N. Y. 286. 
 
 195 
 
§ 344. J PLEDGE OE PAWN. [PAET II, 
 
 complete defense to this note as between the maker and the 
 payee. In the brief for appellant very many authorities are cited 
 to the effect that, the note having been diverted to the injury 
 of the maker and the plaintiff haying paid nothing for it, it 
 was not commercial paper and was subject to all the equities 
 existing against dishonored paper. The court in its opinion 
 say : " It is a settled law of this state that prior equities of 
 antecedent parties to negotiable paper, transferred in fraud of 
 their rights, will prevail against an indorsee who has received 
 it merely in nominal payment of a precedent debt, there being 
 no evidence of an intention to receive the paper in absolute 
 discharge and satisfaction beyond Avhat may be inferred from 
 the ordinary transaction of accepting or receiving it in pay- 
 ment or crediting it on account. The law regards the payment 
 under such circumstances as conditional only, and the right of 
 the creditor to proceed upon the original indebtedness after the 
 maturity is unimpaired." 
 
 The Massachusetts courts have followed this doctrine. In 
 Sjpaulding v. Kendrick ' the court say : " The law of the case is 
 settled by numerous decisions. If a thief gave stolen money 
 or negotiable securities, before their maturity, in payment 
 of his debt, or as security for it, to one who in good faith re- 
 ceives the money or security as belonging to him, the creditor 
 can hold the property as against the true owner. As between 
 the payer and the payee there is no mistake which affects the 
 validity of the transaction. One receiving money or negotia- 
 ble securities in payment of or as security for an existing debt 
 is not bound to inquire where the money or securities were ob- 
 tained. It is better that money or a negotiable security, pass- 
 ing from hand to hand to one who rightly receives it for a 
 valuable consideration, should carry on its face its own creden- 
 tials.' It has often been decided in this commonwealth that a 
 pre-existing debt is a valuable consideration for a payment 
 made or a security given on account of it." ' 
 
 1 173 Mass. 71. Jaques v. Marquand, 6 Cowen, 497; 
 
 2 Mercliants' Ins. Co. v. Abbott, 131 Duulap v. Limes, 49 Iowa, 177. See 
 Mass. 397; Lime Rook Bank V. Plump- also Mason v. Waite, 17 Mass. 560, 
 ton, 17 Pick. 159; Greenfield School 563; Worcester Co. Bank v. Dor- 
 District V. First Nat. Bank. 103 Mass. Chester & Milton Bank, 10 Cush. 438. 
 174 ; Thatcher v. Pray, 113 Mass. 391 ; 3 Blanchard v. Stevens, 3 Cush. 162; 
 
 196 
 
OH. II.] PLEDGING NEGOTIABLE PAPER. [§ 24i. 
 
 In Qoodman v. Conhling ^ it was held " that where some se- 
 curity for the payment of the pre-existing debt was surrendered 
 in consideration of a new note given in security for the pay- 
 ment of the debt, that the plaintiff became a lona fide holder 
 for value, and that this consideration was sufficient to exclude 
 prior equities." In the brief of counsel authorities will be found 
 cited sustaining this proposition. 
 
 In Mayer et al. v. IleidelhacTc et al.^ it was held " that the 
 actual and absolute extinguishing of the debt in considera- 
 tion of the transfer of negotiable paper is sufficient to ren- 
 der the transferee a holder for value within the rules pro- 
 tecting such a holder against prior equities." Among other 
 things the court say: "The respondents rely upon two proposi- 
 tions which have thus far prevailed: (1) That the actual pay- 
 ment and absolute discharge of an antecedent debt is a valuable 
 consideration for the transfer of commercial paper, and cuts 
 off prior equities. ... I have no doubt as to the soundness 
 of the first proposition. It was explicitly conceded in Cod- 
 dington v. Bay^ which originated the difference between the 
 courts of this state and the concurring views of the federal 
 court and those of England. While it was in that case ruled 
 that the transfer of negotiable paper as collateral security 
 merely for an antecedent debt did not make the creditor a 
 holder for value within the rule cutting off prior equities, it was 
 yet asserted that such result followed, where, among other 
 things, some existing debt was satisfied thereby. And that, I 
 think, was a natural and logical conclusion from the reasoning 
 upon which the decision rested. The argument was that the 
 holder of the paper merely as collateral lost nothing by its 
 failure, since his debt all the time remained, his original position 
 was unchanged, and he had simply failed to get an added se- 
 curity, himself parting with nothing. It is apparent that the 
 reasoning fails, whenever, as a result of the new contract, the 
 original debt has been actually extinguished, when the paper 
 received has been both transferred and accepted as payment, 
 
 Fisher v. Fisher, 98 Mass. 303; Good- Mass. 158; National Revere Bank v. 
 win V. Massachusetts Loan & Trust Morse, 163 Mass. 383. 
 Co., 153 Mass. 189; Merchants' Nat. 185 N. Y. 21. 
 Bank v. Haverhill Iron Works, 159 '>■ 183 N. Y. 333. 
 
 35 John. 57. 
 197 
 
§ 2-i4.J PLEDGE OR PAWN. [PART II. 
 
 and the debt has been discharged within and by force of the 
 acts and concurring intention of both parties. And so we have 
 steadily decided." 
 
 An early case in the United States supreme court decided by 
 Judge Story lays down a, different doctrine. In the case of 
 Swift V. Tyson ' the court say: "It becomes necessary for us, 
 therefore, upon the present occasion, to express our own opinion 
 of the true result of the commercial law upon the question 
 now before us. And we have no hesitation in saying that a 
 pre-existing debt does constitute a valuable consideration in 
 the sense of the general rule already stated, as applicable to 
 negotiable instruments. Assuming it to be true (which, how- 
 ever, may well admit of some doubt from the generality of the 
 language) that the holder of a negotiable instrument is un- 
 affected with the equities between the antecedent parties of 
 which he has no notice only where he receives it in the usual 
 course of trade and business for a valuable consideration, before 
 it becomes due, we are prepared to say that receiving it in 
 payment of or as security for a pre-existing debt is according 
 to the known usual course of trade and business. And whj', 
 upon principle, should not a pre-existing debt be deemed such 
 a valuable consideration? It is for the benefit and convenience 
 of the commercial world to give as wide an extent as prac- 
 ticable to the credit and circulation of negotiable paper, that 
 it may pass not only as security for new purchases and advances, 
 made upon transfer thereof, but also in payment of and as 
 security for pre-existing debts. The creditor is thereby enabled 
 to realize or secure his debt, and thus may safely give a pro- 
 longed credit or forbear from taking any legal steps to enforce 
 his rights. The debtor also has the advantage of making his 
 negotiable securities of equivalent value to cash. But establish 
 the opposite conclusion, that negotiable paper cannot be applied 
 in payment of or as security for pre-existing debts, without let- 
 ting in all the equities between the original and antecedent 
 parties, and the value and circulation of such securities must 
 be essentially diminished, and the debtor driven to the embar- 
 rassment of making a sale thereof, often at a ruinous discount 
 to some third person, and then by circuity to apply the pro- 
 ceeds to the payment of his debts. What, indeed, upon such 
 
 1 16 Pet. 1; 14 U. S. (Curtis), 166. 
 198 
 
CH. 11.] PLEDGING NEGOTIABLE PAPEE. [§ 2-14. 
 
 a doctrine, would become of that large class of cases where new 
 notes are given by the same or by other parties, by way of re- 
 newal or security, to banks in lieu of old securities discounted 
 by them which have arrived at maturity? Probably more than 
 one-half of all bank transactions in our country, as well as 
 those of other countries, are of this nature. The doctrine would 
 strike a fatal blow at all discounts of negotiable securities for 
 
 pre-existing debts." 
 
 199 
 
CHAPTER III. 
 
 NON-NEGOTIABLE AND QUASI-NEGOTIABLE INSTRUMENTS. 
 
 § 245. The nature and effect of such 
 instruments. 
 
 246. The pledging of corporate 
 
 stock. 
 
 247. What deemed sufiBcient deliv- 
 
 ery by pledgor to pledgee. 
 
 248. Transfer in blank. 
 
 249. Legal and equitable title. 
 
 250. How affected by charter and 
 
 by-laws of the company. 
 
 251. The pledgee protected as 
 
 against creditors. 
 
 252. The pledgee of stock by in- 
 
 dorsement may transfer the 
 'title. 
 
 253. Bills of lading subjects of 
 
 pledge. 
 
 254. Delivery by the pledgor. 
 
 255. Mere delivery of the bill suf- 
 
 ficient. 
 236. Bill of lading to consignee 
 with draft attached. 
 
 257. A bill of lading, how far nego- 
 
 tiable. 
 
 258. Who are bona fide holders of 
 
 bills of lading. 
 
 259. Rights of bona fide holders. 
 
 § 260. Bona fide holder from agent 
 of owner, or one having ap- 
 parent title. 
 361. The warehouse receipt as col- 
 lateral. 
 
 262. Delivery of the receipt re- 
 
 quired — Indorsement in 
 blank. 
 
 263. — — Pledge created by mere 
 
 delivery of receipt 
 
 264. Statutes of states, with refer- 
 
 ence to pledgee of ware- 
 house receipt. 
 
 265. If the receipt is made to 
 
 bearer. 
 
 266. Insurance policies as collat- 
 
 eral. 
 
 267. Delivery a requisite. 
 
 268. How delivered. 
 
 269. By indorsement in blank and 
 
 delivery. 
 
 270. Notes and mortgages, and 
 
 bonds and mortgages. 
 
 271. Mere delivery as a pledge. 
 273. Full, complete assignment 
 
 and transfer. 
 373. Pledge distinguished from 
 chattel mortgage. 
 
 §245. The nature and effect ofsncli instruments.— In- 
 struments that are non-negotiable, sirapl}^ the evidence of 
 ownership of certain interests or property, ma}' be the subject 
 of the pledge. While these instrmnents cannot be said to be 
 the property itgelf, they are the indicia of ownership, the 
 muniments of title knowa and recognized in the business 
 world, bought, sold and pledged as property for the reason 
 that they represent property, and by their transfer the prop- 
 erty they represent is transferred. We cannot discuss or even 
 mention every class of non-negotiable instruments known and 
 
 200 
 
en. III.] NON-NEGOTIABLE AND QUASI-XKtiOTlABLE. [§ 24:6. 
 
 recognized in business, as it would consume too much space; but 
 only a few of them — those most commonly known and used. 
 Among these may be mentioned stocks of corporations, bills 
 of lading, warehouse receipts, insurance policies, mortgages 
 and savings bank books. 
 
 §246. The pledging of corporate stock. — Because of the 
 rule that a valid pledge requires a deliverj'- of the property by 
 the pledgor to the pledgee, and an acceptance and continued 
 possession by the pledgee, it has not always been thought that 
 stock in a corporation could be the subject of a pledge; but 
 opinions upon that subject have changed, and there is no longer 
 any question as to such property being the subject of a pledge. 
 The certificate of stock, of course, is not the property itself, 
 but it represents the property ; and the holder of the certificate, 
 by reason of it, is the holder and possessor of the certain prop- 
 erty interests in the property of the corporation which the cer- 
 tificate represents, whether it be personalty or realty; and 
 those interests so represented by the stock certificate may be 
 purchased, sold and transferred by the transfer of the certifi- 
 cate of stock. This being true, it certainly follows that corporate 
 stock may be the subject of a pledge. 
 
 The court in Brewster v. Hartley ^ say : " A delivery to the 
 pledgee of the thing pledged is essential to the contract, and 
 until that act is performed the special property that the bailee 
 is entitled to hold does not vest in him. In respect to most 
 kinds of property, a delivery of the property to the pledgee, 
 without any written transfer of the title, is sufficient to pass 
 the requisite special property. Incorporeal property, being 
 incapable of manual delivery, cannot be pledged without a 
 written transfer of the title. Debts, negotiable instruments, 
 stocks in incorporated companies, and choses in action gen- 
 erally, are pledged in that mode. Such transfer of the title 
 performs the same office that the delivery of possession does 
 in case of a pledge of corporeal property. The transfer of the 
 title, like the delivery of possession, constitutes the evidence 
 of the pledgee's right of property in the thing pledged. The 
 
 1 37 Cat 15-35. In Wilson v. Lit- more than a legal right to the resto- 
 tle, 3 N. Y. 443, the court say: "The ration of the thing pledged on pay- 
 general property which the pledgor ment of the debt." 
 is said usually to retain is nothing 
 
 201 
 
§§ 24:7, 248.] PLEDGE OE PAWN. [PART II. 
 
 transfer in writing of shares of stock not only does not prove 
 that the transaction is not a pledge, but the stock, unleas it is 
 expressly made assignable by the delivery of the certificates, 
 cannot be pledged in any other manner." 
 
 § 247. What deemed sufflcient delivery by pledgor to 
 pledgee. — Delivery and possession of the pledged property is 
 as much of an essential when stock in a corporation is the 
 subject of the pledge as in any other case. If the stock is 
 regularly transferred by indorsement and upon the books of 
 the company, and is held by the pledgee as a pledge, there can 
 be no doubt of the sufficiency of such a transfer and delivery; 
 and when so held in good faith by the pledgee as security for 
 the payment of a debt, or the performance of an obhgation, 
 the law will protect the pledgee's holding and security, not 
 only as against the pledgor, but also against all persons claim- 
 ing from or under him. It is not, however, necessary that the 
 stock should be transferred on the books of the company ex- 
 cept under certain circumstances, to protect the pledgee against 
 creditors or subsequent purchasers in good faith, because the 
 certificate indorsed in blank and delivered to the pledgee would 
 ho. fr una facie evidence of ownership, and a presentation to 
 the proper officers of the company of a certificate so indorsed 
 would entitle the holder to have the stock transferred to him. 
 The indorsement in blank of the certificate of stock by the 
 owner authorizes the person to whom he delivers it with inten- 
 tion to transfer it or pledge it, or his assigns, whether pledgee 
 or vendee, to write over the signature of the owner indorsed 
 upon the stock certificate a full assignment of the stock, with 
 directions to transfer the same upon the books of the company' 
 
 § 24S. Transfer in blank, — As we have seen, stock 
 
 certificates may be transferred by indorsement in blank and 
 delivery of the certificate. This manner of transfer, no doubt, 
 grows out of the demand that business usage has made. Espe- 
 cially is this manner of transfer and delivery applicable to the 
 subject under consideration. It is not the desire of the pledgor 
 
 1 German Union Ass'n Bldg. v. which may be filled up by the holder 
 Sendmeyer, 50 Pa. St. 67; Mt. Holly, by writing an assignment and a 
 etc. Turnpike Co. v. Ferree, 17 N. J. power of attorney over the signature 
 Eq. 117. A certificate of stock is indorsed. Kortright v. Commercial 
 transferable by a blank indorsement Bank, 20 Wend. 91. 
 
 203 
 
CH. III.J NON-NEGOTIABLE AND QUASI-NEGOTIABLE. [§ 248. 
 
 to transfer his stock absolutely upon the books of the com- 
 pany ; he simply desires to make such a delivery of the stock 
 as will be security in the hands of the pledgee for the payment 
 of the debt or the performance of the undertaking. And so it 
 has become to be a well settled usage recognized and practiced, 
 to execute a pledge of stock as security by delivery of the cer- 
 tificate of shares indorsed in blank. 
 
 In the case of Kortright v. Commercial Banh of Buffalo^ 
 it appeared that by the by-laws of the company the stock was 
 trancferable only upon the books of the company; that the 
 owner of certain shares of bank stock thus transferable sent 
 his certificate with a blank power of attorney under seal, and 
 his own promissory note, to an agent to be used in obtaining a 
 loan. The loan was subsequently obtained upon these securi- 
 ties by the agent, who absconded with the money. The pledgee 
 filled up the blank transfer and power of attorney over the 
 signature of the owner, and demanded a transfer of the shares 
 to himself upon the books of the bank, which the bank refused 
 to allow. In a suit by the pledgee against the bank upon such 
 refusal, the pledgee was held to be entitled to recover. Chief 
 Justice Nelson, speaking for the court in denying a motion for 
 a new trial, said that the filling up of the blank transfer over 
 the signature of the owner indorsed upon the certificate and 
 the power of attorney was in " strict conformit}' with the uni- 
 versal usage of dealers in the negotiation and transfer of stock 
 according to the proof in the case. Even without the aid of 
 this usage there could be no great difficulty in upholding the- 
 assignment. The execution in blank must have been for the 
 express purpose of enabling the holder, whoever he might be, 
 to fill it up. If intended to have been filled up in the name of 
 the first transferee, there would have been no necessity for its 
 execution in blank; the owner might have completed the in- 
 strument. The usage, however, is well established, and was 
 fully understood by the owner, as he made the transfer in con- 
 formity to it, and he, or those setting up a claim under him, 
 should not be permitted to deny its validity. The filling up 
 is but the execution of an authority clearly conveyed to the 
 holder; is lawful in itself, and convenient to all parties, as it 
 
 1 20 Wend. 91. 
 303 
 
§ 249.J PLEDGE OB PAWN. [PAET II. 
 
 avoids the necessity of needlessly multiplying transfers upon 
 the books." 
 
 § 219. Legal and equitable title.— There is some disagree- 
 ment among the authorities as to what establishes a legal title 
 to corporate stock; that is to say, just what kind of a transfer 
 is necessary to transfer the legal title to the stock, and what 
 transfers are demanded to simply transfer the equitable title. 
 Is it necessary in order to establish a legal title that tlje trans- 
 fer of stock shall be entirely filled out authorizing the secre- 
 tary of the company to transfer the stock upon the corporate 
 books, signed by the owner and delivered, and these followed 
 by an actual transfer upon the books of the company; or will 
 a simple delivery of the certificate of stock indorsed in blank, 
 or the assignment and authoi'ization to transfer the stock made 
 out and signed by the owner and delivered, be sulEcient to 
 confer upon the holder a legal title ? If the stock is trans- 
 ferred by a written assignment and power to transfer upoa 
 the books, duly signed by the owner, accepted and transferred 
 in accordance with the directions upon the books of the com- 
 pany, there can be no doubt that such a transfer of the stock 
 confers upon the transferee a legal title; and many of the au- 
 thorities hold that the other methods mentioned will transfer 
 only an equitable title. 
 
 In 21t. Ilol.hj, etc. Ttirnpike Co. v. Ferree et al.^ the court say: 
 " The certificate of stock, accompanied by the power of attor- 
 ney authorizing the transfer of the stock to any person, is 
 prima facie evidence of equitable ownership in the holder, and 
 renders the stock transferable by the delivery of the certificate, 
 
 ' 17 N. J. Eq. 117; Hunterdon Co. value for them -n-ithout notice of 
 Bank v. Nassau Bank, 17 N. J. Eq. any intervening equity, his title as 
 49(i. In this case the court say: such owner cannot be impeached." 
 "Considerations of commercial con- Bank of America v. McNeil, 10 Busli 
 venienoe and public policy suggest (Ky.), 54. In this case the court speaks 
 the true rule upon this subject, of an assignment of the certificate 
 Wliereacertificateof shares of stock with power to transfer, where the 
 in an incorporated company, acoom- corporation's charter provides for a 
 panied by an irrevocable power of transfer upon its books, as a symbol- 
 attorney from the owner to transfer ical delivery of the stock, effectual 
 them, either filled vip or in blank, are against persons having actual notice 
 in the hands of the third party, he is of it. State Ins. Co. v. Sax, 2 Tenn. 
 presumptively the equitable owner Oh. 507; Bruce v. Smith, 44 Ind. 1,'5. 
 of the shares, and if he has given 
 
 204 
 
CH. III.J NON-NEGOTIABLE AND QUASI-NEGOTIABLE. [§ 249. 
 
 and when the party in whose hands the certificate is found is 
 shown to be a holder for value without notice of any interven- 
 ing equity, his title as such owner cannot be impeached. The 
 holder of the certificate may insert his own name in the power 
 of attorney and execute the power and thus obtain the legal title 
 to the stock whenever the loan for which it was hypothecated 
 comes due, or whenever by the terms of his contract he be- 
 comes entitled to the stock; and such a power is not limited to 
 the person to whom it was first delivered, but inures to the 
 benefit of each lonajide holder into whose hands the certificate 
 and power may pass; and the title of the holder is in no wise 
 affected by a provision in the charter or by-laws of the corpo- 
 ration that the stock is transferable only on the books of the 
 corporation; such provision is intended merely for the protec- 
 tion and benefit of the corporation. These principles have been 
 repeatedly recognized by the courts of other states, and in com- 
 mercial cities, and constitute the basis of daily business trans- 
 action." 
 
 It can hardly be said, however, that this doctrine is supported 
 by the weight of authority. In the case of Oushman v. Thayer 
 Mfg. Co} the action was brought to compel the defendant to 
 transfer upon its books certain shares of stock to the plaintiff, 
 and issue a new certificate for the same to her. The court, in 
 its opinion, say : " A court of equity will enforce a specific per- 
 formance of a contract for the sale of real estate, and cotnpel 
 the execution of a deed bj'' the vendor to the vendee, although 
 an action all law may be brought to recover damages for the 
 breach of the contract. Such a case bears a striking analogy 
 to the one now presented, and the same principle is applicable 
 where the remedy at law is inadequate to furnish the proper 
 relief. That an equitable action will lie in such_ a case has 
 been distinctly recognized in a number of the adjudicated 
 cases in this state " (citing authorities). And again the court 
 say: "The delivery of the certificates, as between the owner 
 and assignee, with the assignment and power indorsed, passes 
 the entire legal and equitable title in the stock, subject only to 
 such liens or claims as the corporation may have upon it.^ Any 
 act suffered by the corporation that invested a third party with 
 
 176 N. Y. 365. N. Y. 325; N. Y. & N. H. R. Co. v. 
 
 2 McNeil V. Tenth Nat. Bank, 46 Schuyler, 34 id. 30, 80. 
 
 205 
 
§ liaO.J PLEDGE OR PAWN. [PAET 11. 
 
 the ownership of the. shares, -without due production and sur- 
 render of the certificate, rendered it liable to the owner; and 
 it was its duty to resist any transfer on the books without such 
 production and surrender." ^ But for the purposes of our dis- 
 cussion it is not material whether the title created is equitable 
 or legal, for it is Avell settled that delivery of stock, indorsed 
 in any of the ways mentioned, will support a pledge; that be- 
 tween the parties such a delivery and indorsement will trans- 
 fer the title, and it is not necessary to that end that there should 
 be a transfer upon the books of the company. In Johnston v. 
 Laflin' the court held that, as between the parties, the title to 
 shares of the capital stock of a national bank passes when the 
 owner delivers his stock certificate to the purchaser with au- 
 thority to him, or any one whom he may name, to transfer 
 them on tbe books of the bank. 
 
 § 250. How affected by charter and by-laws of the com- 
 pany. — It cannot be said that a by-law of a company which 
 requires that the stock shall be transferred upon its books, or 
 a charter of a company prescribing the mode in which the 
 stock shall be transferred, are unimportant. There is no doubt 
 but that this regulates the respective rights of the corporation 
 and the individual stockholdei's, and it is held that a holder 
 of a certificate of stock indorsed in blank cannot assert a legal 
 title against the corporation itself without such a transfer upon 
 its books.* As we have seen, this does not affect the title to 
 the stock as between the owner and the pledgee, or the holder 
 by indorsement in blank; it is simply a regulation which the 
 company may insist upon being carried out by its stockhold- 
 ers. The company, however, could not legally refuse, upon 
 presentation of such a certificate duly indorsed, to transfer the 
 stock, and if it should refuse it could be compelled to make 
 the transfer upon its books. 
 
 1 Smith V. Am. Coal Co., 7 Lans. 317; Carroll v. Mullanphy Sav. Bank, 
 317; Leitch v. Wells, 48 N. Y. 585; 8 Mo. App. 249; Johnston v. Under- 
 Grymes v. Hone, 49 N. Y, 17; Hoi- hill, 52 N. Y. 203. 
 brook V. N. J. Zinc Co., 57 N. Y. 623. 2103 U. S. 800. 
 In this case it wag held that " one ^ Beecher v. Wells Flouring Mill 
 who takes an assignment of a stock Co., 1 Fed. Rep. 276; Laing v. Bur- 
 certificate as between him and the ley, 101 111. 551 ; Oatis v. Gardner, 
 transferrer takes the whole title, 105 111. 436; People v. Robinson, 6i 
 both legal and equitable.'' Cecil Nat. Cal. 373. 
 Bank v. Watsontown Bank, 105 U. S. 
 
 208 
 
CH. III.J NON-NEGOTIAIJLE AND QUASI-NEGOTIABLE. [§ 251. 
 
 la Smith V. Crescent City Live Stock Co} the court say : " The 
 by-laws which require transfers of stock to be recorded on tho 
 books of the corporation regulate merely the respective rights 
 of the corporation and the individual stockholders; no one can 
 -claim to be a stockholder and to exercise the rights of a cor- 
 porator in virtue of a sale of stock to him until the corpora- 
 tion has taken cognizance of the sale, and by transfer on its 
 books has substituted the purchaser for the seller. Whether 
 •one has acquired the character and the rights of a corporator 
 is a question to be determined by the laws of the corporation. 
 Whether a purchaser has acquired . , . a good and perfect 
 title to any property, tangible or intangible, is a question to be 
 solved by the laws of the state, applicable to the sale and 
 transfer of such objects." 
 
 As between the stockholder and the corporation, the records 
 of the corporation furnish the evidence of their relation, and 
 in the case of People v. Eolinson "' it was held that " a transfer 
 not entered on the books of the company has no validity out- 
 side of the parties to such transfer. If not, could it affect the 
 validity of an election at which trustees of the company were 
 elected ? If so, would not a transfer, although not entered on 
 ithe books of the company, be valid outside of the parties to 
 such transfer? The construction which we feel compelled to 
 give to this clause is, that a transfer of stock, until entered 
 upon the books of the company, confers on the transferee, as 
 between himself and the company, no right beyond that of 
 'having such transfer properly entered. Until that is done, or 
 -demanded to be done, the person in whose name the stock 
 is entered on the books of the company is, as between himself 
 and the company, the owner to all intents and purposes, and 
 particularly for the purpose of an election."^ 
 
 § 251. The pledgee protected as against creditors. — At 
 common law the delivery of the certificate of stock, with the 
 power to transfer on the books of the company, is a sufficient 
 delivery, and, when there is no statute to the contrary, such a 
 
 130 La. 1378-83; Litner's Appeal, Manufacturing Iron Co., 11 Wend. 
 
 82 Pa. St. 301. 627 : Bank of Buffalo v. Kortright, 33 
 
 2 64 Cal. 373. Wend. 348; State of Nevada v. Pet- 
 
 ' State V. Ferris, 43 Conn. 560; Hop- tineli, 10 Nev. 141. 
 
 pin V. Buffura, 9 R. I. 513; Gilbert v. 
 
 207 
 
^ 251.] PLEDGE OE PAWN. [PAET II. 
 
 transfer of stock will carry the entire title as against outside 
 equities and creditors of the pledgor.' In many of the states, 
 however, there are statutes expressly providing that such trans- 
 fer shall not be good against creditors unless it is transferred 
 upon the books of the company. In such states the courts, fol- 
 lowing the statutes, have held that in order that a pledgee be 
 protected against the creditors of the pledgor it is necessary 
 that the stock delivered to him in pledge shall be transferred 
 upon the corporate books. 
 
 A very full discussion may be found in the case of Scott v. 
 PequonnocJc Nat. Bank} The stock in this case (bank stock) 
 had been sold and transferred by indorsement and written as- 
 signment and power of attorney, but had not been transferred 
 upon the books of the company; it was levied upon by a cred- 
 itor of the transferrer; the transferee brought an action at law 
 to recover damages from the defendant corporation for refusal 
 to allow a transfer upon its books. The court say, among other 
 things: "In the absence of a statute or of a provision in the 
 charter, or of a by-law passed in pursuance of authority con 
 ferred by the charter, prescribing the exclusive manner in 
 which the stock of a corporation shall be transferred, the stock 
 owner has a right to transfer such property to a purchaser by 
 the delivery of the stock certificate with a written assignment 
 thereof. The title of a honafide purchaser to whom such cer- 
 tificate and assignment have been delivered will not be divested 
 by the subsequent attachment of the stock at the suit of the 
 creditor of the vendor. In some of the states statutes have 
 been passed and provisions have been inserted in the charters 
 of the corporations, prescribing, either expressly or by implica- 
 tion, an exclusive method of transfer. . . . The Connecticut 
 decisions, especially the earlier ones, which were made at a 
 time when the rights of attaching creditors were strongly 
 favored, were to the effect that ' in cases where the legislature 
 in the act of incorporation either prescribe the mode of trans- 
 
 1 Boston Music Hall Ass'n v. Cory, absence of an express provision of 
 
 129 Mass. 435. In this case it was statute, or of the charter of the cor- 
 
 held a sale of stock in a corporation poration, requiring suoli transfer to 
 
 is valid against a subsequent at- be made. Sergeant v. Franklyn Ins. 
 
 tached creditor of the seller, although Co., 8 Pick. (Mass.) 90; Fisher v. Es- 
 
 no transfer of the stock is made on sex Bank, 5 Gray (Mass.), 373. 
 the books of the corporation, in the 2 15 fed. 494. 
 
 308 
 
en. in.] NON-NEGOTIABLE AND QUASI-NEGOTIABLE. [§ 251. 
 
 ferring the stock, or authorize the company to do it in their 
 by-laws, and the company do in their by-laws prescribe a mode 
 as the only one to be pursued, that mode must be followed, or 
 the legal title will not pass by an assignment which would he 
 good at common law had no particular and exclusive mode of 
 transfer been prescribed.' " ' 
 
 In Fisher v. Essex Bank"^ Chief Justice Shaw, after saying 
 that whatever common-law rules, in the absence of any express 
 rule of law, the courts have adopted, to determine what action 
 constitutes the actual transfer of shares, when the transfer is 
 so regulated, such law must govern, held that an express pro-, 
 vision in the act of incorporation of a bank that the stock should 
 be transferable only at its banking house and on its books, 
 makes a transfer at the bank imperative as against an attaching 
 creditor without notice of previous assignment and delivery of 
 the certificate to a purchaser. The reasoning was to the effect 
 that it is necessary to fix some act and some period of time at 
 which the property changes and vests in the vendee, and that 
 by the charter the transfer at the bank is made the decisive 
 act of passing the property — the legal, transferable, attachable 
 interest." 
 
 From the cases cited and quoted from it will be observed 
 that the courts of the several states are not entirely harmonious 
 in their holdings upon this question, The majority of the 
 courts, however, have held that a transfer of stock unrecorded, 
 upon the books of the company, is not valid as against cred- 
 itors of the seller when the charter or by-laws of the corpora- 
 tion or the statutes of the state require such record ; this is 
 upon the theory that nothing short of a compliance with the 
 provisions of the charter, by-laws and statutes of the state 
 would be a constructive notice of such transfer, or sufficient 
 to validate the transaction as to creditors or Tiona fide pur- 
 chasers.^ But the courts of all the states would undoubtedly 
 
 1 Colt V. Ives, 31 Conn. 35. charter of the corporation provides 
 
 25 Gray, 373. the manner in which stocks should 
 
 ' Parrott v. Byers, 40 Cal. 614; Nag- be transferable, and where that mode 
 
 ler V. Pacific Wharf Co., 20 Cal. 629; of transfer was simply provided in its 
 
 People V. Elmore, 35 CaL 653. In by-laws. Where the charter regu- 
 
 Massachusetts, by the passage of the latedthe manner of transfer, it was 
 
 statute in that state regulating the held that this mode must be followed 
 
 transfer of stock, the courts seem to pass a good title against attaching 
 
 to have held differently where the creditors. Fisher v. Essex Bank, 5 
 
 14 209 
 
g 252.J PLEDGE OK PAWN. [PAET II. 
 
 feel compelled to hold that an actual notice that a transfer had 
 been made by delivery of the stock duly assigned, with power 
 of attorney to transfer upon the books, although unregistered, 
 would be as effective as though the transfer were registered, 
 and would supersede the rights of creditors attaching with full 
 knowledge of such transfer.^ 
 
 It will no doubt be necessary to examine the statute of the 
 state in which the contract is made in order to determine the 
 rights of the pledgee in each instance; the statutes and the 
 holdings of the courts of the different states being so varied 
 that it is impossible to lay down any fixed rule governing all 
 transactions. 
 
 § 252. The pledgee of stock by indorsement may transfer 
 the title. — As has been said, when the stock is indorsed in 
 blank and delivered to the pledgee as a pledge, he may write 
 over the indorsement the direction and power necessary to 
 warrant the transfer of the stock upon the books of the com- 
 pany, and, as we have seen, he thus becomes at least the appar- 
 ent actual owner of the stock, having all the indicia of own- 
 ership of the same; he is therefore enabled to confer upon a 
 hnna fell' purchaser, paying value for it, a good title even as 
 against the true owner. Such a title as between the owner 
 and the pledgee rests upon the doctrine of estoppel; the true 
 owner having conferred upon the apparent owner, by a written 
 transfer, all the indicia of ownership of the stock, is estopped 
 from impeaching the title thus conferred and asserting his own 
 title; the rule being Avell established, that, as between two 
 innocent parties, he who has made it possible for another to 
 commit the wrong must suffer; and it has been held, " first, that 
 the possession of certificates of corporate stock, which bear 
 the proper indorsement, is prima facie evidence of ownership, 
 
 Gray, S73; Rock v. Nichols, 3 Allen, v. Gardner, 105 111. 435; Cheeverv. 
 
 342; Blauchard v. Dedham Gas Co., Myer, 2 Vt. 66. 
 12 Gray, 213. Where only the by- i Scripture v. Francistown Soap 
 
 laws of the corporation make such Co., 50 N. H. 371. In Newberry t. 
 
 provision, a transfer of stock with- Detroit, etc. Co., 17 Mich. 141, the 
 
 out registration or transfer upon court held that " a transfer of_stook, 
 
 the books, held good against attach- whether recorded or not, conveys the 
 
 ing creditors without notice. Ser- interest of the holder, and is valia 
 
 geant v. Essex Ry. Co., 9 Pick. 202; except as againstpersonsliavingequi- 
 
 Sergeant v. Franklin Ins. Co., 8 Pick, ties; and a judgment creditor by an 
 
 90. See also Sibley v. Quiiisigmond execution sale with notice of the 
 
 Nat. Bank, 133 Mass. 515; Shipman transfer can get no better title than 
 
 V. Min& Ins. Co., 29 Conn. 243; Oatis his debtor has." 
 
CH. III.j NON-XEGOTIABLE AND QUASI-KEGOTIABLE. [§ 253. 
 
 and that the holder for value without notice of prior equities 
 obtains a perfect title as against such equities; second, if the 
 rightful owner has invested another with the usual evidence 
 of title or an apparent authority to dispose of the stock, he will 
 be estopped from making any claim against an innocent pur- 
 chaser dealing on the faith of such apparent ownership or right 
 of disposal." ^ But in such case the pledgor is not without 
 remedy; if the pledgee has disposed of the stock, the pledgor 
 may bring an action against him for conversion, and recover 
 its value. If the stock is still in the hands of the pledgee, 
 or if it has been transferred to a third person having notice of 
 the equities of the pledgor; that is to say, one who has notice 
 of the fact that the stock is held as a pledge, and was not in- 
 tended to be transferred' by a sale to the pledgee ; the pledgor 
 in such case could sustain a bill in equit}'^ against the pledgee 
 and such third persons so holding the stock with notice, and 
 the court of equity would declare that the stock was'held as a 
 pledge and not by reason of actual transfer. The maxim in 
 equity would apply, "Equity regards substance rather than 
 form;" and although the transfer upon its face might be abso- 
 lute, or even have gone so far as to have been transferred to 
 the pledgee upon the books of the company, still the court of 
 equity would declare that such transfer was but a pledge, and, 
 if new certificates of stock had been issued, would decree their 
 cancellation, and that certificates upon the redeeming of the 
 pledge be issued to the pledgor. 
 
 In the case of Bride v. Brick^ Field, J., in the opinion of 
 the court, said: " In ther late case of Peugh v. Davis (96 U. S. 
 
 1 Walker v. Detroit Transit Ry. Co., regard as the weaker party, against 
 47 Mioh. 338. See authorities cited being wronged or oppressed by cred- 
 by the court at page 347; also brief itors, whom they regard as the 
 of counsel. stronger party. Their method of 
 
 2 98 U. S. 514: Hughs v. Edwards, interference has been by preventing 
 9 Wheat. 489; Russell v. Southern, the creditor from maintaining his 
 
 12 How. 139; Pierce v. Robinson, title according to the legal effect of 
 
 13 Cal. 116. In the case of Nesvton his conveyance whenever it was in- 
 V. Fay, 10 Allen, 505, the court en- equitable for him to do so. There- 
 ters into a full discussion of this ques- fore, it was held in Howard v. Har- 
 tion. Chapman, J., in rendering the ris, 1 Vern. 190, that if a mortgage 
 opinion, says: "The policy of courts is made by its terms irredeemable, 
 of equity has been from the earliest or the redemption is restricted, such 
 time to protect debtors, whom they restrictions are disregarded. In 
 
 311 
 
§ 252.] 
 
 PLEDGE OK PAWN. 
 
 [PAET II. 
 
 336) we stated the doctrine of equity on this subject. Where 
 an instrument was in the form of a conveyance, but was in fact 
 intended as a security, and though the instrument there was a 
 deed of real property, the principle applies when the instru- 
 
 Spurgeon v. Collier, 1 Eden, 55, 
 the same doctrine was held, and 
 Lord Northington said that a man 
 will not be suffered in conscience to 
 fetter himself with a limitation or 
 restriction of his time of redemp- 
 tion. In Vernon v. Bethell, 2 Eden, 
 110, parol evidence was admitted 
 to prove that an absolute convey- 
 ance of an equity of redemption of 
 real estate was made as security for 
 a loan and for no other consider- 
 ation, and the vendor was permitted 
 to redeem. The court said that neces- 
 sitous men are not, truly speaking, 
 free men, but to answer a present 
 exigency will submit to any terms 
 that the crafty may impose upon 
 them. When such parol evidence 
 has been admitted, it has not been 
 regarded as inconsistent with the 
 statute of frauds. In Walker v. 
 Walker, 3 Atk. 98, Lord Hardwicke 
 said it had nothing to do with the 
 statute of frauds. In Kunkle v. 
 Wolfersberger, 6 Watts, 126, Gibson, 
 C. J., said the proof raises an equity 
 consistent with the writing. It 
 seems to be regarded as an inquiry 
 into the consideration of the sale, 
 for the purpose of doing equity be- 
 tween the parties. The rule on this 
 subject and the reason of it are fully 
 and clearly stated by Mr. Justice 
 Curtis in Russell v. Southard, 13 
 How. 139. He says: 'To insist on 
 what was really a mortgage as a 
 sale is in equity a fraud which can- 
 not be successfully practiced under 
 the shelter of any written papers, 
 however precise and complete they 
 may appear to be.' He cites several 
 English as well as American authori- 
 ties to sustain this position. In £he 
 prior case of Morris v. Nixon, 1 How. 
 
 126, the same doctrine had been be- 
 fore held, and in Babcook v. Wyman, 
 3 Curtis, C. C. 386; S. C, 19 How. 289, 
 it was re-affirmed. The case of Rus- 
 sell V. Southard came up from Ken- 
 tucky, and Mr. Justice Curtis says: 
 'It is suggested that a different rule 
 is held by the highest court in Ken- 
 tucky. If it were, with great respect 
 for that learned court, this court 
 would not feel bound thereby. This 
 being a suit in equity, and oral evi- 
 dence being admitted or rejected 
 not by the mere force of any state 
 statute, but upon the principles of 
 general equity jurisprudence, this 
 court must be governed by its own 
 views of those principles.' But he 
 cites the case of Edrington v. Har- 
 per, 3 J. J. Marsh. 355, where it was 
 held that the fact that the real trans- 
 action between the parties was a 
 borrowing and lending will, when- 
 ever or however it may appear, show 
 that a deed absolute upon its face 
 was intended as a security for 
 money, and whenever it can be as- 
 certained to be a security for money, 
 it is only a mortgage. Mr. Justice 
 Story had held the same doctrine at 
 a still earlier period. He held that 
 parol evidence was admissible to 
 show tliat an absolute deed was in- 
 tended as a security for money, and 
 that such a deed should be treated 
 as a mortgage, whether the defeas- 
 ance was omitted by fraud, mistake 
 or accident, or by design, upon mut 
 ual confidence between the parties; 
 for he says the violation of such an 
 agreement would be a fraud of the 
 most flagrant kind, originating in an 
 open breach of trust, against con- 
 science and justice. Taylor v. Lu- 
 ther, 3 Sumner, 228; Jenkins v. El- 
 13 
 
OH. in.J NON-NEGOTIABLE AND QUASI-NEGOTIABLE. 
 
 [§ 252. 
 
 merit purports to transfer personal property. A court of 
 equity, we there said, looks beyond the terms of the instrument 
 to the real transaction, and M'hen that is shown to be one of 
 security and not of sale it will give effect to the actual con- 
 
 dridge, 3 Story, 393. The same rule the courts extends, namely, by pro- 
 has long been held in New York 
 and on the same ground. Strong v. 
 Stewart, 4 Johns. Ch. 167, was de- 
 cided by Chancellor Kent on the 
 strength of several English authori- 
 ties cited by him. See also Slee v. 
 Manhattan Co., 1 Paige, 48; Van 
 Buren v. Olmstead, 5 Paige, 9. In 
 the latter case the rule is said to be 
 well settled. After considerable dis- 
 cussion it was settled that the rule 
 was limited to cases in equity, and 
 did not prevail in courts of law. 
 Webb V. Rice, 1 Hill, 606; Hodges v. 
 Tennessee Ins. Co., 4 Selden, 416. 
 But by the code parol evidence is 
 made admissible both at law and in 
 equity to show that an assignment, 
 though absolute in its terms, was a 
 security for a loan or an indemnity 
 against a liability, and is therefore a 
 mortgage. Despard v. Walbridge, 
 15 N. Y. 374. In Wright v. Bates, 13 
 Vt. 341, the court say: 'It is well 
 settled law in this state that a court 
 of chancery will treat an absolute 
 deed of real estate, given to secure 
 the payment of a debt, as a mort- 
 gage, as between the immediate par- 
 ties, especially if the grantor con- 
 tinues to remain in possession, 
 though the defeasance rests wholly 
 in parol.' But where the possession 
 has followed the deed through several 
 grantees, such evidence is held in- 
 admissible. Conner v. Chase, 15 Vt. 
 764. And in this last case Williams. 
 C. J., argues against the rule itself. 
 In a note to 3 Cruise Dig. (GreenL 
 ed.), tit. XV, ch. 1, sec. 30, it is said 
 that 'in Maine and Massachusetts 
 the statutes recognize only two 
 modes of creating a mortgage to 
 which the chancery jurisdiction of 
 
 viso inserted in the deed, and by a 
 separate deed of defeasance. All 
 equitable mortgages created by con- 
 tract of the parties seem, therefore, to 
 be excluded. Relief, if any, in other 
 cases must be referred to the head 
 of fraud, trust, or accident and 
 mistake.' Since the publication of 
 that work relief has been afforded 
 under this head in a case where an 
 absolute deed was alleged to have 
 been intended as a security for a 
 debt, and where the answer and 
 proof showed the intention. Howe 
 V. Russell, 36 Me. 115. No case has 
 arisen in this commonwealth where 
 this court could consider whether it 
 would adopt the rule of equity ad- 
 mitting parol evidence to prove that 
 an absolute deed was given as secu- 
 rity for a loan or for indemnity. For 
 though the court has had jurisdic- 
 tion of trusts for many years, yet 
 the jurisdiction has been strictly 
 construed, and has been held not to 
 extend to trusts created by convert- 
 ing a fraud into a trust. Mitchell v. 
 Green, 10 Met. 101. As a mortgage 
 is not strictly a trust, but the ele- 
 ment of fraud is held to enter into 
 the attempt to convert it into an 
 absolute sale, the court could not, 
 prior to 1855, have entertained juris- 
 diction of such a case. The present 
 case does not require us to decide 
 whether the rule ought to be adopted 
 hei-e in application to a mortgage of 
 real estate. But in respect to the 
 transfer of stocks, which requires 
 but little formality between the par- 
 ties, and is often made in the hurry 
 of business, as a bill of parcels is 
 made, and as to which a trust may 
 be created and proved by parol, and 
 
 213 
 
§ 253.] ' PLEDGE OE PAWN. [PAET II. 
 
 tract of the parties. As the equity upon which the court acts 
 in such cases arises from the real character of the transaction, 
 any evidence, written or oral, tending to show this is admissi- 
 ble. The rule which excludes parol testimony to contradict 
 or vary a written instrument has reference to the language 
 used by the parties. That cannot be qualified or varied from 
 its natural import; it must speak for itself. The rule does not 
 forbid an inquiry into the object of the parties in executing 
 and receiving the instrument. Thus, it may be shown that a 
 deed was made to defraud creditors, or to give a preference, or 
 to secure a loan, or for any other object not apparent on its 
 face. The object of parties in such cases will be considered by 
 a court of equity ; it constitutes a ground for the exercise of 
 its jurisdiction, which will always be asserted to prevent fraud 
 or oppression and to promote justice." But in such case it is 
 is only the honafide purchaser that can take a valid title of the 
 stock from the pledgee. A purchaser who has no knowledge 
 of the real facts as to the pledgee's holding the stock, and where 
 there is nothing upon the face of the certificates which would 
 put a reasonably prudent man upon inquiry; as, for example, 
 if upon its face the certificates of stock were charged with a 
 trust; or if there was acknowledged upon the part of the per- 
 son taking such stock from the pledgee that the stock was 
 charged with the trust, or if upon the face of the stock it ap- 
 peared that the stock was fictitious, the purchaser could not 
 claim to be a ionafide holder. 
 
 Bills of Lading. 
 
 § 253. Bills of lading; subjects of pledge. — A bill of lading 
 is defined to be a written acknowledgment signed by the com- 
 mon carrier that he has received the goods therein described 
 from the shipper to be transported on the terms therein ex- 
 pressed to the described place of destination, and there to be 
 delivered to the consignee or parties therein designated. By 
 
 which is to be regarded as a pledge admitting oral proof as to the con- 
 i-ather than a mortgage, when used sideration and purpose of the trans- 
 as a collateral security, we think the fer, and that, upon the discharge of 
 principle of equity jurisdiction so the debt or duty secured by it, the 
 fully established elsewhere in re- pledgor should be permitted to re- 
 gard to instruments much more for- deem." 
 mally executed ought to be adopted, 
 
 314 
 
CH. III.] NON-NEGOTIABLE AND QUASI-NEGOTIABLE. [§ 
 
 or>?, 
 
 it the common carrier contracts to carry and deliver goods to 
 the consignee, or to the order of the shipper. It will be borne 
 in mind that the property described in the bill of lading is in 
 the possession of the common carrier for the purpose only of 
 delivery to the consignee. It has been said that a bill of lad- 
 ing is^a symbol of property, and when properly indorsed oper- 
 ates as a delivery of the property itself, investing the indorsee 
 with a constructive custody which serves all the purposes of 
 an actual possession, and so continues until there is a valid and 
 complete delivery under and in presence of the bill of lading 
 to the person entitled to receive the property.' It may there- 
 fore be said that a bill of lading is in the nature of a quasi- 
 negotiable instrument, and that long-continued custom and 
 the usages of trade have given to it distinctive characteristics, 
 among which are, that a transfer of the property may be ef- 
 fected by an indorsement of the bill by the consignee to whom- 
 soever he desires to deliver the property, and that the same 
 rules would apply to a bill of lading as those which have been 
 already discussed with reference to negotiable instruments. 
 We have here to consider only whether a bill of lading is the 
 subject of a pledge, and to what extent its indorsement and 
 delivery for that purpose is necessary to create a pledge to se- 
 cure the discharge of some obligation or the payment of a 
 debt. If indorsement and delivery of the bill of lading is suffi- 
 cient to transfer the possession and title of the property, it is 
 certainly sufficient to transfer to the pledgee a possession to be 
 held in pledge for the performance of an obligation or the pay- 
 ment of a debt. 
 
 In Pollard v. Vinton,^ Miller, J., in delivering the opinion of 
 the court took occasion to speak of the character and effect of 
 a bill of lading, and used this language: " A bill of lading is an 
 instrument well known in commercial transactions, and its 
 character and effect have been defined by judicial decisions. 
 In the hands of the holder it is evidence of ownership, special 
 or general, of the property mentioned in it, and of the right to 
 receive said property at the place of delivery. Notwithstand- 
 ing it is designed to pass from hand to hand with or without 
 
 1 Hiesbell v. Farmers' Bank, 89 Pa. ^ 105 U. S. 7. 
 St. lo5; Dows v. National Exchange 
 Bank, 91 U. S. 618, 629. 
 
 215 
 
§ 25-1:.] PLEDGE OE PAWN. [PAET II. 
 
 indorsement, and it is eiHcacious for its ordinary purposes in 
 the Iiands of the holder, it is not a negotiable instrument or 
 obligation in the sense that a bill of exchange or a promissory 
 note is. Its transfer does not preclude, as in those cases, all in- 
 quiry into the transaction in which it originated because it has 
 come into the hands of persons who have innocently paid value 
 for it; the doctrine of honafide purchasers only applies to it in 
 a limited sense. It is an instrument of a twofold character; it 
 is at once a receipt and a contract. In the former character it 
 is an acknowledgment of the receipt of property on board his 
 vessel by the owner of the vessel. In the latter it is a contract 
 to carr}^ safely and deliver. The receipt of the goods lies at 
 the foundation of the contract to carry and deliver." 
 
 § 254. Delivery by the pledgor. — It follows from what has 
 been said that the pledgor, to create a pledge of the bill of 
 lading, or the property which it represents, must deliver the 
 bill with such transfer or assignment of the same as will be 
 necessary to give to the pledgee possession and control of the 
 property represented by the bill of lading. Whatever is neces- 
 sary to be done in order to bring this about must be done 
 in order to create the pledge. By usage and custom it has 
 come to be recognized as legal, that a bill of lading may be 
 transferred by indorsement m blank by the owner, and deliver- 
 ing the same to the transferee, if it be the intention of the par- 
 ties by such delivery to make the transfer. Hence it may be 
 said that the owner of the property, or the consignee ot the 
 property, if it is consigned to another person than the owner, 
 may pledge the property by indorsing the bill of lading in 
 blank and delivering it to the pledgee with the intention of 
 creating the pledge. And so it has been held that a pledge ot 
 the bill of lading, drawn to the order of the pledgor, may be 
 created by mere delivery to the pledgee. 
 
 In Flrd Nut. Bunl- v. Dcarhom^ it was held: "The dehf- 
 ery by an owner of goods of a common carrier's receipt for 
 
 1 11") jrass. 219. The following au- veyance, and contained tlie words 
 
 thorities are cited in the opinion: "this receipt is not ti'ansferable," it 
 
 Tuxworth V. Moore. 9 Pick. 347: Fet- was held that the transfer by deliv- 
 
 typlace v. Dutch, 13 Pick. 388; Whip- ery vested a special property in the 
 
 pie V. Thayer, 16 Pick. 25; National transferee. Peters v. Elliott, 78 HI. 
 
 Bank v. Crocker, 111 Mass. 1G3. 321 ; Tiedeman v. Knox, 53 Md. 613. 
 
 Where the bill designated no con- In the latter case it was held that 
 
 2ia 
 
CH. in.] NON-NEGOTIABLE AND QUASI-NEGOTIABLE. [§ 2.55. 
 
 them, not negotiable in its nature, as security for an advance 
 of money, with the intent to transfer the property in the 
 goods, is a symbolical delivery of them, and vests in the per- 
 son making the advance a special property in the goods suffi- 
 cient to maintain replevin against an otBcer who afterwards 
 attaches them upon a writ against the general owner." It has 
 also been held "that a bill of lading stands in place of the 
 property covered by it. It represents the property. When 
 the right of possession is changed by a sale or pledge of the 
 property itself, the transfer of the bill of lading operates as a 
 change of possession of the property, the carrier in the mean- 
 time being the custodian for the real owner or party in inter- 
 est. "While the bill of lading is not a negotiable instrument 
 in the sense in which a bill of exchange or promissory note is 
 negotiable, yet, as the representative of a valuable commodity, 
 it is assignable to the party entitled to control the possession 
 of that commodity to the same extent and for the same pur- 
 poses as the property itself would be, if corporeal, personalty. 
 Inasmuch, therefore, as these instruments are capable of per- 
 forming very important functions in commercial transactions, 
 innocent holders thereof for value ought to receive the same 
 protection as if they held possession of the property itself." 
 
 § 255. Mere delivery of the bill suHicleut. — A mere in- 
 dorsement of the bill of lading wathout delivery would not 
 transfer the property.^ Delivery seems to be an absolute requi- 
 site to the creation of a pledge of the property. The impor- 
 tant essential in this class of cases is that there be evidence 
 of intention upon the part of the pledgor, or in case of a bill 
 of lading on the part of the owner or consignee, to deliver the 
 property represented in the bill of lading; that intention is 
 evidenced by the delivery of the bill for the purpose of creat- 
 ing the pledge or delivering the property ; and it is held that a 
 mere delivery of the bill of lading, with intention by it to de- 
 liver the property, or to create a pledge, is sufficient, and that 
 a written indorsement is not absolutely necessary.^ In this 
 
 "where one paid a draft, receiving ment of a bill of lading without a 
 the bill as security, the title to the delivery of it does not transfer the 
 goods became vested in him." property in the goods." Lickbarrow 
 
 1 In Buffington v. Curtis, Hi Mass.' v. Mason, 2 T. R, 63. 
 538, it was held: "The mere indorse- 2 Mich. Cent. R. Co. v. Philips, 60 
 
 217 
 
§ 255. j PLEDGE OE PAWN. [PAET II, 
 
 case the court say: "In legal effect and for the purpose of 
 explaining what is to be done with the merchandise, there can 
 be no substantial difference between a bill of lading and a car- 
 rier's receipt. We have in this case an intent of the general 
 owners of the flour to make use of it as a security for an ad- 
 vance of money from the plaintiff; a delivery of the bill of 
 lading in .pursuance of that intent, and a valuable and executed 
 consideration in the discounting of the draft. The fact that 
 the goods were in the custody of the defendant would not pre- 
 vent this arrangement from having the effect to transfer the 
 title of consignors to plaintiffs. Whether it should be regarded 
 as a sale, a pledge, or a mortgage, there was a sufficient dehv- 
 ery to give to the plaintiffs a special property which they could 
 enforce by suit against any wrong-doer." 
 
 In Merchants' Banh v. X. da R. R. T. Co. (cited in the note), 
 the court say: " The rule is well settled that property or goods 
 shipped by a bill of lading drawn to order maybe transferred 
 by delivery to a third person without any indorsement. Bills 
 of lading are choses in action, and no rule is better established 
 than that instruments of this character may be transferred for 
 a valuable consideration by delivery onlj'." But it has been 
 held, where the bill of lading makes the goods deliverable to 
 
 111. 190; Western Ry. Co. v. Wagner, what such interest is. The fact that 
 
 6.) 111. 197; Allen v. Williams, 12 the state statute provides for the 
 
 Pick. 297: Green Bay First Nat. Bank transfer of bills of lading by in- 
 
 V. Dearborn, 115 Mass. 219; Jefferson- dorsement does not restrirt that 
 
 ville R. Co. V. Irvin, 46 Ind. 180; transfer to such method. Where a 
 
 Becker v. Hallgarten, 86 N. Y. 167, contract for sale of goods shows that 
 
 175; Rochester v. Jones. 4 N. Y. 497, they were to be delivered at theter- 
 
 h'i Am. Dec. — ; Merchants' Bank v. mination of a carrier's lien, their de- 
 
 N. R. R. T. Co.. 69 N. Y. 376, 379-99: livery by the seller to the carrier. 
 
 City Bank v. Railroad Co., 44 N. Y. though consigned to the buyer, will 
 
 136; Holmes v. German Security not pass the title, and a transfer of 
 
 Bank, S7 Pa. St. 525; Holmes v. the bill of lading by the seller will 
 
 Bailey, 93 Pa. St. 57; Richardson v. vest the transferee with the right of 
 
 Nathan, 167 Pa. St. 513; Schrafif v. possession of the goods. But where 
 
 Meyer, 133 Mo. 428. 43 Cent. Law delivery to the carrier operates under 
 
 Jour. 367. In the latter case the the contract of sale to pass title to 
 
 court held: "The transfer of a bill the buyer, the retention and transfer 
 
 of lading by delivery without in- of the bill of lading by the seller will 
 
 dorsement carries with it all the carry no right in the goods, though 
 
 rights of the transferrer in the by statute the carrier is forbidden to 
 
 goods represented by it, and extrin- deliver the goods without the presen- 
 
 sio evidence is admissible to show tation of the bill of lading. 
 
 218 
 
OH. III.J NON-NEGOTIABLE AND QUASI-NEGOTIABLE. [§ 256. 
 
 the person named as consignee, and there are no words of ne- 
 gotiability, then in such a case the mere delivery of the instru- 
 ment, when it is intended to have the effect to transfer the 
 title to the goods described in it, will be sufficient to transfer 
 the title. And where the bill of lading is drawn to order, this 
 will not prevent a transfer of the property to a third person 
 by a mere delivery of the bill.^ 
 
 In Emery Sons v. Irwin Nat. Bank^ the court say: "By the 
 rules of commercial law, bills of lading are regarded as sam- 
 ples of the property therein described, and delivery of such 
 bill by one having an interest in, or a right to control, the 
 property, is equivalent to a delivery of the property itself. The 
 consignor who has reserved the jus disponendi may effectu- 
 ate a sale or pledge of the property consigned by delivery 
 of the bill of sale to the purchaser or pledgee, as completely 
 as if the property were in fact delivered. If such transfer of 
 the bill of lading be made after the property has passed into 
 the actual possession of the consignee, the transferee of the bill 
 takes it subject to any right or lien which the consignee may 
 have acquired by reason of his possession. But if the bill of 
 lading be transferred by way of sale or pledge to a third per- 
 son before the property comes into the possession of the con- 
 signee, the consignee takes the property subject to any right 
 which the transferee of the bill may have acquired by the sym- 
 bolical delivery of the property to him." 
 
 § 256. Bill of lading to consignee with draft attaclied .— It 
 is a customary course of business for the shipper and owner of the 
 property to consign the property shipped to some person upon 
 payment of draft attached, intending thereby to consign the 
 property to such person as security for the amount paid upon 
 the draft, or to transfer to him the title of the property. Now, 
 if in such case the consignee accepted and paid the draft accom- 
 
 1 City Bank V. R. W. & O. R Co., Thedeliveryof the bill of lading with 
 
 44 N. Y. 136. The court held that intent to pass title has that effect, 
 
 •■ delivery of a bill of lading within- although it be not payable to 'as- 
 
 tent to pass the title has that effect, signs,' or, if so payable, it be not in- 
 
 although the bill is drawn to order dorsed." Par. Mer. Law, 346; 2 
 
 and is not indorsed." The court say: Kent's Com. 307. 
 '■ I suppose, however, that the title ^ 25 Ohio St. 360. A full discussion 
 
 to the wheat passed to the plaintiff may be found in Neill & EUingham 
 
 by the delivery of the bill of lading, v. Produce Co., 41 W. Va. 37. 
 
 319 
 
§ 257.] PLEDGE OE PAWK. [PAET II. 
 
 panying the bill of lading, the title of the property would be 
 vested in hiin to the extent of the intention of the parties, and 
 the consignor could not defeat his interest in the property by 
 assignment to a third person ; but if the consignee refuse to 
 accept the draft, then in such case the consignor might confer 
 the title to the property upon some other person, or might 
 pledge the same as security.' 
 
 § 257. A bill of lading, how far negotiable.— As we have 
 seen, a bill of lading is a contract, among other things, whereby 
 the carrier engages to deliver the goods to the consignee men 
 tioned in the bill. As has been said, bills of lading are re- 
 garded as so much cotton, grain, iron or other articles of 
 merchandise described in them. The merchandise is very often 
 sold or pledged by the transfer of the bills which cover it. 
 But they are not negotiable to the extent that bills of exchange 
 and promissory notes are negotiable; they are, in other words, 
 very different from bills of exchange and promissory notes, an- 
 swering a different purpose and performing different functions. 
 And it has been held that even the statute of a state which 
 undertakes to make them negotiable by indorsement and de- 
 livery, or negotiable in the same manner as bills of exchange 
 and promissory notes are negotiable, thus undertaking to 
 change totally their charr^.cter and put them in all respects 
 upon the same footing as negotiable bills and notes, would not 
 be sufficient to make them negotiable in the sense that com- 
 mercial paper is negotiable by the law merchant. This ques- 
 tion was before the supreme court of the United States in Shaw 
 V. Railroad Co? Strong, J., delivering the opinion, said : " It can- 
 
 lln Marine Bank v. Wright, 48 the title continues unimpaired, and 
 N. Y. 1, it was held: " Where the con- upon the receipt by the consignee of 
 signor of property, upon its shipment the property and its conversion, he 
 and before delivery, draws a bill of is liable to the bank for the money 
 exchange upon the consignee and advanced upon it."' Michigan Cent 
 procures the same to be discounted Ry. Co. v. Phillips, 60 111. 190; Illinois 
 at a bank upon the security of a bill Cent. Ry. Co. v. Southern Bank, etc., 
 of lading which is transferred and 41 111. App. 287; Chicago Fifth Nat 
 delivered with it, the bank acquires Bank v. Bayley, 11.5 Mass. 228;Hatha- 
 title to the property described in the way v. Haynes, 124 Mass. 311; Corn- 
 bill of lading, conditional upon the meroial Bank v. Pfeiffer, 108 N. Y. 
 acceptance of the draft; upon such 242; Peters v. EUiott, 78 111. 321. 
 acceptance tlie title passes to the ^ jqi U. S. 557, 565. 
 acceptor; but upon refusal to accept, 
 
 220 
 
OH. III.] NON-NEGOTIABLE AND QUASI-NEGOTIABLE. [§§ 258, 259. 
 
 not be, therefore, that the statute which makes them negotiable 
 by indorsement and delivery, or negotiable in the same man- 
 ner as bills of exchange and promissory notes are negotiable, 
 intended to change totally their character or put them in all 
 respects on the same footing of instruments which are the repre- 
 sentatives of money, and charge the negotiation of them with 
 all the consequences which usually attend or follow the nego- 
 tiation of bills and notes. Some of these consequences would 
 be very strong, if not impossible; such as the liability of in- 
 dorsers, the duty of demand ad diem, notice of non-delivery by 
 the carrier, etc., or the loss of the owner's property by the 
 fraudulent assignment of a thief. If these were intended, surely 
 the statute would have said something more than merely make 
 them negotiable by indorsement. No statute is to be construed 
 as altering the common law further than its words import. It 
 is not to be construed as making any innovation upon the com- 
 mon law which it does not fairly express." Very many of the 
 states have undertaken by statute to introduce important 
 changes of the common-law doctrine upon this subject. 
 
 § 258. Who are bona fide holders of bill of lading. — It is 
 a universal rule, that one to be a hona fide holder must have 
 paid value. So it may be said first of all, that a ionafide holder 
 of the transferred bill of lading must have paid value for the 
 property thus transferred. The transfer must be in good faith 
 and without fraud on the part of or to the knowledge of the 
 transferee; and more than that, it must be without the notice 
 or knowledge of facts or circumstances, shown either upon the 
 face of the bill or by extrinsic facts, that would lead a reason- 
 ably cautious man to investigate, and if investigated would 
 lead to the discovery of such fraud or defects as would vitiate 
 the transaction. One cannot be held to be ignorant of facts 
 which by reasonable prudence he should know. 
 
 § 259. Rights of bona fide holders.— The bill of lading it- 
 self, as agreed by all authorities, simply represents property, 
 and its transfer is but a symbolical transfer and delivery of 
 property. It therefore follows that the transfer of the bill of 
 lading to a lona fide purchaser, or pledgee, is but a transfer 
 of the property represented by the bill. The transaction can 
 confer no greater right or privilege upon the transferee than 
 would be conferred by dealing directly with the property 
 
 231 
 
§ 200.] PLEDGE OK PAWN. [PAET II. 
 
 without the use of the symbol — the bill of lading. For, as we 
 have seen, the bill of lading is not a negotiable instrument in 
 the sense and to the extent of promissory notes and bills of 
 exchange; it does not represent money, but simply represents 
 the specific property described in it. 
 
 In Stollenwerclc v. Thacher'^ it was said: "A bill of lading, 
 even when in terms running to order or assigns, is not negoti- 
 able like a bill of exchange, but a sjanbol or representative of 
 the goods themselves; and the rights arising out of the transfer 
 of the Ijill of lading correspond not to those arising out of the 
 indorsement of a negotiable promise for the payment of money, 
 but to those arising out of a delivery of the property itself 
 under similar circumstances." The holder of a bill of lading, 
 either as indorsee, assignee or otherwise, cannot, unless by stat- 
 ute the negotiability is enlarged, by transfer of the bill of lad- 
 ing, even to a honafide purchaser or pledgee for value, confer 
 any greater right or better title than he himself has; and so 
 if the transferrer of the bill has no title he can confer none upon 
 his transferee.^ 
 
 § 260. Bona Me holder from agent of owner or one hav- 
 ing apparent title. — A iona fide purchaser or pledgee obtain- 
 ing his interest in the property through the purchase from, or 
 pledge by the agent of, one claiming to be the owner, would 
 stand in no better position than he would if he had purchased 
 or obtained his pledge from the owner himself ; and if it should 
 transpire that the transferrer was the agent of the owner, and 
 had the property only for a specific purpose and was not a 
 general agent of the owner, and the pledge or transfer was 
 not in the execution and along the line of the ordinary busi- 
 ness of the agency, or the carrying out of the specific purpose, 
 then in such case no title or legal interest would be conferred 
 upon the hona fide holder; but if the owner of the property 
 had conferred upon the person from whom the lona fide pur- 
 
 1 115 Mass. 224; Shaw v. Railway Am. Dec. 350; Evansville R. Co. -■ 
 
 Co., 101 U. S. 557; Dow v. Green, 24 Irwin, 84 Ind. 457; Farmers' Nat. 
 
 N. Y. 638. Bank v. Logan, 74 N. Y. 568; Saltus 
 
 2 Pollard V. Vinton, 105 U. S. 8; v. Everett, 20 Wend. 367. 32 Am. Dec. 
 Jasper Trust Co. v. Kansas City R. 541 ; Farmers', etc. Nat. Bank t. Has- 
 Co., 99 Ala. 416, 42 Am. St. Rep. 75; selton, 78 N. Y. 104: Shaw v. Rail- 
 Haas V. Kansas City R. Co., 81 Ga. way Co., 101 U. S. 557. 
 792; Burton v. Curyea, 40 111. 320, 89 
 
CH. III.J NON-NEGOTIABLE AND QUASI-NEGOTIABLE. [§ 260. 
 
 chaser or pledgee had obtained his interest the apparent right 
 of property, as owner, or the apparent right to dispose of the 
 property, then in such case the owner would be estopped from 
 claiming title as against such hona fide purchaser or pledgee. 
 This doctrine rests upon the principle of estoppel; the owner 
 being estopped from asserting any title in himself that would 
 be antagonistic to the title or interest he has conferred. " A 
 iona fide holder can only resist the claim of the owner of the 
 property by establishing an equitable estoppel founded upon 
 the acts of the owner. It is the application of that rule by 
 which, as between two persons equally innocent, a loss result- 
 ing from the fraudulent acts of another shall rest upon him 
 by whose acts and omissions the fraud has been made possible. 
 This rule, general in its terms, only operates to protect those 
 who, in dealing with others, exercise ordinary caution and pru- 
 dence, and who deal in the ordinary way and in the usual 
 course of business, and upon the ordinary evidences of right 
 and authority in those with whom they deal, and as against 
 those who have fraudulently conferred upon others the usual 
 evidences or indicia of ownership, or an apparent authority to 
 deal with and dispose of it. In such case, for obvious reasons, 
 the law raises an equitable estoppel, and, as against the real 
 owner, declares that the apparent title and authority which 
 exists by his act or admission shall quo ad persons acting and 
 parting with value upon the faith of it, stand for and be re- 
 garded as the real title and authority. Two things must concur 
 to create an estoppel by which an owner may be deprived of 
 his property by the act of a third person, without his assent, 
 under the rule now considered: (1) The owner must clothe the 
 person assuming to dispose of the property with the apparent 
 title to or authority to dispose of it ; and (2) the person alleg- 
 ing the estopel must have acted and parted with value upon 
 the faith of such apparent ownership or authority, so that he 
 will be the loser if the appearances to which he trusted are not 
 real. In this respect it does not differ from other estoppels 
 in pais." ^ 
 
 1 Barnard v. Campbell, 55 N. T. 456. the owner of goods sells the same on 
 In the case of Newhall v. C. P. E. R. credit and ships them on a railroad 
 Co., 51 Cal. 345, it was held that "if to the vendee as consignee with bills 
 
 223 
 
2G1.J 
 
 PLEDGE OE PAWN. 
 
 [part II. 
 
 The Waeehodse Eeceipt. 
 
 § 261. The warehouse receipt as collateral. — The ware- 
 house receipt is the evidence that certain property therein de- 
 scribed is in the care and custody of the warehouseman, held 
 subject to the order of the bailor or owner, and like the bill of 
 lading stands as a symbol for the property itself. It repre- 
 sents grain or cotton, or whatever property it describes, and 
 the fact of its possession is evidence of ownership of the prop- 
 erty. For, as we have seen,' in due course of business the 
 warehouseman who is the custodian, on receipt of the property 
 for storage, issues the receipt or evidence of the possession of 
 the property to the bailor, and by it he says to the world that 
 upon the delivery of this receipt to him, and payment of 
 charges for storage, he will deliver to the rightful owner, or 
 holder of the receipt, the property itself. Then we may say of 
 this, as has been said of other such like paper, the warehouse 
 receipt, W'hile not negotiable to the extent of standing for a 
 sum of money, or in that it may pass from hand to hand 
 
 of lading in the usual form, and 
 while the goods are in transit the 
 -vendee becomes insolvent, and the 
 ■vendor notifies the railroad company 
 that he stops the goods; and after 
 such notifioatioh the vendee indorses 
 the bill of lading in the usual course 
 of business to a third person, who in 
 good faith, and without knowledge 
 of the insolvency, or of such notifica- 
 tion, advances money thereon, to be 
 repaid out of the proceeds of the 
 goods to be sold by him at auction, 
 the assignee, on tender of freight 
 and charges, is entitled to receive 
 the goods from the carrier, or against 
 the vendor. The court in the opin- 
 ion says that if the bill of lading is 
 assigned, and the legal title passes 
 to a bona fide purchaser for a valu- 
 able consideration before the right 
 of stoppage is exercised, the lien of 
 the vendor ceases as against the as- 
 signee, on the well known principle 
 that a secret trust will not be en- 
 
 forced as against a bona fide holder 
 for value of the legal title. In such 
 case, if the equities of the vendor 
 and assignee be considered equal 
 (and this is certainly the light most 
 favorable to the vendor in which the 
 transaction can be regarded), the rule 
 applies that where the equities are 
 equal the legal title will prevail. 
 The vendor has voluntarily placed in 
 the hands of the vendee a muniment 
 of title, clothing him with the appar- 
 ent ownership of the goods; and a 
 person dealing with him in the usual 
 course of business, who takes an as- 
 signment for a valuable considera- 
 tion, without notice of such circum- 
 stances as render the bill of lading 
 not fairly and honestly assignable, 
 has a superior equity to that of the 
 vendor asserting a recent lien, known 
 perhaps only to himself and the ven- 
 dee." 
 1 Ante, § 179. 
 
 324 
 
CH. III.J NON-NEGOTIABLE AND QUASI-NEGOTIABLE. [§ 262. 
 
 as commercial paper, and subject to all the rules and regula- 
 tions imposed upon such like paper by the law merchant, it is at 
 least quasi-negotisihle, and enters into large business transac- 
 tions, because, by the custom of trade, it stands for the prop- 
 erty or thing that is stored with the warehouseman, and will 
 be delivered upon the due presentation of the receipt. It may, 
 however, be said that this receipt has a property value in it- 
 self, not represented in money, but by the property or chattels, 
 which are in storage. Therefore the warehouse receipt may 
 be the subject of a pledge. 
 
 § 262. Delivery of the receipt required — Indorsement in 
 blank. — To the making of a valid pledge, delivery and ac- 
 ceptance are requisites. Usually it is duly assigned by the 
 bailor named in the receipt, to the person who is the pledgee; 
 but like the bill of lading it is not necessary that there should 
 be an assignment of the receipt fully and completely written 
 out. Indorsement in blank with actual delivery is enough; 
 for the rightful holder may write over the indorsement in 
 blank a full and complete assignment, and in this way con- 
 vert the property which it represents to his possession. Indeed, 
 this is the mode most usually adopted when it is desired to 
 pledge a warehouse receipt as collateral security ; for in such 
 case it is not the object or desire of the parties to disturb the 
 custody of the property itself, or that the pledgee should take 
 actual manual possession of the property. The receipt may 
 represent a large quantity of grain, for example, stored in a 
 warehouse; the object of the pledgor is simply to use this re- 
 ceipt, the evidence of his ownership, as security for a loan of 
 money, or as collateral to his note or other obligation; he has 
 no intention of transferring the title to the property. Upon 
 payment of the debt, or fulfillment of the obligation, it is in- 
 cumbent upon the pledgee to return the receipt which is the 
 subject of the pledge ; and so, because of the convenience in 
 doing business, the custom has grown up to simply transfer 
 to the pledgee the receipt for the stored property indorsed 
 in blank, to be returned upon the full performance of the ob- 
 ligation for which it is pledged, and generally without any as- 
 signment being fully written over the indorsement in blank ; 
 for the delivery of the receipt thus indorsed, with the intention 
 15 235 
 
§§ 263, 26i.J PLEDGE OE PAWN. [PAET 11. 
 
 of pledging the same, has the same efifect as the delivery of 
 the property itself.^ 
 § 263. Pledge created by mere delivery of receipt.— 
 
 There is no particular form necessary for the transfer of the 
 receipt. The mere delivery of the receipt, with the intention 
 of creating the pledge as between the parties, is enough to create 
 an equitable lien, and the pledgee can hold the property de- 
 scribed in the receipt. The owner and pledgor would be estopped 
 from asserting any right inconsistent with the pledge. 
 
 § 264. Statutes of states with reference to pledgee of 
 warehouse receipt. — Many of the states have enacted stat- 
 utes regulating the transfer of warehouse receipts, and it will 
 be necessary to examine the statute of the particular state where 
 the transaction occurs. We have not the space to notice and 
 quote these statutes here. It may be said, however, with ref- 
 erence to these statutes, that although they may purport to 
 make the warehouse receipt negotiable, all that can in fact be 
 done is to cut off any defense which the indorser may have. 
 The holder of the receipt takes no better title than he would 
 had the goods and chattels described been actually deliv- 
 ered to him ; and to allow the transfer of the receipt merely 
 to pass an absolute title without this limitation would enable 
 one fraudulently depositing the goods of another to dispose of 
 them and confer a valid title, even as against the true owner, 
 by obtaining a warehouse receipt in his own name. Certainly 
 this would be against public policy.^ 
 
 1 Jones on Pledges, sec. 280. See the goods, and may be used upon a 
 cases cited. Freiburg v. Dreyfus, 135 sale as a symbolical delivery. 3 Ellis 
 U. S. 478; Burton v. Curyea, 40 IlL & Bl. 632. A transfer of the receipt 
 330. In Citizens' Bank v. Peacock, operates as a deli very of the goods so 
 103 Ga. 171, 29 S. E. 752, it was held long as the goods remains inthepos- 
 that the delivery of the warehouse session of the warehouseman. In 
 receipt for cotton Is in effect deliver- fact, the possession of the receipt is 
 ing the cotton itself. in legal effect the possession of the 
 
 2 Warehouse receipts are not nego- goods, and enables the holder of the 
 tiable instruments in a commercial goods to transfer his title to the goods 
 sense. And m the absence of a right without an actual manual deUrery 
 of property in the consignee and a of the goods themselves. They did 
 power to sell, the consignee, by in- not add to his title, they simply gave 
 dorsement. cannot confer title to the him the possession. Lickbarrow v. 
 property as against the jtrue owner. Mason, Smith's Lead. Cas. 755; See- 
 Dows V. Perrin, 16 N. Y. 333. Ware- ond Nat. Bank v. Walbridge, 19 Ohio 
 house receipts at most only represent St. 419. 
 
 236 
 
OH. in.] NON-NEGOTIABLE AND QUASI-NEGOTIABLE. [§§ 265-267. 
 
 § 265. If the receipt is made to bearer. — It goes with- 
 out saying that if the receipt stipulates that the property is to 
 be delivered to bearer, then, in order to transfer it, it would 
 not be necessary to indorse the receipt, but the mere delivery 
 of the receipt would be sufficient to transfer the title to the 
 property if it was made with that intent. It therefore follows 
 that such a receipt may be made the subject of a pledge by 
 merely delivering the receipt with intention to pledge it as 
 collateral security for the payment of the debt or the fulfilling 
 of the obligation.^ 
 
 Insueanoe Policies. 
 
 § 266. Insurance policies as collateral. — An insurance pol- 
 icy that is in force has a property value, depending, of course, 
 very largely upon the stipulations in the policy ; and such a 
 policy is often made the subject of a pledge; as, for example, a 
 fire insurance policy is often assigned with a real-estate mort- 
 gage given upon the same premises; and a stipulation written 
 upon the policy with the consent of the company and by its 
 agent, making any loss payable to the mortgagee to the extent 
 that his interest may appear, creates a pledge of the benefici- 
 ary interest of the policy. A life insurance policy, fully paid 
 up or otherwise, is often pledged to the lender of mone}'', or as 
 security for the performance of an obligation by the owner of 
 the policy ; and as we shall see, the pledgee thereupon obtains 
 an interest in the policy which the company must recognize. 
 The fact of the policy being the subject of a pledge is not as 
 troublesome as is the procedure in given cases to create the 
 pledge and determine the liability. 
 
 § 267. Delivery a requisite. — A pledge, from its very 
 
 nature, as we have often seen, requires a delivery and accept- 
 ance for the purpose and with the intention of creating a 
 pledge. The same rule obtains in the pledging of policies 
 of insurance ; the pledgee must have the property pledged in 
 his possession and control, and a mere promise to deliver the 
 property is not enough. If such a promise were founded upon 
 a valuable consideration, a contract to pledge might furnish a 
 cause of action if the pledgor failed to perform his contract ; 
 but that question we are not discussing. The promise to 
 
 1 Jones on Pledges, sec. 301. 
 
 227 
 
§ 268.] PLEDGE OE PAWN. [PAET II. 
 
 pledge does not create a pledge; the pledgee must have pos- 
 session of the property. And so it has been held that the 
 mere promise of a policy as collateral is not a good delivery.' 
 
 The vice-chancellor, in Spencer v. Clark (cited and quoted 
 from in the note), calls attention to the familiar doctrine 
 "that as between two persons whose equitable interests are of 
 precisely the same nature and quality, and in that respect 
 precisely equal, the possession of the deeds gives the better 
 equity." And so the authorities and adjudicated cases on this 
 subject are replete with the doctrine that to effect a valid 
 pledge of a policy of insurance, delivery and acceptance, with 
 the intention of creating the pledge, is an absolute requisite; 
 except, of course, in cases where a regular assignment has been 
 fully made for the purpose of pledging the policy, and the 
 company has been notified, and a transfer made on their books; 
 or in case the transfer has been made, the company notified, 
 and a custodian agreed upon by all the parties for the purpose 
 of creating the pledge. But there must be something that will 
 operate to place the policy under the obligation of the pledge, 
 and in the control and custody either of the pledgee or his 
 agent. 
 
 § 268. How delivered. — There is no question that if 
 
 the policy is assigned and delivered to the pledgee, the com- 
 pany notified, and the assignment entered upon its books, for 
 the purpose of creating a pledge, that a valid pledge of the 
 policy is made ; and in case of loss, recovery could be had 
 
 1 Spencer v. Clark, L. R. 9 Ch. piv. to B. an equitable mortgage of it. 
 
 137. The holder of a policy of insur- B. gave to the company notice of his 
 
 ance on his own life deposited it with loan and memorandum of deposit,. 
 
 A. by way of equitable mortgage to and frequently applied to the policy- 
 secure a loan. A. retained the policy, holder for the policy; but the policy- 
 but gave no notice to the company; holder made various excuses for not 
 
 B. afterwards, in ignorance of this handing it over, and died leaving it 
 prior mortgage, agreed to loan in the possession of A. Held, that 
 money to the policy-holder upon a the circumstances of the case were 
 deposit of the same policy, and the such as to put B. on inquiry as to the 
 policy-holder alleging that he had time of the loan, and to fix him with 
 left the policy at home by mistake, constructive notice of A.'s security, 
 and promising forthwith to deliver and that the title of A. as in posses- 
 it to B., took the loan and assigned sion of the policy must prevail over 
 the memorandum that he had de- that of B., although B. did, and A. 
 posited the policy with B., and then did not, give notice to the company, 
 undertook, on request, to execute 
 
 238 
 
OH. III.] NON-NEGOTIABLE AND QUASI-NEGOTIABLE. [§ 269. 
 
 against the company by the pledgee. A very much less formal 
 transfer, however, is sufficient. The courts have held that a 
 pledge of the policy may be created by indorsement in blank 
 and delivery. 
 
 § 269. By indorsement in blank and delivery. — An in- 
 dorsement in blank, and delivery and acceptance for the pur- 
 pose of creating a pledge, 'has been held to be sufficient. In 
 the case of Norwood v. Guerdon ' the supreme court of Illinois 
 very emphatically laid down this doctrine. That was a case 
 where the husband had procured his life to be insured for the 
 benefit of his wife. 8he afterwards indorsed the policy to him 
 in blank, left it in his possession, and he secured a loan upon 
 the policy, pledging it as collateral security. The court say: 
 " Armed with this evidence of his right to pledge the instru- 
 ment, he goes upon the money market and does pledge it, first 
 to one person and then to another, and by such pledge raises 
 money and pays his debts. It is not in evidence, and we can- 
 not presume, that the wife ever had any interest in this policy 
 from having contributed from her separate estate toward the 
 payment of the premium. . . . But whatever her interest, 
 by indorsing the policy in blank and delivering it to her hus- 
 band she clothed him with all necessary evidence of a power 
 to pledge the instrument by filling up her blank assignment, 
 and we should be opening a door to the grossest frauds if we 
 were to permit the wife, after having done all this, to come 
 forward and claim that her husband had no right to assign the 
 instrument. These assignments are valid, and are recognized 
 by the companies. They are also of daily occurrence in the 
 way of collateral security; and where a policy is made payable 
 to the wife, and she indorses it in blank, and the husband 
 pledges it, we are wholly at a loss to conceive upon what 
 ground it can be claimed that such an assignment is not valid 
 in a court of equity." The indorsement in blank and the de- 
 livery of the policy to secure the debt, intending it for security, 
 the giving up of the amount loaned to the pledgor, or the re- 
 ceiving it and furnishing the consideration by the pledgee, will 
 make out a case of pledge, and will give to the pledgee all the 
 title, right and privileges to the extent of his pledge which the 
 pledgor had. 
 
 1 60 111. 253. 
 229 
 
§ 270.] pledge oe pawn. [paet ii. 
 
 Notes, Bonds, Mortgages. 
 
 ? 270. Notes and mortgages, and bonds and mortgages.— 
 
 A note or bond secured by a mortgage carries with it the mort- 
 gage security; so when the note by indorsement and delivery, 
 or by mere delivery when indorsed in blank or payable to 
 bearer, is transferred, it carries with it in equity the mortgage 
 security. It is not necessary that there should be an assign- 
 ment of the mortgage; the indorsee of the note is entitled to 
 the benefit of the mortgage unless there is special provision to 
 the contrary. 
 
 In Carpenter v. Longan ^ it was held that " the assignment 
 of a note underdue raises the presumption of the want of notice, 
 and this presumption stands until it is overcome by sufficient 
 proof. The case is a different one from what it would be if 
 the mortgage stood alone, or the note was non-negotiable, or 
 had been assigned after maturity. The question presented for 
 our determination is whether an assignee, under the circum- 
 stances of this case, takes the mortgage a» he takes the note, 
 free from the objections to which it was liable in the hands of 
 the mortgao'ee. We hold the affirmative. The contract as re- 
 gards the note was that the maker should pay it at maturity 
 to any bona fide indorsee, without reference to any defenses to 
 which it might have been liable in the hands of the payee. 
 The mortgage was conditioned to secure the fulfillment of that 
 contract. To let in such a defense against such a holder would 
 be a clear departure from the agreement of the mortgagor and 
 mortgagee, to which the assignee subsequently, in good faith, 
 became a party. If the mortgagor desired to reserve such an 
 advantage, he should have given a non-negotiable instrument. 
 If one of two innocent persons must suffer by deceit, it is more 
 consonant to reason that he who ' puts trust and confidencein 
 
 1 16 Wall. 271 ; Ober v. Gallagher, the benefit of the deed of trust given 
 
 93 U. 8. 199; New Orleans Canal and to secure them." Powell on Mort- 
 
 Banking Co. v. Montgomery, 95 U. S' gages, 90S; 1 Hill, on Mortgages, 572 
 
 16. "In the absence of proof to show Reeves v. Scully, Walker's Ch. 248 
 
 when promissory notes were trans- Bloomer v. Henderson, 8 Mioh. 395; 
 
 ferred by the bailee, the law presumes Cicotte v. Gagnier, 3 Mich. 881 
 
 that they were, when underdue, Pierce v. Faunce, 47 Me. 507; Taylor 
 
 taken in good faith by the transferee v. Page, 6 Allen, 86; Cornell v.Hioh- 
 
 without notice of any infirmity at- ens, 11 Wis. 368; Croft v. Bunster,9 
 
 taching to tbem, and he is entitled to Wis. 457. 
 
 SO 
 
CH. III.] NON-NEGOTIABLE AND QUASI-NEGOTIABLE. [§ 270. 
 
 thedeceivershouldbealoser rather than a straager.' . . . The 
 transfer of the note carries with it the security, without any- 
 formal assignment or delivery, or even mention of the latter. 
 If not assignable at law, it is clearly so in equity. "When the 
 amount due on the note is ascertained in the foreclosure pro- 
 ceeding, equity recognizes it as conclusive, and decrees accord- 
 ingly. Whether the title of the assignee is legal or equitable 
 is immaterial. The result follows irrespective of that ques- 
 tion. The process is only a mode of enforcing a lien. . . . 
 All the authorities agree that the debt is the principal thing and 
 the mortgage an accessory. Equity puts the principal and 
 accessory upon a footing of equality, and gives to the assignee 
 of the evidence of the debt the same rights in regard to both. 
 There is no departure from any principle of law or equity in 
 reaching this conclusion. There is no analogy between this 
 case and one where a chose in action standing alone is sought 
 to be enforced. The fallacy which lies in overlooking this dis- 
 tinction has misled many able minds, and is the source of all the 
 confusion that exists. The mortgage can have no separate ex- 
 istence. When the note is paid the mortgage expires. It can- 
 not survive for a moment the debt which the note represents. 
 This dependent and incidental relation is the controlling con- 
 sideration, and takes the case out of the rule applied to choses 
 in action, where no such relation of dependence exists. Acces- 
 sorium non ducit, sequiiiir ^principale." 
 
 If the debt is evidenced by a non-negotiable bond the case 
 would be different as to equities, and the pledgee would be in 
 the same position as though a non-negotiable security had been 
 pledged. Bonds, however, are sometimes made negotiable 
 when the rule applicable to negotiable paper would apply. If 
 the mortgage, then, is to secure the payment of a negotiable 
 note or a negotiable bond, it may be transferred and delivered, 
 and the same rights and privileges would obtain in the case of 
 a pledgee as in case of a purchaser; and if the note or bond 
 were underdue at the time of the pledge, the pledgee would 
 take it freed from equities of which he had no actual notice ; 
 but if the mortgage secured a non-negotiable instrument, then 
 the pledgee would take it subject to equities the same as other 
 non-negotiable properties. 
 
 231 
 
§§ 271, 272.] PLEDGE OE PAWN. [PAET II. 
 
 § 271. Mere delivery as a pledge, — In either case the note 
 and mortgage, or bond and mortgage, may be delivered as a 
 pledge without assignment or indorsement, and the pledgee 
 would obtain an equitable interest in the security which could 
 be Enforced. But the note or bond which represents the in- 
 debtedness must be delivered with the mortgage. " The mort- 
 gage security alone, without the personal evidences of debt, 
 conveys no right or title to the assignee and is a nullity. The 
 mortgage itself, without the debt to sustain it, has no reason 
 for existence; when the debt is paid it loses its vitality as a 
 valid instrument. The only effect of the assignment of a mort- 
 gage by a mortgagee, where given to secure the payment of 
 negotiable collateral notes which have passed into possession 
 of third persons, indorsees, for value, is to create a quasi or sec- 
 ondary trusteeship on the part of the assignee in favor of the 
 indorsees of the paper, the payment of which is secured thereby. 
 And this trusteeship is, upon occasion, enforced by courts of 
 equitable jurisdiction. The assignee of a mortgage security, 
 without more, obtains no title or interest therein.'" If the 
 note or bond, however, be pledged, it will carry with it, as we 
 have seen, the mortgage security. 
 
 § 272. Full, complete assignment and transfer — A pledge 
 or a sale.— The transfer of the note and mortgage is not 
 infrequently made by an absolute assignment; nothing being 
 shown upon the face of the transfer to indicate that it is as- 
 signed merely as collateral security for a debt. If it appears 
 that it is a security for the payment of a debt, it would gener- 
 ally, without any further controlling circumstances, be consid- 
 ered as a pledge rather than an absolute transfer of title. At 
 all events, a court of equity would upon proof of the facts (and 
 they may be proven by parol) decree the transfer to be a 
 pledge rather than a sale. The maxim often quoted and re- 
 lied upon applies: "Equity considers substance rather than 
 form." 
 
 1 Colebrooke, Collateral Securities, 44; Dearborn v. Taylor, 18 N. H. 153; 
 185; Wanzer v. Carey, 76 N. Y. 526; Delano v. Bennett, 90 111. 533; Wat- 
 Peters V. Jamestown Bridge Co., 5 son v. Hawkins, 13 Iowa, 547; Eamil- 
 Cal. 334; Jackson v. Blodgett, 5 Cow. ton v. Lubukee, 51 111. 415; Bailey v, 
 305; Jackson v. Bronson, 19 Johns. Gould, Walk. Ch. 478; Martin v. Mc 
 325; Merritt v. Bartholick, 36 N. Y. Reynolds, 6 Mich. 73. 
 
 283 
 
€H. III.] NON-NEGOTIABLE AND QUASI-NEGOTIABLE. [§ 273. 
 
 §273. Pledge distinguished from cliattel mortgage. — Gen- 
 erally a pledge is not in writing, but is usually created by a 
 delivery of the property, and continues so long as the prop- 
 erty remains in the possession of the pledgee for the purposes 
 of the pledge. It creates a lien upon the property by reason 
 of the delivery and acceptance for the purposes of the pledge. 
 It does not pass the title of the property with a defeasance 
 clause, and ceases when the pledgor gives up his possession of 
 the property. Continued possession on the part of the pledgee 
 is a requisite to a pledge, and when possession is abandoned 
 the pledge will be held to be abandoned. On the other hand, 
 a chattel mortgage is in writing, and upon its face is an abso- 
 lute sale of the property with a defeasance clause covenanting 
 that in case of performance upon the part of the mortgagor, 
 that is, payment of the debt as stipulated, the sale shall be 
 void. Possession in the case of a chattel mortgage is not a 
 requisite; on. the other hand, the possession of the property is 
 generally left with the mortgagor. " The essential difference 
 between a mortgage and a pledge as a matter of right is that 
 in the one case the title passes, in the other it does not. But 
 the difference in substance and in fact is, that in the case of a 
 pawn the possession of the article must pass out of the pawnor ; 
 in the case of a mortgage it need not; and in determining 
 whether an agreement is a pledge or a mortgage, regard must 
 be had to these two considerations." ^ 
 
 In Tannahill v. Tuttle ^ it was held that " by a mortgage of 
 chattels the whole legal title of the property passes to the 
 mortgagee conditionally, and to defeat such title the mortga- 
 gor or those claiming under him must show a performance of 
 the condition. The statutes of the states usually provide that 
 a chattel mortgage, to be effective as against subsequent iona 
 fide mortgagees or purchasers, or creditors of the mortgagor, 
 must be filed or registered as provided by the statute, and if it 
 is not and there is no actual notice, it will not be valid except 
 between the parties. But in case of a pledge, there is no such 
 thing required; the property pledged being in the possession 
 of the pledgee is notice to all the world of his rights." 
 
 iHaskins v. Pattison, 1 Edrn. Sel. v. Harrison, 105 XT. S. 401; West v. 
 Cas. (N. Y.) 201; Sohouler on Bail- Crary, 47 N. Y. 435. 
 ments and Carriers, sec. 167; Par- 2 3 Mich. 104. 
 shall V. Eggert, 54 N. Y. 18; Hauselt 
 
 233 
 
CHAPTEE IV. 
 
 PLEDGOR'S EIGHTS AND LIABILITIES. 
 
 274. 
 275. 
 276. 
 
 277. 
 
 278. 
 
 279. 
 
 280. 
 
 281. 
 
 282. 
 
 283. 
 
 The purpose of the chapter. 
 
 Pledgor's rights. 
 
 Pledgor of valuable seciiri- 
 ties — Notes, bonds, mort- 
 gages, etc. 
 
 The pledgor may, under cer- 
 tain circumstances, protect 
 the pledged property from 
 injury. 
 
 Pledgor's interest subject to 
 judicial process. 
 
 When the debt secured is 
 barred by statute of limita- 
 tion. 
 
 When will the statute of lim- 
 itations run against the 
 pledgor. 
 
 The pledgor's right to redeem. 
 
 As to notice of intention to 
 redeem. 
 
 The pledgor impliedly war- 
 rants the title of the pledged 
 property. 
 
 § 284. Rights, duties and liabilities 
 of the pledgee. 
 
 The possession. 
 
 The pledge an incident of the 
 debt secured and assign- 
 able. 
 
 Assignment of secured debt 
 passes equitable interest in 
 pledged property. 
 
 Rights of assignee subject to 
 the contract of pledga 
 
 May repledga 
 
 Right to use the pledged prop- 
 erty. 
 
 291. Expenses and profits. 
 
 292. Liability for loss and dam- 
 
 age. 
 Payment of debt releases 
 
 pledged property. 
 A tender of the amount due 
 
 will discharge the lien of the 
 
 pledge. 
 
 285. 
 286. 
 
 287. 
 
 288. 
 
 289. 
 290. 
 
 293. 
 
 294. 
 
 § 274. The purpose of the chapter — The rights and lia- 
 bilities of the pledgor depend very largely upon the contract 
 which creates the pledge. It may be varied as the parties see 
 fit.' The general liability of the pledgor and the pledgee have 
 been more or less noticed in preceding chapters but not fully 
 discussed. In this chapter it is our purpose to call attention to 
 rules governing these rights and liabilities, and to notice some 
 
 1 Drake v. White, 117 Mass. 10, 13. 
 The court say: "In the present case 
 the parties have reduced their con- 
 tract to writing, and have omitted 
 to attach to the defendants' liability 
 for the property any limitation what- 
 ever. On the contrary, their express 
 promise is to do one or the other of 
 
 two things: either to return the prop- 
 erty specifically, or to pay for it in 
 money. There can be no doubt that 
 if a creditor sees fit to accept a de- 
 posit of security upon such terms, 
 and to place himself in the position 
 of an insurer for its safety, be can 
 legally do so." 
 
 234 
 
OH. IT.J PLEDGOe's eights AND LIABILITIES. [§ 275. 
 
 of the more important applications of the rules to the usual and 
 more common transactions of business; and in this connection 
 it may be said that the reader must at all times keep in mind 
 that a pledge or pawn belongs to that class of bailments known 
 as benefit bailments, where ordinary diligence is required of 
 the parties. No matter what the transaction may be, it is this 
 that fixes and determines the rights of the bailor as well as the 
 bailee ; upon this does their liability rest. 
 
 § 275. Pledgor's rights. — "When once the pledging of the 
 property is completed and the pledgor has released to the 
 pledgee the possession of the same, it becomes the duty of the 
 pledgee to exercise that ordinary care in keeping and caring 
 for the property and in carrying out the object of the pledge 
 that is required in all mutual-benefit bailments. It therefore 
 follows that the pledgor has the right to demand and expect 
 that the pledged property will be properly cared for; that is, 
 that it will have bestowed upon it such care as the ordinarily 
 prudent man would bestow upon his own property of like kind 
 and value under just such circumstances. The pledgor, in 
 other words, has the right to have^his property protected and 
 cared for to the extent that the particular property under the 
 circumstances naturally and ordinarily requires; that is to say, 
 if it be property of such kind as requires use in order to be 
 properly cared for, then that it receive such use as its partic- 
 ular kind requires, and if for want of such use the property is 
 damaged, it follows that the pledgor could sustain an action 
 against the pledgee for not doing his duty in that regard. 
 Whatever is, under ordinary circumstances, required to be done 
 in order to preserve his rights and interests, the pledgor has a 
 right to demand be done by the pledgee. The pledgor is en- 
 titled to have the property so used and protected that its value 
 shall not be impaired, and this rests somewhat upon the fact 
 that during the existence of the pledge the property is in the 
 exclusive possession of the pledgee, and it cannot be cared for 
 or protected by the owner thereof, as he is not entitled to its 
 custody. As, for example, if the pledged property be col- 
 lateral security in the hands of the pledgee, the pledgor has 
 the right to have such securities protected, and if the pledgee, 
 by neglect or want of due care, loses the securities, or fails to 
 enforce them against the persons liable upon them, and thereby 
 
 335 
 
6, 277.] PLEDGE OE PAWN. [PAET II. 
 
 their value is lost or impaired, the pledgor would have an ac- 
 tiou against the pledgee for such loss or damage. 
 
 § 276. Pledgor of valuable securities — Notes, bonds, 
 mortgages, etc. — In these days of business activitj' it often 
 happens that a borrower places large amounts of valuable securi- 
 ties, such as notes, bonds, mortgages, stocks, etc., in the hands 
 ■of his banker, or other person from whom he borrows money 
 to secure his indebtedness. To such creditors who thus become 
 bailees of the securities, this rule of ordinary diligence applies; 
 they are bound to exercise that degree of sound judgment 
 which the ordinarily prudent business man would exercise under 
 like circumstances in the carrying out of the purposes of the 
 trust that is imposed upon them by the bailor, and if through 
 negligence they fail to do this and it results in damage to the 
 pledgor, they will be held liable.' 
 
 § 277, The pledgor may under certain circumstances pro- 
 tect the pledged property from injury.— While the law pro- 
 tects the pledgee in the possession of the pledged property, 
 even as against the pledgor during the continuance of the 
 pledge, giving to him the right to recover it if it is taken from 
 him, it places certain duties upon the pledgee, making it in- 
 cumbent upon him to protect the interests of the pledgor in the 
 property, to the extent, at least, that the property shall not in 
 any wise suffer damage while in his possession. 
 
 This right to protect the property does not deprive the 
 pledgor of the right to protect his own interests in case of fail- 
 
 1 Northwest Nat. Bank v. Thomp- gence the pledgor could recover of 
 
 son Mfg. Co., 71 Fed. 113. "A per- the pledgee the amount of the un- 
 
 son liaving notes in his possession as collectible collateral. And if in an 
 
 collateral security for a debt is action on a note the holder fails to 
 
 bound, so far as the general owner of produce or account for collateral 
 
 the notes is concerned, to use reason- pledged for its security, the note 
 
 able diligence to protect the security may be credited with the amount of 
 
 ■so held and see that it is not out- tlie collateral." Mansur-Tebbetts Im- 
 
 lawed; and where a debtor pledged plement Co. v. Carey et al., 45 S. W. 
 
 notes of solvent persons which could 120. In Anderson et al. v. Carothers 
 
 with reasonable diligence on the part et al., 18 Wash. 530, a creditor ao- 
 
 of the pledgee have been collected cepted a transfer of sheep as collat- 
 
 at maturity, but thereafter while in eral security, agreeing to sell them 
 
 th« hands of the pledgee the notes and retain out of the proceeds the 
 
 became uncollectible because of the amount of his claim. The court held, 
 
 insolvency of the maker, held, that " in an action brought by a creditor, 
 
 in the absence of a showing of dili- that carelessness of the pledgee m 
 
CH. iv.J pledgoe's eights and liabilities. [§ 277.. 
 
 ure on the part of the pledgee to do so, and this right may be- 
 exercised by the pledgor against the pledgee when it becomes 
 necessary to do so to protect himself from loss. As, for ex- 
 ample, where negotiable paper has been pledged as collateral 
 security, it is the duty of the pledgee to make collection of such 
 paper when it falls due; should he fail, however, to do so to 
 the prejudice of the rights of the pledgor, the pledgor may pro- 
 ceed to the collection of the amount due ; or, should it appear 
 that the paper was about to be outlawed, he could bring an ac- 
 tion against the maker before the expiration of the statutes of 
 limitation and thus protect his interests. Indeed, it is his. 
 right, upon failure of the pledgee to do what is necessary to be 
 done, to protect his own interests.' In Whitaker v. Sumner ^- 
 the court say: "It seems now well settled that when personal 
 property is under a pledge or lien, whether created by opera- 
 tion of law or by the act of the owner, the general property 
 remains in the owner, and he may transfer it by a proper 
 contract and upon a good consideration, subject only to the 
 lien. And in such case, as the actual custody and possession of 
 the goods for the time being is in the hands of the party hav- 
 ing the lien, it follows that a constructive or symbolical deliv- 
 ery is sufficient to pass the property. An order by the vendor 
 upon the keeper, or, if the contract of sale or conveyance be 
 in writing, proper and satisfactory notice of the conveyance 
 by the vendee to the holder, constitutes such constructive de- 
 livery. Where ^oods are lying in a warehouse, although sub- 
 ject to a lien for keeping, notice to the warehouse-keeper, where 
 all the other requisites of a sale are proved, is equivalent to a 
 delivery. After such notice the keeper ceases to be the agent 
 of the vendor and becomes the agent of the vendee, and thus 
 the goods are placed under the effective control of the vendee,, 
 as they would be by an actual delivery." The buyer in such 
 
 keeping, and failing to sell the sheep him to another person as collateral 
 until after the market had fallen, does not withdraw entirely from, 
 and not properly caring for them, him the power of protecting his in- 
 constituted a ground of counter- terests by proceeding against the- 
 claim on an action to recover the maker of the notes." 
 debt." 2 20 Pick. (Mass.) 399; Tuxworth v. 
 1 O'Kelley V. Ferguson, 49 La. Ann. Moore, 9 Pick. 347; Fettyplace v. 
 1330. "The fact that a party has Dutch, 13 Pick. 388; Bush v. Lyon, » 
 transferred certain notes held by Cowen (N. Y.), 52. 
 
 237 
 
§ till.] PLEDGE OE PAWN. [PAET II. 
 
 case takes all the rights of the pledgor, and may, because of 
 his ownership of the property, recover the possession of it in 
 the same manner that the pledgee could have recovered had 
 he remained the owner. He may tender payment of the 
 amount due to the pledgee and demand the return to himself 
 of the subject of the pledge, if this would not be a violation 
 of the pledge contract, and, if the possession is refused, may 
 sustain an action of replevin or trover. The rule is that the 
 buyer may take upon himself all the obligations resting upon 
 the pledgor, even to becoming personally liable for the per- 
 formance of the contract.^ The assignee or purchaser should, 
 however, give the pledgee notice that he has purchased the 
 property and is the owner of it; this would be necessary often 
 for his own protection, for without notice that the purchaser 
 had assigned or sold the property, the pledgee might make 
 payment, or even return the property to the pledgor and be 
 protected from any action brought by the assignee ; but with 
 such notice to the pledgee of the assignment or sale of the 
 property, it would be held subject to the ownership of the as- 
 signee or vendee; and if the pledged property should be sold 
 on account of the default of the pledgor or his assignee to per- 
 form the pledged contract or obligation, the assignee or buyer 
 of the property would be entitled to any surplus over and 
 above the amount necessary to discharge the obligation for 
 which the property was pledged.^ 
 
 1 Dupre V. Fall, 10 Cal. 430. " F. and note and interest; F. declined to de- 
 
 H. made and delivered to S. a joint liver the note, and D. brought suit 
 
 and several promissory note for to recover the amount of F. and H., 
 
 $4,500; afterwards, and before the less the $1,000 note and interest, 
 
 maturity of this note, S. gave his Held, that the suit was properly 
 
 note for §1,000, with large interest, to brought, and that D. is entitled to 
 
 C, and indorsed and delivered, as col- recover on the note against F. and 
 lateral security, the note of F. and H., less the amount of the $1,000 note 
 H. for §4,500. C. subsequently as- and interest." 
 
 signed S.'s note of $1,000 to F. and de- ^in Van Blarcom v. Broadway 
 livered the note of F. and H. as col- Bank, 37 N. Y. 540, the court say: 
 lateral security, or as he held it. " The accountability of the defend- 
 After this S. sold and assigned the ant was in no respect changed 
 note of F. and H. ($4,500) then in the thereby, and the defendant had only 
 possession of F., to D., the plaintiil; a right to claim, as a charge against 
 
 D. subsequently demanded of F. the the proceeds arising upon the sale 
 $4,500 note, offering to credit the of the stocks, such amount as would 
 same with the amount of the |1,000 have been necessary for the plaint- 
 
 238 
 
OH. IV.] pledgoe's eights and liabilities. [§ 278. 
 
 § 278. Pledgor's interest subject to judicial process.— At 
 common law the interest of the pledgor was not subject to 
 process for claims against him, or to writ of execution.' The 
 right of the pledgee to the possession of the property was re 
 spected. Statutes in many of the states have made changes 
 in this respect and provided procedure by which the interest 
 of the pledgor may be subjected to judicial process for the col- 
 lection of judgments against him.^ 
 
 In the case of Pomeroy v. Smithy the plaintiff proved that 
 the property in question had been pledged and delivered to him 
 by the owner as collateral security for the payment of a debt, 
 and to indemnify him against certain liabilities which he had 
 incurred for the pledgor. After the goods were delivered 
 they were seized upon a writ of attachment as the property of 
 the pledgor. The contention upon the part of the defendant 
 was that, if the plaintiff was entitled to a verdict, he should 
 only be allowed to recover such a sum as would discharge the 
 debt due to him from the pledgor, and be sufficient to indem- 
 nify him against the liabilities he had assumed. But the court 
 below held that the plaintiff was entitled to recover damages 
 to the full value of the goods that had been taken from him 
 upon the writ, and judgment was had in accordance with this 
 holding. Chief Justice Shaw, delivering the opinion of the 
 court, held that the court below was right in directing that 
 the value of the goods should be the rule of damages. In the 
 course of the opinion the court said: " But neither by the com- 
 mon law nor by force of statute was this property lawfully 
 attached. By the statute two modes of attaching property 
 pledged or mortgaged are prescribed: one by the summoning 
 of the pledgee as the trustee of the debtor; the other by first 
 tendering the amount for which the goods stand subject."* 
 
 iffs to have tendered on the day of nesota, New Hampshire, New York, 
 
 the assignment, with interest and Texas, Vermont and Wisconsin, 
 
 expenses, to cancel, pay up and dis- ^ 17 pick. 85. 
 
 charge the claim of the defendant, ^ In Treadwell v. Davis, 34 Cal. 601, 
 
 by the pledge of the stock, and not the court say: " Whilst the interest 
 
 beyond that sum." of the pledgor may therefore be 
 
 1 Wilkes et at v. Ferris, 5 Johns, reached under an execution, it can 
 336. only be done by serving a garnish- 
 
 2 California, Georgia, Indiana, ment on the pledgee, and not by a 
 Maine, Massachusetts, Michigan, Min- seizure of the pledge. The law wisely 
 
 289 
 
§§ 279, 280.] 
 
 PLEDGE OE PAWN. 
 
 [PAET II. 
 
 § 279. When the debt secured is barred by statute of lim- 
 itations. — The fact that the debt for the payment of which 
 the property is pledged is barred by the statute of limitations 
 will not release the property, and the pledgor cannot on this 
 account compel the surrender to him of securities or property 
 pledged without paying the indebtedness. The pledgee or 
 pledgor may not be able, because of the statute of limitations 
 to sue upon the indebtedness and obtain a judgment; the stat- 
 ute may be a complete defense to such an action; but he can 
 hold the pledged property for its payment, and, if default is 
 made, may foreclose the pledge and sell the property for the 
 payment of the indebtedness. The contract of pledge may be 
 enforced and the property subjected to the payment of the debt 
 to secure which it is pledged; even though the debt secured is 
 outlawed the law will require a fulfillment of the pledge.' 
 
 § 280. When will the statute of limitations run agahist 
 the pledgor. — The statute of limitations will not begin to run 
 against the pledgor until he has made a tender of the amount 
 
 provides that the pledgee shall not 
 be disturbed in his possession unless 
 it be by an order of the court made 
 after examination, ' on such terms as 
 may be just, having reference to any 
 liens thereon or claims against the 
 same.' In this method the rights of 
 all parties may be protected; and it 
 is the only method by which the in- 
 terest of the pledgor can be subjected 
 to an execution." Reicheubach v. 
 MoKee, 95 Pa. St. 433. " In the case 
 of a pawn or a pledge there is a spe- 
 cial property in the pawnee. It is 
 liable to be sold on an execution 
 against the pawnor, but subject to 
 the rights and interests of the 
 pawnee. The taking of the property 
 out of th e possession of the pawnee 
 by a sheriff's sale does not divest his 
 property and is in no sense a relin- 
 quishment of his lien, and a bona fide 
 purchaser from a sheriff's vendee 
 takes it subject to said lien. The 
 sheriff sells only the title of the de- 
 fendant in an execution, and the real 
 owner, besides trespass against the 
 
 sheriff, may maintain replevin or 
 trover against his vendee." Baugh 
 v. Kirkpatrick, 54 Pa. St. 84 "An 
 execution cannot take goods out of a 
 pawnee's possession without tender- 
 ing him the money for which beholds 
 them in pledge." Briggs v. Walker, 
 31 N. H. V2; Mechanics' Bldg. & Loan 
 Ass'n v. Conover, 14 N. J. Eq. 219. 
 
 ' In Terabler v. Palestine Ice Co., 
 17 Tex. App. 596, 43 S. W. 896, the 
 court say: " A pledgee of stock may 
 enforce payment of his debt by a sale 
 of it, though the debt be barred by 
 statute of limitation." In re Oakley 
 et al., 3 Edw. Ch. (N. Y.) 278; Gage v. 
 Riverside Trust Co., 86 Fed. 984. "A 
 pledgor cannot compel the surrender 
 to him of securities pledged with- 
 out paying the indebtedness, on the 
 ground that the statute of limita- 
 tions has run against it; and further, 
 he will be estopped from setting up 
 the statute where in his complaint, 
 in an action between the parties, he 
 has admitted and alleged the indebt- 
 edness." 
 
 240 
 
CH. iv.J pledgoe's eights and liabilities. [§ 281. 
 
 of the debt for which the property is pledged and the pledgee 
 has refused to restore the property held by him as security for 
 the indebtedness; until this is done no action could accrue in 
 favor of the pledgor for the recovery of the propertj'^, and there- 
 fore the statute of limitations would not commence to run until 
 the action Avas ripe. "Mere delay on the part of the pledgor 
 to claim a redemption of the pledge for a period shorter than 
 the time prescribed by the statute of limitations as a bar to an 
 action on the debt for which the pledge was held would not 
 suffice to raise a presumption against the right of the pledgor 
 to redeem." ^ It is evident that the pledgor would not be barred 
 by the statute until the full term had run after his right of 
 action had accrued. 
 
 Judge Story in his work on Bailments ^ says : " If the pawnee 
 does not choose to exercise his acknowledged right to sell, he 
 still retains the property as a pledge, and upon a tender of the 
 debt he may at any time be compelled to restore it; for pre- 
 scription or the statute of limitations does not run against it." 
 And he further adds: "After a long lapse of time, if no claim 
 for a redemption is made, the right will be deemed to be ex- 
 tinguished and the property will be held to belong absolutely 
 to the pawnee." It is, however, difficult to conceive of a case 
 where the pledgor would by delay forfeit his right to redeem. 
 That right is a vested property right, and is as absolute as is 
 the equity of redemption in a mortgagor. 
 
 § 281. The pledgor's right to redeem. — This is a right of 
 which the pledgor cannot be deprived, even if the contract or 
 agreement creating the pledge contains a covenant upon the 
 
 1 Whelen's Ex'r v. Kingsley's pledge are continued by mutual con- 
 
 Adm'r, 36 Ohio St. 131. "Whatever sent." 
 
 the rule may be in oases where the ^gtoryQu Bailments, sec. 346; Cross 
 pledgor makes no claim for redemp- v. Eureka Lake, etc. Canal Co., 73 
 tion until after the right of the Cal. 302. " A pledgee of shares of the 
 pledgee to recover his debt is barred capital stock of a corporation has a 
 by the statute of limitations, we are right to retain their possession until 
 quite satisfied that mere delay for a the debt to secure whicli they are 
 shorter period of time will not suflBce pledged is satisfied; and while so 
 to raise a presumption against his holding he cannot claim them ad- 
 right to redeem. Until such bar versely and thereby acquire a title 
 against the debt is fixed it must be under the statute of limitations." 
 presumed that the credit and the Hancock v. Franklin Ins. Co., 114 
 
 Mass. loo. 
 16 341 
 
§ 26^2.} PLEDGE OE PAWN. [PAET II. 
 
 part of the pledgor that the property shall become irredeem- 
 able upoa failure to pay or perform the obligation for which 
 the property is pledged. Public policy demands that the 
 pledgor shall at all times prior to the sale of the pledged prop- 
 erty upon foreclosure have a right to redeem it, and a contract 
 of pledge containing an agreement or provision depriving the 
 pledgor of the right to redeem is held to be void in that respect.' 
 If after the pledge has been executed and the property delivered 
 the parties should desire to cut off the right to redeem, that is, 
 to fix a time or a condition upon which the title to the prop- 
 erty should become vested in the pledgee, they may do so; and 
 such a contract or agreement would not be considered void, 
 for the reason that the pledgor would have a perfect right to 
 make such a conditional sale of his equity of redemption. Un- 
 less, however, such a subsequent contract has been made dis- 
 posing of his right to redeem, the pledgor may before the prop- 
 erty is sold upon foreclosure of the pledge redeem by payment 
 of the debt or performance of the obligation ; and if in the con- 
 tract pledging the property no particular time is fixed for re- 
 demption, he may redeem at any time; if the contract, however, 
 fixes a time for redeeming by the pledgor, he could not re- 
 deem at any time before the expiration of the time fixed; bnt 
 the right to redeem at any time after the time fixed, and before 
 the foreclosure sale, would not be cut off by such a contract. 
 
 § 282. As to notice of intention to redeem. — There are 
 cases where the courts have held that the pledgee was entitled 
 to a reasonable notice of the pledgor's intention to redeem in 
 order that he might produce the bailed property and become 
 
 iln Vickers v. Battershall etal., 33 Forfeitures are abolished under our 
 N. Y. Sup. 314, the court held that law, and the rule is firmly established 
 " where a note was assigned as col- that under every instrument given 
 lateral security the debtor may re- as security, the borrower has a right 
 deem on payment of the debt though to redeem upon payment of the loan, 
 the assignment contained a provis- Clark v. Henry, 3 Cow. 334. In 
 ion that, in case the debt should not Peugh v. Davis, 96 U. S. 332, the 
 be paid at maturity, the note should circuit court of the United States 
 belong to the assignee. An equity of stated the rule to be that the right 
 redemption attached to the note in to redeem cannot be waived oraban- 
 the plaintiff's hands, and nothing doned by any stipulation of the par- 
 could destroy that equity except a ties made at any time, even if em- 
 judgment of foreclosure rendered by bodied in the mortgaga Lucketts 
 a court of competent jurisdiction, v. Townsend, 49 Am. Dec. 733. 
 
 343 
 
CH. IV.] pledgoe's eights and liabilities. [§ 282. 
 
 assured that the indebtedness had been canceled, or that the 
 pledgor had not waived his right to redeem. These courts 
 seem to proceed upon the theory that it is no more than just 
 in certain cases that the pledgee should have a reasonable time 
 to deliver up the pledged property after the intention of the 
 pledgor is made manifest. The supreme court of Georgia, in 
 MeCalla v. Glarh^ entertains this theory, holding to the gen- 
 erally accepted doctrine that " tender of the debt on the day 
 it becomes due determines the creditor's right to retain posses- 
 sion of a pledge held as collateral security; and it is im- 
 mediate conversion for him to refuse the tender and retain 
 the pledge on a claim of title based upon an alleged forfeiture 
 for delay to make payment;" and further holding that "if 
 the debtor be himself in default by reason of having delayed 
 payment beyond maturity of the debt, a like refusal and 
 claim by the creditor will not amount to a conversion, if, on 
 the same day of the tender, before suit is brought, and be- 
 fore the situation of the parties is materially changed, he 
 retracted his refusal, after taking the advice of counsel and 
 then offer to accept the tender and restore the pledge, provided 
 the tender be enlarged so as to cover charges on the pledge 
 which the creditor has lawfully paid prior to the tender." And 
 in Dewart v. Masser''' the court held that "where the pledgee 
 had become surety upon notes for the pledgor, and the pledgor 
 had redeemed by paying the notes or discharging the indebt- 
 edness, that in such case the pledgee was entitled to notice of 
 such payment or discharge of the notes and reasonable time 
 to become assured of the fact of the payment. So it would 
 seem that in these two classes of cases the pledgee would be 
 entitled to reasonable notice, to wit, where a long time has 
 expired after the paper becomes due for which the property 
 was pledged, and the pledgor has been in default; and second, 
 in cases where the pledgee has become surety and held the 
 property to secure him, he would be entitled to notice that the , 
 note or the paper upon which he has become surety has been 
 
 i55Ga. 53; Dewart v. Masser, 40 mand made, or at least until he has 
 Pa. St. 303. •• A bailee who has re- notice that the debt as security for 
 ceived property to hold as security which he holds the pledge has been 
 for the payment of a debt is under discharged." 
 no obligation to return it until de- ^ 40 Pa. St 303. 
 
 243 
 
§§ 2s;3, 2Si.J PLEDGE OB PAWN. [PAET II. 
 
 discharged and a reasonable time to determine for himself that 
 fact." 
 
 § 283. The pledgor impliedly warrants the title of the 
 pledged property. — The rule that the pledgor impliedly war- 
 rants that he is the owner of the pledged property, or has such 
 an interest or ownership as legally entitles him to pledge it as 
 security for the payment of the debt or performance of the ob- 
 ligation, is analogous to the rule that obtains in the law of 
 sales, which holds that the vendor impliedly warrants that he 
 is the owner of the property sold; and following the analogy 
 in this case, the bailor is liable in damages where the owner- 
 ship or any part of it is not in him, and by reason of the de- 
 fective title the pledgee is deprived of the property pledged.' 
 
 If the pledgor undertakes to pledge the property of another 
 without his consent, he would be estopped from denying at any 
 time that he was not the owner of the property, and would 
 not be allowed to invalidate the pledge or deprive the pledgee 
 of the property; and although he was not the owner of the 
 property at the time the pledge was consummated, but after- 
 wards obtained the title, his ownership of the property would 
 relate back to the time of the making of the pledge, and would 
 inure to the benefit of the pledgee. In this the rule accords 
 with that which obtains in sales and transfers of personal 
 property, and in cases of conveyance of real property with 
 covenants of seizin and warranty.^ 
 
 § 284. Rights, duties and liabilities of the pledgee.— We 
 have already considered this subdivision in many of its fea- 
 tures in our treatment of various subjects, and little is left 
 to be particularly noticed except to call attention to some 
 certain phases not sufficiently explained. The general prin- 
 ciples governing this class of bailments suggest the course of 
 discussion. Possession, care, custody and return of the prop- 
 erty is the natural course of the pledge contract if it is ful- 
 filled and the indebtedness or obligation discharged. If the 
 pledgor fails to pay or discharge the obligation, then a fore- 
 closure of the pledge and all the rights, duties and obligations 
 incident thereto; but this would belong more logically to an- 
 other subdivision, namely, the rights and duties of the parties 
 after the default of the pledgor. 
 
 1 Mairs v. Taylor, 40 Pa. St. 446. 2 Goldstein v. Hort, 30 Cat 372. 
 
 244 
 
OH. iv.J pledgor's eights and L14.BIUTIES. [§§ 285, 286. 
 
 § 285. The possession. — As we have already seen, posses- 
 sion of the pledged property must necessarily be with the 
 pledgee or his assignees; it is a requisite of the pledge, a sym- 
 bol of the security guaranteed by the pledged property, and 
 so the pledgee, as long as he remains the creditor or obligee of 
 the pledgor, is entitled to the possession of the property 
 pledged; it stands as his security for the indebtedness or obli- 
 gation, guaranteeing payment or performance, and this pos- 
 session becomes a vested property interest in the pledgee, 
 which he owns as much as he owns his horse or any other 
 chattel, nor can he be deprived of it any more easily. Until 
 the debt or obligation is discharged the pledgee may hold and 
 possess the pledged property, and cannot be deprived of it ex- 
 cept by his own voluntary act, or by due process of law.^ 
 
 § 286. The pledge an incident of the debt secured, and 
 assignable. — A pledge to secure the payment of a debt, or the 
 performance of an obligation, is more than a mere bailment; 
 it becomes a part of the transaction or contract to pay or per- 
 form the obligation; it is an incident to the debt itself and 
 cannot be separated from it; therefore it is held that to make 
 an effectual sale, both the pledge and the debt must pass to 
 the assignee.^ Possession, as has been said, is a requfsite to a 
 
 1 Yeatman v. Savings Inst, 95 TJ. S. him the benefit of any pledge which 
 764. "Until he shall be paid, the he holds to secure the payment of 
 pledgee is entitled to the possession such debt. So long as nothing is done 
 of the property which he holds under to deprive the pledgor of the right 
 a valid pledge as security for his to redeem on payment of the amount 
 debt against the pledgors, notwith- due on the principal debt the 
 standing a subsequent adjudication pledgor is not injured." Jarvis v. 
 of bankruptcy against them; and Rpgers, 15 Mass. 389; Whitaker v. 
 his refusal to surrender it to their Sumner, 20 Pick. (Mass.) 399; Goss 
 assignees is not a conversion of it. v. Emerson, 33 N. H. 38; Bailey v. 
 The failure of the pledgee to appear Colby, 34 N. H. 29; Belden v. Per- 
 and prove his claim in the bank- kins, 78 111. 449; Bradley v. Parks, 
 ruptoy court forfeits only his right 88 111. 169. As to negotiable in- 
 to participate in the distribution of struments: Duncomb v. N. Y. etc. 
 the bankrupt's estate ordered by R. Co., 84 N. Y. 190; Lewis v. Mott, 
 that court." 36 N. Y. 395; White Mts. etc. R. 
 
 2 Whitney v. Peay, 24 Ark. 22; Co. v. Bay State Iron Co., 50 ,N. H. 
 Johnstonv. Smith, 11 Humph. (Tenn.) 57; Merchants' Bank v. State Bank, 
 390; BuUard v. Billings, 3 Vt. 309; 10 Wall. (U. S.) 604. It is not neces- 
 Chapman v. Brooks et al., 31 N. Y. sary to obtain the consent of the 
 75. " A pledgee may assign the prin- pledgor. Curtis v. Leavitt, 15 N. Y. 9. 
 cipal debt to a third person, and give 
 
 245 
 
§ 287.] PLEDGE OE PAWN. [PAET II, 
 
 valid pledge, and to lose the possession might result in the 
 loss of the security; for in such case the pledged property 
 might become liable to levy and sale upon execution for the 
 debts of the pledgor, or, if sold to a 'bona fide purchaser, be- 
 come lost as security for the debt. While this is true, the 
 security will be protected if the possession and indebtedness 
 are held by the same person. So, the pledgee may assign the 
 debt or obligation and with it the security, and the assignee 
 would acquire all the rights and privileges of the pledgee; 
 would be entitled to the possession of the pledged property, 
 and be fully protected in that right even as against the pledgor 
 or his assignor. In Falkner v. HiW^ it was held that a pledgee 
 might release a portion of the goods to the pledgor; or, with 
 his consent, to his assignee, and not affect the lien of the 
 pledgee upon the remainder of the property, or his right of ac- 
 tion against the debtor upon the personal obligation. 
 
 § 287. Assignment of secured debt passes equitable inter- 
 est in pledged property. — The assignee of the debt secured 
 by the pledged propertj^ stands somewhat in the same relation 
 as the assignee of the mortgage indebtedness to the mortgage 
 security ; he has an equitable interest in the pledge and the 
 pledged property, which under certain circumstances may be 
 enforced. The pledgee's interest in the property exists only 
 because of the indebtedness; the debt and the special prop- 
 erty in the security cannot be separated. When the pledgee 
 ceases to own the debt the special propertj' and all the prop- 
 erty he has in the pledge ceases, and he has no legal or equi- 
 table interest in it. If, with the assignment of the debt, the 
 pledgee passes the pledged property to his assignee, then the 
 assignee has a legal interest in it, and his relations to it are 
 the same as that of the pledgee ; but if the pledgee does not de- 
 liver to him the possession of the pledged property, the assignee 
 has an equitable interest in it and may enforce it, unless it 
 be negotiable paper which has been transferred to a lona fide 
 holder, or such a transfer is not contemplated by the contract 
 of pledge. The supreme court of Connecticut, in Homer v. 
 flavlngn Bank, after fully discussing the question, and the 
 American and English cases bearing upon it, say: "The prin- 
 ciple to be extracted from the cases is this: That when col- 
 
 1 104 Jliiss. 188. 
 246 
 
OH. IV.J pledgor's EIGHTSJAND LIABILITIES. [§ 288. 
 
 lateral security is given or property assigned for the better 
 protection or payment of a debt, it shall be made effectual for 
 that purpose, and that not only to the immediate parties to 
 the security, but to others who are entitled to the debt; and to 
 make them thus effectual a court of chancery will lend its aid, 
 and the reason is that this is the intent of the transaction." > 
 
 The courts holding to this doctrine proceed upon the 
 theory that the pledgee holds the property pledged simply and 
 alone as security for the payment of the debt, and that it is 
 the intentio,n of the original parties that the property should 
 be subjected to the payment of the debt if the pledgor should 
 fail to discharge the obligation. That while the legal title to 
 the property remains in the pledgor, it is a naked title; the 
 equitable and beneficial interest being to the extent of the se- 
 curity for the debt in the pledgee. So it has been held that 
 upon assignment of the debt the securit}'^ being created for the 
 payment of the debt is a trust existing for that specific pur- 
 pose which equity will enforce.^ 
 
 § 288. Rights of assignee subject to tlie contract of pledge. 
 The original contract of pledge cannot be superseded by any 
 subsequent action on the part of the pledgee without the con- 
 sent of the pledgor. If it was clearly the intention of the 
 parties that the pledged property should remain in the hands 
 of the pledgee and should not be assigned to another, that con- 
 tract would be respected and enforced, and in such case the 
 pledged property would be held by the pledgee. Such inten- 
 tion may be gathered from the language of the contract, or 
 may be implied. Ordinarily there is no such implication in 
 law, but it has been suggested that such an implication would 
 arise from the nature of the thing pledged, as in the case of a 
 valuable work of art which it is to be supposed the pledgor 
 
 1 7 Conn. 478. the assignee of the pledge oould not 
 
 2 Stearns v. Bates, 46 Conn. 306; maintain an action or enforce a lien 
 
 Estey & Green v. Graham, 46 N. H. unless he could show that he also 
 
 169; Jones on Pledges, sec. 419. In owned the debt secured by the 
 
 Van Eman v. Stanchfield, 13 Minn, pledge. In Ponce v. McElvey, 47 
 
 75, it was held that the pledgee can- Cal. 154, it was held that the as- 
 
 not Separate his special property in signee of the principal debt and col- 
 
 the pledge from the debt secured lateral security holds the latter upon 
 
 by it so that the debt shall be owned the same terms that the original 
 
 by one person and the pledge by an- pledgee held it, Alexander, etc E. 
 
 other. It was therefore held that Co. v. Burke, 33 Grat. (Va.) 354. 
 
 247 
 
§§ 3S1), 290. J PLEDGlfoE PAWN. [PAET II. 
 
 would not desire to give over into the care of strangers.' It 
 ma}', however, be further observed that if the contract of 
 pledge does not provide that the pledged property shall be 
 turned back to the pledgor in case of the assignment of the 
 debt, or in some other way clearly show that it is the inten- 
 tion of the parties, in case of such an assignment, to release the 
 property from the lien of the pledge, that it could be held in 
 the hands of the pledgee still subject to the pledge, and in case 
 of default be subjected to the discharge of the secured debt. 
 
 § 289. May repletlge- — As we have seen, the pledgee has a 
 property in the pledge to the extent of his security; it there- 
 fore follows that to the extent of this property interest he may 
 repiedge it to secure his own obligation, but he cannot pledge 
 beyond the interest which he has. This repledging of the 
 property, however, must always be subject to all the restric- 
 tions of the original pledge, and to disregard these restrictions 
 and the original pledged contract, or to repiedge the property 
 claiming to be the owner thereof, would be a fraud upon the 
 original pledgor as well as upon his pledgee, and might be 
 held to be a conversion.^ 
 
 § 290. Right to use the pledged property.^ The general 
 rule is that the pledgee has no right to use the pledged prop- 
 erty except by permission of the pledgor, or by the agreement 
 which creates the pledge.' Exceptions to this general rule, 
 
 ' The .suggestion of the iext is borne a mere factor, it has been decided 
 
 out in the opinion by Cockburn, J., that in case of .a strict pledge, if tiie 
 
 in Donald v. Suckling, L. R. 1 Q. B. pledgee transfers the same to liis own 
 
 585. creditor, the latter may hold the 
 
 ^In Jarvis v. Rogers, 15 Mass. 389, pledge until the debt of the original 
 
 the court say: "From these cases it owner is discharged." Thisdootrine 
 
 appears that the pawnee may deliver is affirmed in Belden v. Perkins, 7fj 
 
 the goods to a stranger without con- 111. 449. 
 
 sideration, or he may sell and assign ' Sterns v. Marsh, 4 Den. '237; Mi'- 
 
 all his interest absolutely, or assign Arthur v. Howett, 73 111. 358; Story 
 
 itconditionallybywayof pawn, with- on Bailments, sees. 99-329. "Where 
 
 out in either case destroying the property is pledged the pledgee may, 
 
 original lien, or giving the owner a with the assent of the pledgor, useit 
 
 right to reclaim them on any other in any way consistent with the gen- 
 
 or better terriis than he could have eral ownership and the ultimate 
 
 done before such delivery or assign- rights of the pledgor." Lawrence v, 
 
 ment." In Story on Bailments, sec. Maxwell, 53 N. Y. 19. But should any 
 
 337, it is said: "But whatever doubt damage arise by reason of such u/^e 
 
 may be indulged in as to the case of the pledgee would be answerable. 
 
 248 
 
OH. IV.] plbdgoe's eights and liabilities. [§ 291. 
 
 however, are numerous, principally growing out of the obliga- 
 tion of the pledgee to exercise reasonable care and prudence 
 in caring for the property; for there are many kinds of prop- 
 erty the subject of the pledge that ordinary care would require 
 to be used. Examples of this kind have already been given, 
 both where property is corporeal and incorporeal.^ The use, 
 however, must be a proper use, and consistent with the ordinary 
 care required, having in contemplation the object of the pledge 
 and the property pledged. As, for example, a carriage horse 
 would require exercise in order to give him proper care, and 
 the pledgee would be entirely excusable for driving the animal 
 to a carriage for this purpose; but to put him into a plow team 
 would be an illegal use of the pledged property for which the 
 pledgee might be subjected to damage. And where coupon 
 bonds are pledged it is the duty of the pledgee to cut the cou- 
 pon at the proper time and collect the interest or dividends 
 and account for the proceeds; if a mortgage or note, to collect 
 the interest or the principal when due; if stocks, to protect 
 them, and even, if necessary to their protection, to vote them at 
 the meeting of the stockholders. But ordinarily the pledgee 
 could not vote the stock as the owner of it, and if he does so 
 vote without any legal consent for so doing, the act might be 
 deemed to be an act of conversion of the pledge and the pledgor 
 could restrain the pledgee from so doing.^ 
 
 §291. Expenses and profits. — The right of the pledgee to 
 make expenditures and to collect profits upon the pledged 
 property is based upon the rule governing the rights and lia- 
 bilities of the bailee, occasioned by reason of the bailment 
 being a mutual-benefit bailment requiring ordinary diligence, 
 which is that degree of care that an ordinarily prudent man 
 would usually bestow upon property of a like nature under 
 just such circumstances. Unusual expenses or improvements 
 would not be allowed, but it is incumbent upon the bailee to 
 
 1 Thompson v. Patrick, 4 Watts vote upon it as owner; and at all 
 (Pa.), 414; Story on Bailments, sec. events he ought not, where, under 
 329; Lawrence v. Maxwell, 53 N. Y. the mode of acquiring transfer, he so 
 19. escaped the liability of a stockholder; 
 
 2 McDaniels v. Flour Mfg. Co., 23 but the fact that the pledgee so votes 
 Vt. 274; Schouler's Bailments and does.not amount to conversion of the 
 Carriers, sec. 216. "The pledgee of pledge." Heath v. Silverthorn Co., 39 
 the stock has apparently no right to Wis. 147. 
 
 249 
 
§ 291.J PLEDGE OE PAWN. [PAET II. 
 
 do whatever is necessary in order to keep the property in such 
 a condition that it will be reasonably available for the pur- 
 poses of the pledge, being at all times limited to expenses 
 which are usual and necessary. The pledgee, while bound to 
 make useful and necessary repairs, however, cannot make new 
 expensive and unusual improvements, or such as materially 
 change the bailed property or the use of it. If he does no 
 more than to incur usual and ordinary expenses, however, he 
 can recover his outlay to the extent of the increased value.' 
 In Fugan v. Tliompson - the pledgee of a steamer, who had ad- 
 vanced large sums of money from time to time to aid in run- 
 ning it, and who assumed and paid debts and expenses that had 
 accumulated for repairs and insurance, was allowed by the 
 court an additional lien upon the property for such advance- 
 ments and expenses. So the pledgee of an insurance policy, 
 who was compelled to pay premiums upon it by way of keep- 
 ing the policy alive, was allowed to recover the amount paid 
 in addition to the indebtedness for which it was pledged.' In 
 Rill V. Smith * it was held " that a trustee who is a pledgee of 
 personal chattels is entitled to a fair compensation for all rea- 
 sonable expenses attending the keeping of them, and has a 
 lien therefor upon the property pledged as against the pledgee 
 and the plaintiff. Such trustee, upon the sale of the chattels 
 pledged to him by a receiver under the direction of the court, 
 is entitled, both as against the principal defendant and the 
 plaintiff, to so much of the avails of such sale as will satisfy 
 not only the original debt for which the chattels were pledged, 
 but also the reasonable expenses incurred in the keeping of the 
 same." The rule as to the amount of expenses that may be 
 incurred by the pledgee and recovered for seems to be that 
 the expenses must be reasonable and such as would be incurred 
 
 ' Hendricks v. Robinson, 3 Johns, whatever expenses are necessarily 
 
 Ch. 383. incurred by him in asserting his 
 
 2 38 Fed. 4C7. title, or in rendering it available, are 
 
 s Rowan v. State Bank, 45 Vt. 160. a fair charge upon the property, and 
 
 ■ISS N. H. 869; Starrett v. Barber, the balance only is to be applied to 
 
 SO Me. 4.J7. " Where property, is put the payment of what is due." Kay 
 
 in the hands of the payee of the note v. Ross, 59 Ga. 62, where a pledgor 
 
 by the principal promisor as collat- was allowed to recover for premiums 
 
 eral security therefor, it is received paid by hini upon an insurance pol- 
 
 by him under an implied obligation icy to keep it alive. 
 
 to account for the proceeds; and 
 
 350 
 
CH. iv.J pledgoe's eights and liabilities. [§ 291. 
 
 along the line of the pledgee's duty, and if they go beyond 
 that it cannot be recovered; and his duty may be said to be 
 to keep and preserve the property, protect the title and make 
 the security available. So he would be warranted in paying 
 assessments upon stock that are legally made and premiums 
 upon insurance policies that must necessarily be paid in order 
 to keep the policy in force. The same degree of diligence 
 would make it incumbent upon the pledgee to collect, care 
 for and account for all profits and increase arising from the 
 pledged property; and should he fail to exercise ordinary 
 diligence in this regard, to the damage of the pledgor, he 
 would be liable for whatever damages resulted from want of 
 such care; for the pledgee is not only called upon to exercise 
 ordinary diligence, but he is liable to the pledgor for ordinary 
 negligence. 
 
 If profits accrue in the hands of the pledgee, he is entitled 
 to hold them, and, if of such a nature that they can be so 
 applied, to apply the same toward the payment of the debt; 
 or in case the debt or obligation is discharged, to restore 
 such profits and all increase, together with the pledged prop- 
 erty, to the pledgor.^ It may also be said that it is the duty 
 of the pledgee to make the pledged property profitable if he 
 can do so; and where expenses accrue in that respect he would 
 be entitled to deduct them from whatever profits were real- 
 ized, being under obligation at all times to account to the 
 pledgor for whatever transactions he may have had in con- 
 nection with the pledged property. It may be said that the 
 rule resolves itself into this: The pledgor is entitled to all the 
 profits of the bailment and is liable for all the necessary ex- 
 penses while in the hands of the bailee. If the property con- 
 sists of stocks or valuable securities paying dividends and 
 
 1 In Hunsaker v. Sturgis, 29 Cal. gagee to recover money received by 
 
 143, it was held : " Where the relation him for return premiums at the ex- 
 
 of pledgor and pledgee exists, if the piration of the policies, and that it 
 
 debt is paid, it is the duty of the vpas immaterial that the policies had 
 
 pledgee to account for and pay over become void by the alienation of the 
 
 all the income, profits and advan- insured property vritbout the con- 
 
 tages derived from the bailment." sent of the company." Androscoggin 
 
 In Merrifield v. Baker, 9 Allen, 29, it R. Co. v. Auburn Bank, 48 Me. 335; 
 
 was held that the mortgagor could Hager v. Union Nat. Bank, 63 Me. 
 
 maintain an action against the mort- 509. 
 
 251 
 
§§ 292, 293.] PLEDGE OE PAWN. [PART II. 
 
 profits, the pledgee must account for them; if of personal 
 property yielding profits or increase, as a herd of milch cows 
 a flock of sheep, or such like property, the pledgee must ac- 
 count for the same to the pledgor, while he will be entitled to 
 all expenses necessarily incurred in caring for the pledge, and 
 in some cases a fair compensation as pledgee for special serv- 
 ices, if the property requires it, by way of care and custody. 
 
 § 2f)2. Liability for loss and damage. — The pledgee is re- 
 quired to exercise ordinary diligence and is liable for ordi- 
 nary negligence, so any loss that is the result of the ordinary 
 negligence of the bailee while the property is in his custody 
 and under his control would render him liable to the bailor or 
 owner. "If perishable goods are pledged, the pledgee is bound 
 to use ordinary care to preserve them ; but if they perish nat- 
 urally, the loss would fall on the pledgor." ^ If the property 
 is lost by theft, the mere fact that it has been stolen es- 
 tablishes no liability; but if it should appear that because 
 of the negligence of the bailee the property was so lost, the 
 bailee would then be held liable.^ The burden of proof in 
 such cases is upon the pledgor, as it is he that alleges the 
 negligence, and it is also incumbent upon him to show the dam- 
 age occasioned by reason of such negligence.' 
 
 § 293. Payment of debt releases pledged property.— The 
 payment of the debt or the performance of the obligation of 
 which the property is pledged releases the property from the 
 lien of the pledge, and the pledgor is entitled to the possession 
 of it at once. The pledgee cannot retain the pledged prop- 
 erty as security for the payment of other debts than that for 
 which it was pledged unless there be an agreement with the 
 parties that it shall be so held."* The debt need not necessarily 
 be paid in money; payment may be made as Avell by dehvery 
 and acceptance of personal property; anything that effects a 
 satisfaction of the debt is a payment.'^ The whole debt, includ- 
 ing principal and interest, however, must be paid in order to 
 
 1 Thompson v. Dill, 30 Ala. 444. 3 Murphey v. Partsoh (Idaho), 23 
 
 2 Story on Bailments, sec. 338; Pac. 83. 
 
 Jenkins V. National Bank, 58 Me. 570; « Biebinger v. Continental Bank, 
 Winthrop Sav. Bank v. Jackson, 67 99 U. S. 143; Armstrong v. McLean, 
 Me. 570; Petty v. Overall, 43 Ala. 145. 153 N. Y. 490. 
 
 5 Strong V. Worden, 6 Vt. 563. 
 2.j3 
 
OB. IT.J PLEDGOe's eights AND LIABILITIES. [§ 294-. 
 
 discharge the lien, and until the whole debt is paid the pledgee 
 is entitled to retain the property. A mere renewal of the note 
 which evidences the indebtedness is not a payment of the debt, 
 and unless it is stipulated to have that effect it will not dis- 
 charge the lien of the pledge.' It goes without saying that the 
 pledgor is entitled to credit for all the profits that have accrued 
 to the pledgee by reason of the pledge by way of increase or 
 money received on account of the use of the property, and it 
 is the duty of the pledgee to render a just and true account of 
 the same and apply it upon the indebtedness of the pledgor. 
 
 § 294. A tender of the amount due will discharge the lien 
 of the pledge, — A tender of the amount due for principal and 
 interest, together with any expenses which the pledgee is le- 
 gally entitled to, will discharge the lien of the pledge.^ It is 
 necessary, however, that the full amount should be tendered to 
 the pledgee, and in making this tender the usual and ordinary 
 rules applicable to tender apply ; that is to say, it would not be 
 necessary for the pledgee to actually produce the amount of 
 money if the circumstances were such as to preclude the neces- 
 sity of such a production of the money ; as, for example, if the 
 pledgee stated that there would be no use of producing the 
 money because he would not accept it; nor would it be neces- 
 sary to make a tender of legal tender if there was no objection 
 upon the part of the pledgee to the money actually produced 
 and tendered iov the reason that it was not a legal tender. 
 And it has been held that where a tender is made to a pledgee 
 who makes no objection to the amount,* but does not sur- 
 render the pledge or accept the tender, the lien is extinguished, 
 and his possession becomes a wrongful conversion, even though 
 the tender is in fact less than the amount due the pledgee. The 
 tender, however, must not be made upon any condition except 
 
 1 Moses V. Trice, 31 Gratt. (Va.) 556; lateral security for the balance of 
 
 Kinney r. Kempton, 46 Vt. 80; Day- the debt embraced in the new note, 
 
 ton Nat. Bank v. Merchants' Nat. in the absence of any agreement to 
 
 Bank, 37 Ohio St. 208. In Thorn v. the contrary." 
 
 Bank, 37 Ohio St. 354, it was held: 2 it was lield in Tomboy Gold Mine 
 
 "Where part of a promissory note is Co. v. Green,ll Colo. App. 447, "thatan 
 
 paid, and a note in renewal is exe- unconditional tender of the amount 
 
 cuted for the balance, a pledge given for which stock is pledged termi- 
 
 as collateral security when the first nated the lien of the pledgee and also 
 
 note was executed will stand as col- the right to retain it." 
 
 253 
 
§ 294.] PLEDGE OE PAWN. [PAET II. 
 
 that the property that has been pledged should be returned 
 to him, and it should at all times be kept good, that is to say, 
 in such a way that it can at any time be produced and brought 
 into court.^ 
 
 A tender legally made of the amount is equivalent, so far as 
 effecting discharge of the property, to a payment of the debt, 
 and it re-invests the title to the thing pledged in the pledgor 
 so that he can maintain trover or replevin for it.^ 
 
 1 Brooklyn Bank v. De Grauw, 23 pledge held as collateral security, 
 Wend. 343. and it is an immediate conversion for 
 
 2 Coggs V. Bernard, 2 Ld. Eayrnond, him to refuse the tender and retain 
 909; Ball v. Stanley, 5 Yerg. (Tenn.) the pledge on a claim of title based 
 199. " Tender of the debt on the day upon an alleged forfeiture for delay 
 it becomes due terminates the cred- to make payment." McCally v. Clark, 
 iter's right to retain possession of the 55 Ga. 53. 
 
 354 
 
OHAPTEK V. 
 
 THE RIGHTS AND OBLIGATIONS OF THE PLEDGOR AND 
 PLEDGEE AFTER DEFAULT. 
 
 § 295. The subject and its discussion. 
 Section L 
 896. The pledgee's remedies. 
 
 297. The pledge security not lost 
 
 by suit and judgment on 
 . the debt. 
 
 298. Discharge of lien by tender is 
 
 not discharge of debt. 
 
 299. The pledgee may attach 
 
 pledged property or levy his 
 execution upon it, but 
 waives the lien of the 
 pledge. 
 
 300. Defense of the pledgor to ac- 
 
 tion of pledgee upon the 
 debt secured. 
 
 301. Foreclosure of the pledge of 
 
 corporal property. 
 
 302. By sale under the power con- 
 
 tained in the contract of 
 pledge. 
 
 303. The sale, unless otherwise a^ 
 
 lowed by contract, must be 
 public. 
 
 304. The notice of sale. 
 
 305. The pledgee cannot be pur- 
 
 chaser at the sale. 
 
 306. The utmost good faith de- 
 
 manded in the matter of 
 the notice of sale. 
 
 307. Pledgor cannot compel 
 
 pledgee to sell within a 
 specified time. 
 
 308. Surplus in the hands of the 
 
 pledgee — Proceeds of the 
 sale. 
 
 809. Foreclosure by statutory 
 
 proceedings. 
 
 310. Foreclosure in equity. 
 
 311. The notice and sale by virtue 
 
 of decree. 
 
 312. When the pledgor is insolvent 
 
 or a bankrupt. 
 Section II. 
 
 313. Rights, remedies and liabili- 
 
 ties of the pledgor and 
 pledgee of negotiable instru- 
 ments and ohoses in action 
 after default. 
 314 The English rule. 
 
 315. Recourse to the pledged secu- 
 
 rity. 
 
 316. The pledgee's diligence in col- 
 
 lecting the securities. 
 
 317. Pledgee may recover in an ac- 
 
 tion on the negotiable secu- 
 rities. 
 
 318. Compromise. 
 
 Section III. 
 
 319. Rights and liabilities of 
 
 pledgee of stocks and bonds 
 of corporations after de- 
 fault. 
 
 320. Stocks held by brokers pur- 
 
 chased on margins. 
 
 321. Custom, usage and course of 
 
 business. 
 
 322. Foreclosure of the pledge 
 
 where stocks are held on 
 margins. 
 
 Section IV. 
 
 323. The rights and liabilities of 
 
 the pledgor after default. 
 
 324. The pledgor may waive irreg- 
 
 ularity. 
 
 325. Redemption in equity. 
 
 326. Equity in some cases will take 
 
 jurisdiction. 
 
 327. Accounting for the pledged 
 
 property. 
 
 328. Termination of the relation. 
 
 255 
 
§§ 295, 296.] TLEDGE OE PAWN. [PAET II. 
 
 §295. The subject and its discussion The plec]cyin(r of 
 
 the property is to secure the payment of the debt or perform- 
 ance of the obligation when due. The guarantee is not oniy 
 that the amount due upon the debt will be paid or that the 
 obligation will be performed, but it is that the amount will be 
 paid and that the obligation will be performed at the time it 
 is due. It therefore follows that failure to pay the debt or per- 
 form the obligation at that time renders the pledgor in default 
 and gives to the pledgee the right to look to the pledge to 
 secure the debt or obligation. 
 
 The rights and obligations of the pledgor and pledgee after 
 such default will be the subject of discussion in this chapter, 
 and in considering these we have subdivided the subject as 
 follows: 
 
 (1) The rights and liabilities of the pledgor and pledgee of 
 
 corporeal property after default. 
 
 (2) The rights and liabilities of the pledgee of negotiable 
 
 instruments after default. 
 
 (3) The rights and liabilities of the pledgee of stocks and 
 
 bonds of corporations after default. 
 
 (4) The rights and liabilities of the pledgor after default. 
 
 Section L 
 The Rights and Liabilities of the Pledgok and Pledgee of 
 
 COEPOEEAL PeoPEETT AfTEE DeFAULT. 
 
 § 296. The pledgee's remedies. — The property pledged 
 stands simply as security for the payment of the debt or per- 
 formance of the obligation. The realization of the debt is the 
 all-important matter, and the holding of the security in no 
 way confines or limits the realizing of the amount secured to 
 proceedings against the pledged property; the pledgee may at 
 his option foreclose the pledge and sell the property, or he 
 may sue on the debt, obtain judgment, and collect the same or 
 any part of it by levy and sale of other property of the debtor.' 
 
 1 Elder v. Rouse, 15 Wend. 318. instrument, the creditor, on default 
 " Where in a mortgage of property a of payment, may bring his action, 
 party acknowledges his indebted- and is not bound in the first instance 
 ness to another in a sum certain, and to resort for satisfaction to the prop- 
 declares that for the purpose of se- erty." In Beckwith v. Sibley, H 
 curing the payment thereof he trans- Pick. (Mass.) 483, it was held "that 
 fers the property specified in the pKma/acie aright of action aooruea 
 
 256 
 
CH. v.] EIGHTS AND OBLIGATIONS AFTEE DEFAULT. [§ 297. 
 
 § 297. The pledge security not lost by suit and judgment 
 on the debt. — The property is pledged as security for the pay- 
 ment of the debt, and the only thing that will discharge the 
 pledged property from the lien of the pledge is payment or 
 discharge of the obligation; as the obtaining of a personal 
 judgment can in no way be said to be a payment or discharge 
 of the indebtedness it cannot affect the pledge. The pledgee 
 may therefore have a judgment against the pledgor and at 
 the same time hold the pledge as security for the debt, unless 
 there is some contract or agreement limiting or changing this 
 legal right. 
 
 In Wallace v. Finnagan^ the supreme court of Michigan 
 say: "A person holding collateral security is not bound, unless 
 he choose, to resort to it before suing upon his principal claim. 
 When that claim is satisfied he may be compelled to release' 
 or re-assign the collaterals, but his right to sue the claim itself 
 is an absolute one and not in any way affected by his posses- 
 sion of the securities, and he cannot, therefore, be compelled to 
 surrender them as a condition of enforcing his legal demand." 
 So a pledgee is not bound to surrender the pledged property 
 before he can proceed to sue and obtain judgment upon the 
 personal obligation.^ Judgment may be obtained, execution 
 or attachment against other property may be levied, and it 
 
 to the consignee immediately upon special equities a pledgee of personal 
 his making the advances to the con- property will not be required to ex- 
 signor, notwithstanding he had a haust his security before enforcing 
 lien upon the notes as security for his personal remedy upon the debt."' 
 the debt due him." Whitaker v. Grand Island Sav. & Loan Ass'n v. 
 Sumner, 20 Pick. 899. "A creditor MoOre, 40 Neb. 686; De Cordova v. 
 holding collateral security may nev- Barnum, 9 N. Y. Sup. 237. " Where 
 ertheless bring an action upon his collaterals are deposited with a 
 demand and attach property of the broker to secure the result of a sale 
 debtor to satisfy the judgment." and purchase of stock, he holds the 
 Whitwell V, Brigham, 19 Pick. 399. collaterals as a pledge, and is not 
 " In the absence of a statute, or stip- bound, in the absence of an agree- 
 ulation to the contrary, the posses- ment, to sell or return them before 
 sion of the pledged property does not bringing suit to recover the loss re- 
 suspend the right of the pledgee suiting from the transaction." Ger- 
 to proceed personally against the mania Sav. Bank v. Peuser, 40 La. 
 pledgor for his debt without selling 796; Barnes v. Bradley, 56 Ark. 105; 
 the goods." Sonoma Valley Bank v. Pate v. Hoffman, 16 N. Y. Sup. 74. 
 Hill, 59 Cal. 107. 2 " it jg no defense to a suit on a 
 1 14 Mich. 170. " In the absence of note that collateral security given 
 17 257 
 
§ 298.J PLEDGE OE PAWN. [PAET II. 
 
 has been held that even committing the debtor's body to prison 
 on an execution for debt, where such a proceeding is permit- 
 ted, would in no wise lessen or impair the right of the pledgor 
 to hold the pledged property as security. The pledgee may, 
 after obtaining the judgment, levy upon and sell other prop- 
 erty, and if the amount realized upon such sale is not sufficient 
 to discharge the debt, he may afterwards sell the pledged 
 property which he holds as security upon foreclosure of the 
 pledge for the balance; or he may foreclose his pledge and 
 bring an action and recover a judgment for any deficiency after 
 sale of the pledged property, and proceed to collect his judg- 
 ment for deficiency by execution and sale of other property.' 
 § 298. Discharge of lien by tender is not discharge of debt. 
 A tender of the amount of the indebtedness which is refused 
 by the pledgee may operate as a discharge of the lien of the 
 pledge and entitles the pledgor to release and return of the 
 pledged property. Such a tender and release, however, will 
 not discharge the debt or obligation, and the pledgee may, after 
 the lien of the pledge has thus been released, and after having 
 been deprived of the property which he held as security, bring 
 an action to recover the debt and obtain judgment and have 
 execution for the same, and levy upon and sell the property of 
 the pledgor to satisfy the demand.- 
 
 has not been returned or accounted debt is not discharged by the tender, 
 
 for." Ambler v. Ames, 1 App. D. 0. but the pledgee may still maintain 
 
 191. an action for this. Jones on Pledges, 
 
 1 Smith V. Strout, 63 Me. 205; So- sec. 542. At common law a tender 
 noma Valley Bank v. Hill, 59 Cal. of the debt on the law day satisfies 
 107: Whitewill v. Brigham, 19 Pick, the condition of the mortgage and 
 117; Morse v. Woods, 5 N. H. 399. discharges the property from the in- 
 Where, however, after the suit is cumbrance as effectually as payment, 
 commenced the pledgee sold the but the debt remains and may be re- 
 pledged property held as security, covered by action at law. A tender 
 and released upon the sale a greater of the debt after its maturity ex- 
 amount than the amount of the debt tinguishes the lien on personal prop- 
 upon which suit was brought, it was erty pledged to secure its payment; 
 held that such a sale would abate a pledgor may recover the pledge or 
 the suit; that it was equivalent to a its value in any proper form of ac- 
 payment pendente lite. Lomis v. tion without keeping the tender good, 
 Jewett, 51 Vt. 348. orbringiug the money into court, and 
 
 ^ " In one respect a tender is not the pledgee may have his action for 
 
 equivalent to payment: for although the debt. A debt payable in money 
 
 the lien is discharged by either, the is never discharged by a tender; it « 
 
 258 
 
OH. V.J EIGHTS AND OBLIGATIONS AFTEE DEFAULT, [§ 299. 
 
 § 299. The pledgee may attach pledged property or levy 
 his execution upon it, but waives the lien of the pledge. — 
 
 It is also well settled that the pledgee, or his assignee, may sue 
 the pledgor on his personal obligation and levy an executioa 
 in the suit upon the pledged property. He may commence his 
 suit by attaching the property pledged, or may attach the prop- 
 erty during the pendency of the suit; but it seems to be gen- 
 erally held that if the plaintifif, pledgee or assignee, attaches the 
 pledged property which he holds as security, or levies upon it 
 an execution sued out in his action against the pledgor, he 
 waives the lien of pledge ; he cannot hold the property by virtue 
 of the pledge and at the same time hold it by attachment or 
 execution levy. By the levy of the writs or either of them he 
 asserts that the property is the property of the pledgor, and 
 that possession may be taken of it under the writ and held by 
 the sheriff or officer levying it to satisfy the judgment, and it 
 would seem that by this act the pledgee would be estopped from 
 asserting a right in himself to hold possession of the property. 
 The claim of possession by the pledgee by reason of the pledge 
 would be antagonistic to the claim of the officer by virtue of 
 the levy of the writ which the pledgee has directed.^ The su- 
 preme court of Kansas, in Jones v. ScoU^ held that "where prop- 
 erty exempt from execution has been pledged, the exemption 
 is waived, and the property may be sold by virtue of an exe- 
 cution issued on the judgment recovered on the debt secured." 
 It would seem that the reasoning of the court might be 
 questioned in this case. If the levying of an execution waives 
 the lien, the moment the lien is waived the property right that 
 had been conveyed to the pledgee becomes re-invested in the 
 pledgor, and he holds it as he holds any other property that is 
 exempt from execution. No agreement or contract waiving 
 exemption from execution can be said to have been contem- 
 plated at the time of entering into the contract of pledge. The 
 pledgor reserved the right to redeem the property, the right to 
 
 only where a debt is payable in spe- N. J. Law, 496; Story v. Krewson, 55 
 
 oific articles of personal property Ind. 397; Perre v. Castro, 14 Cal. 519; 
 
 that a tender operates as a satisfao" Hemmelmann v. Fitzpatrick, 50 Cal. 
 
 tion of the demand." Mitchell v. 650. 
 
 Roberts, 17 Fed. 776; Moynahan v. iLegg v. Willard, 17 Pick. 140; 
 
 Moore, 9 Mich. 9; Potts v. Plaisted, Buck et al. v. IngersoU, 11 Met. 236. 
 
 30 Mioh. 149; Shields v. Lozier, 35 2 10 Kan. 33. 
 
 259 
 
§ 300.] PLEDGE OE PAWN. [PAET II. 
 
 have it sold, if sold at all, by virtue of the power in the pledge 
 or regularly foreclosed as provided by law, which is an entirely 
 different procedure than that by execution, levy and sale. To- 
 hold that exempt property which has been pledged is subject 
 to levy and sale upon an execution by reason of its having been 
 pledged for the same debt would be permission to vary the 
 contract by which the pledge is created without the consent of 
 the party, pledgor. The policy of the law is to exempt certain 
 property from execution. It is a statutory privilege, and a 
 contract of waiver of that privilege would necessarily be sub- 
 ject to a strict construction.' 
 
 § 300. Defense of the pledgor to action of pledgee upon 
 the debt secured. — The right of action upon the debt secured 
 by the pledged property is entirely independent of and distinct 
 from the contract of pledge, and so the pledge is in no way 
 affected by an action for the debt; nor can the pledgor offset 
 the pledged property to the claim of the pledgee in such an 
 action ; ^ nor could he recoup damages claimed because of a 
 depreciation of the property while in the possession of the 
 pledgee, though such depreciation occurred after the debt was 
 due and at a time when the pledged property could have been 
 sold for the debt. This is true even though the pledgor at 
 such time requested the pledgee to sell the property.^ 
 
 Conversion of the property by the pledgee would no doubt 
 raise a question of right on the part of the pledgor by way of 
 defense to an action upon the debt. In many of the states stat- 
 utes have been passed allowing the pledgor the right of set-off' 
 in such cases; but if there was no statutory right, it would 
 seem that, if the amount received by the pledgee by reason of 
 such conversion was fixed and liquidated, it would be allowed 
 by way of set-off; and if the pledging of the property was con- 
 
 1 Jones on Pledges, sec. 599. of the note; but the pledgee is not 
 
 2 Bank v. Jackson, 67 Me. 570. bound to sell, and on failure to do so 
 
 3 Rozet V. McClennan, 48 111. 345. he is not liable for the loss sustained 
 " Where a party deposits the stock of by depreciation in the value of the^ 
 an incorporated company as collat- stock which may occur after the de- 
 eral security to a promissory note, fault. The pledgor should have re- 
 with power of sale to the pledgee in deemed by sale of the stock, or other- 
 case of payment after a demand and wise the general property remains m 
 notice, he may sell the stock and him with the right of redemption, 
 apply the proceeds to the discharge 
 
 260 
 
OH. v.] EIGHTS AND OBLIGATIONS AFTEE DEFAULT, [§ 301. 
 
 nected with and a part of the transaction of contracting the 
 debt, then in such case recoupment would be proper and allow- 
 able by way of defense to the action upon the debt in case of 
 conversion of the property by the pledgee.' 
 
 § 301. The foreclosure of the pledge of corporeal property. 
 The title to the property pledged remains in the pledgor sub- 
 ject to the right of possession and the lien of the pledgee, 
 failure to pay the debt when due does not divest the pledgor of 
 the title or give to the pledgee any greater title than he be- 
 fore had. The pledgee may, however, when default has been 
 made in the payment of the debt for which the property was 
 pledged, proceed to foreclose his pledge, and until he has fore- 
 closed the pledge he cannot deprive the pledgor of his title. 
 By this foreclosure proceeding he has recourse to the prop- 
 erty, and through it, and by reason of it, may subject it to the 
 payment of the debt for which it was pledged; the pledgee, 
 however, at all times and until the pledge is actually foreclosed, 
 has a right to redeem the property from the lien of the pledge, 
 aad this equity of redemption, as it is called, is a right and 
 privilege belonging to the pledgee, of which he cannot be di- 
 vested even by a contract or agreement made at the time of 
 the pledge; but, as has been shown, by a subsequent contract 
 
 'Sterns v. Marsh, 4 Denio, 227; action for the bond; the demand filed 
 Bank V. Marshall, 11 Fed. 19; Bigelow -tfounded upon the same claim can- 
 V. Walker, 34 Vt. 149. In Winthrop not be allowed." Citing Houghton 
 Bank v. Jackson, 67 Me. 570, the ques- v. Houghton, 37 Mich. 73, and Eobin- 
 tion arose as to whether or not in a son v. Stafford, 57 Me. 163. Continu- 
 suit upon the debt the pledgor could ing, the court say : " Nor does the law 
 set off the bond which was the prop- of recoupment apply. To make that 
 erty pledged to secure the payment available it must appear that there 
 of the debt The court say: "What- is some stipulation in the contract 
 ever may be the contract, express or sued on which the plaintiff has vio- 
 implied, on the part of the bank grow- lated." A defense by way of recoup- 
 ing out of the pledge of this bond ment denies the validity of the 
 under the facts agreed, there can be plaintiff's cause of action to as large 
 no liability on the part of the bank to an amount as the plaintiffs allege he 
 return the bond until the note has is entitled. Waterman on Eecoup- 
 beenpaid; its lien must continue so ments, sees. 465, 466; Harrington v. 
 long as the note remains in its pos- Stratton, 33 Pick. 510. This can only 
 session unpaid. There is no pretense be when the liability of both parties 
 of payment, and the tender made arises out of the same transaction, or 
 was a conditional one and therefore from mutual and dependent cove- 
 of no effect. The defendant could nants of agreement, 
 not under existing facts maintain an 
 
 261 
 
§ 302.] PLEDGE OE PAWN. [pAET II. 
 
 for a valuable consideration he might dispose of his equity of 
 redemption.^ 
 
 Foreclosure of the pledge is generally effected in one of 
 three ways: 
 
 (1) By sale .under the power contained in the contract of 
 pledge. 
 
 (2) By statutory proceedings. 
 
 (3) By bill in chancery and obtaining a decree of the court 
 for the sale of the property. 
 
 § 302. (1) By sale under the power contained in the con- 
 tract of pledge. — If the pledged contract be in writing, it usu- 
 ally contains an authorization to the pledgee, in default of 
 payment of the debt or the performance of the obligation at 
 the time and in the manner provided for payment and per- 
 formance, to sell the pledged property either at public or pri- 
 vate sale. This authorization to sell the property is called the 
 power of sale in the contract. This power to sell, however, at 
 public sale, even though it is not contained in the written con- 
 tract, or in case there is no written contract, but a mere pledge 
 of the property for the payment of the debt or the perform- 
 ance of the obligation, is implied from the pledging of the 
 property. The procedure is sometimes called "a sale at com- 
 mon law," or " a common-law foreclosure," and the right to 
 sell extends as well to the assignee of the pledgee's interest 
 as to the pledgee.^ There are, however, exceptions to the gen- 
 eral rule, as in case of pledge of commercial paper as security 
 for a loan of money. In the absence of a special power for 
 that purpose the pledgee is not authorized, upon non-payment 
 of the debt and upon notice to the pledgor, to sell the securities 
 pledged either at public or private sale, but he is bound to hold 
 and collect the same as they become due and apply the money 
 to the payment of the loan. This because the proper mode of 
 
 1 Coninghara's Appeal, 57 Pa. St. pledgee might sell on default of the 
 474; Mitchell v. Roberts, 17 Fed. 776. pledgor, such a right is presumable 
 
 2 Alexander v. Burke, 23 Grat. (Va.) from the nature of the transaction." 
 254; Jerome v. McCarter, 94 U. S. 734- 2 Story's Eq., sec. 1008. In ordinary 
 739. The court say with reference cases no special agreement is neces- 
 to the sale of the pledged property; sary to confer upon the pledgee 
 " They passed by delivery, and even power to sell the property pledged, 
 were there no express stipulation in The power is ordinarily incident to 
 the contract of pledge that the the pledge. 
 
 263 
 
OH. T.] EIGHTS AND OBLIGATIONS AFTEE DEFAULT. [§§ 303, 304. 
 
 making such a security available would be by collecting the 
 money and not by selling the security.* 
 
 § 303. The sale, unless otherwise allowed by contract, 
 must he puhlic. — "At common law a pledgee cannot sell 
 without judicial process, unless reasonable notice be given to 
 the pledgor to redeem, and the pledgor is entitled to such rea- 
 sonable notice not only of the pledgee's intention to sell, but 
 also of the time and place of the sale, and the sale should be 
 at public auction." In McDowell v. Chicago Steel Works et al.,' 
 the court say: "At common law, where property is pledged 
 to secure a debt, the right to sell for default in payment is con- 
 ferred by the law, and hence the sale must be made subject to 
 the conditions imposed by the law — that is to say, after making 
 demand and giving notice; but where the pledge is accompa- 
 nied by a special contract as to sale -upon non-payment of the 
 debt, the right to sell is conferred not by the law, but by the 
 contract itself, and hence must be exercised in the mode speci- 
 fied by the parties in their agreement, as such contract embod- 
 ies the intention of the parties; its silence as to notice justifies 
 the inference that the power to sell without notice was intended 
 to be conferred." 
 
 § 304. The notice of sale. — The pledgor, the owner of the 
 property pledged for the payment of the debt or the perform- 
 ance of the obligation, is specially interested in having the 
 
 1 Wheeler v. Newbould, 16 N. Y. public auction the chattel pledged, 
 
 392. In Sleeven v. Morrow, 4 Ind. without judicial process and decree 
 
 425; Roberts v. Thompson, 14 Ohio of foreclosure, upon giving to the 
 
 St. 7, and Jennison v. Parker, 7 Mich, debtor reasonable notice to redeem, 
 
 335, it was held "that the pledgee is although the old rule existing in the 
 
 bound to use reasonable diligence in time of Glanville required a judicial 
 
 the collection of negotiable paper sentence to warrant a sale unless 
 
 pledged as collateral security." there was a special agreement to the 
 
 '■'124111.491; Sell v. "Ward, 81 III. contrary. This right to sell upon de- 
 
 App. 675: National Bank of 111. v. fault is implied in the contract of 
 
 Baker, 128 IlL 533; Story on Bail- pledge and does not depend upon 
 
 ments, sec. 310. " The sale should be any express stipulation.'' Jerome v. 
 
 at public auction." Wheeler v. New- McCarter, 94 XT. S. 734; M:cDowell v. 
 
 bould, 16 N. Y. 395; Dykers v. Allen, Chicago Steel Co.,. 124 111. 491; Mer- 
 
 7 Hill, 497. "A sale at the broker's chants' Bank v. Thompson, 133 Mass. 
 
 board is not a public sale." Brass 482; Hancock v. Franklin Ins. Co., 
 
 V. Worth, 40 Barb. 648; Jones on 114 Mass. 156; Ogden v. Lathrop, 65 
 
 Pledges, sec. 603. " It is a well set- N. Y. 158; Canfield v. Minn. etc. 
 
 tied rule of the common law that the Ass'n Co., 14 Fed. 801, 15 Fed. 260. 
 pledgee upon default may sell at 
 
 263 
 
§ 304.J PLEDGE OR PAWN. [PAET II. 
 
 pledged property bring the best price possible at the sale 
 and that it be not sacrificed, for the reason that he is liable for 
 any deficiency and is entitled to any surplus that may arise by 
 the sale of the property ; the presumption is that by a public 
 sale more bidders will be attracted and a better price will be 
 realized. The pledgor is entitled to be personally notified of 
 the time and place of the sale, unless the contract provides 
 that a sale may be had without such notice; and if by the con- 
 tract it is stipulated that to fix the pledgor's liability a demand 
 must be made, then both demand and notice of sale must be 
 given to the pledgor.' The time of the sale of the property, 
 unless fixed by the contract, is uncertain, depending entirely 
 upon the will of the pledgee, and so the only way in which 
 the pledgor can know the time and place is by notice from 
 the pledgee, who fixes both. The pledgor has the right tore- 
 deem at any time before the property is sold upon foreclosure, 
 and it is therefore very important that he should be notified 
 of the time and place when and where that very important 
 privilege is to be cut off; and so it is said that the pledgee is 
 bound to give the pledgor personal notice of the time and 
 place of the sale, whether the debt is payable on a fixed day, 
 and whether payable immediately or at some future time;^ and 
 
 1 "At common law, when property sell it. he must sell it at public sale 
 
 is pledged to secure a debt, the right and after notice to the pledgor. If 
 
 to sell for default in payment is con- this is not done the^pledgor's rights 
 
 ferred by the law, and hence the are unaffected by the sale." In 
 
 sale must be made subject to the Stearns v. Marsh, 4 Denio, 237, tlie 
 
 conditions imposed by the law; that court say: "It is said that the law 
 
 is to say, after making demand and makes a distinction bstween the case 
 
 giving notice." McDowell v. Chi- of a pledge for the debt payable im- 
 
 cago Steel Works et al., 124 111. 491. mediately, and one where the debt 
 
 -Jeanes' Appeal, 116 Pa. St. 573. does not become payable until a fu- 
 The court say (p. 583): "In the view ture day; and that in the latter case 
 that we take of the present case the creditor is not bound to call for 
 there is but one question that re- a redemption or to give notice of 
 quires consideration, and that is sale, though in the former it is oou- 
 whether the pledgee of the stock ceded that there must be such de- 
 had the lawful right to sell it at pri- mand and that notice must be given, 
 vate sale and without notice to the Non-payment of the debt at the stip- 
 pledgor ? In an ordinary case of ulated time did not work a forfeit- 
 pledge, of course there is no such ure of the pledge, either by the 
 right. The pledgee must first give civil or at the common law. It 
 notice to redeem, and if the pledge simply clothed the pledgee with au- 
 is not redeemed and he proposes to thority to sell the pledge and reim- 
 
 264 
 
■CH. V.J EIGHTS AND OBLIGATIONS AFTER DEFAULT. [§ 305. 
 
 if the pledgor cannot be found, and for this reason he cannot 
 be notified, then it will be necessary for the pledgee to resort 
 to judicial proceedings in order to foreclose the pledge.' 
 Formal notice of the time and place of sale would not be nec- 
 essary if the pledgor has actual notice.^ The only object in 
 giving notice being that he may be informed as to when and 
 where the sale is to take place, to require the pledgee to give 
 actual notice when the pledgor already had full knowledge 
 upon that subject would be to require a vain thing. 
 
 § 305. The pledgee cannot be purchaser at the sale. — The 
 relation of the pledgee and the pledgor may be said to be 
 fiduciary. The pledgee in -a sense holding the property in 
 trust for the pledgor, in the exercise of good faith is bound to 
 ■obtain upon the sale all that the property is reasonably worth, 
 and in carrying on the foreclosure sale is bound to exercise 
 that good faith which is always required where like relations 
 exist. It may therefore be said to be a general rule that the 
 pledgee cannot be a purchaser at his own sale. It has been 
 held, however, that where a pledgee makes a sale under and 
 within the terms of the pledge, and purchases the pledged 
 
 burse himself for his debt, interest the pledgor is equally interested to 
 and expenses; and the residue of the see to it that the pledge is sold for a 
 proceeds of the sale then belonged fair price. The time when the sale 
 to the pledgor. The old rule exist- may take place is as uncertain in 
 ing in the time of Glanville re- the one case as in the other; both 
 quired a judicial sentence to war- depend upon the will of the pledgee, 
 rant a sale, unless there was a spe- after the lapse of the term of credit 
 oial agreement to the contrary. But in the one case, and after a reason- 
 as the law now is, the pledgee may able time in the other; unless indeed 
 file a bill in chancery for a fore- the pledgor resorts to a court of 
 closure and proceed to a judicial equity to quicken a sale. Personal 
 sale; or he may sell without judicial notice to a pledgor to redeem, and 
 process upon giving reasonable no- of the intended sale, must be given 
 tice to the pledgor to redeem and of as well in the one case as in the 
 the intended sale. I find no author- other, in order to authorize a sale by 
 ity countenancing the distinction the act of the party. And if the 
 contended for; but on the contrary, pledgor cannot be found and notice 
 I understand the doctrine to be well cannot be given to him, judicial pro- 
 settled, that whether the debt is due ceedings to authorize a sale must be 
 presently or upon time, the rights of resorted to.'' 
 
 the parties to the pledge are such as i Garlick v. James, 13 Johns. (N. Y.) 
 
 have been stated. (Citing cases.) 14fi; Ind. & I. C. Ey. Co. v. McKen- 
 
 Nor do I see any reason for such a nan, 24 Ind. 62. 
 
 distinction. In either case the right ^ Loud v. Burke, 23 Grat. (Va.) 364; 
 
 to redeem equally exists until a sale; Jones on Pledges, sec. 613. 
 
 265 
 
305.] 
 
 PLEDGE OE PAWN. 
 
 [PAET n. 
 
 property himself, such purchase is not per se void, but only 
 voidable at the instance of the pledgor or one in privity with 
 him.' A purchase, however, by the pledgee at his own fore- 
 closure sale is governed very largely by the fairness and good 
 faith of the transaction, and if coupled with acquiescence on 
 the part of the pledgor, or a waiver of the irregularity, the 
 title to the property would pass. It is, however, at all times 
 subject to the option of the pledgor; and if he should refuse to 
 ratify the sale or to waive the irregularity within a reasonable 
 time, the sale would be avoided and the pledge would be in 
 the same condition as though there had never been a sale upon 
 foreclosure; that is to say, a sale under such circumstances is 
 not void, but voidable at the option of the pledgor, who may 
 elect to treat such a sale as valid or avoid it.^ 
 
 1 Farmers' Loan & Trust Co. v. To- 
 ledo & S. H. R. Co., 54 Fed. 759, re- 
 versing the decree in 48 Fed. 223. 
 
 2 In Bryan v. Baldwin, 53 N. Y. 335, 
 the court say: "The plaintiff being 
 pledgee of the stock, and in that 
 character exposing it for sale, could 
 not become the purchaser unless the 
 defendant assented to such purchase. 
 Story on Bailments, sec. 319; Torry 
 V. Bank of Orleans, 7 Paige, 649; 
 Hawley v. Cramer, 4 Cow. 736. This 
 sale to the plaintiff was not void, but 
 voidable at the election of the de- 
 fendant. Edwards on Bailments. 260, 
 261. The defendant was at liberty 
 to ratify the sale, and had he done 
 so it would have been valid for all 
 purposes. The ratification would 
 have made it lawful and relieved it 
 from any Imputation of being tor- 
 tious as to him. The title of the 
 plaintiff to the stock would have 
 been thereby made perfect, and the 
 defendant entitled to credit upon the 
 note for the proceeds of the sale. 
 But the defendant has not done this, 
 but has elected to treat the purchase 
 by the plaintiff as illegal. This 
 avoids the sale, and that being 
 avoided by the defendant, the parties 
 are remitted to their rights the same 
 
 as though no sale had been attempted ; 
 the defendant is liable upon the note, 
 and the plaintiff still holds the stock 
 as pledgee." First Nat. Bank v. Rush, 
 85 Fed. 539; Ross v. Barker (Neb.), 78 
 N. W. 730. " It has often been de- 
 cided that where notes, bonds or 
 shares of stock have been pledged as 
 collateral securities in default of pay- 
 men t of the principal debt, they may 
 with due procedure be sold, and if 
 purchased by the pledgee the sale is 
 voidable at the election of the pledgor, 
 and he may redeem the securities or 
 treat the sale as valid and have the 
 amount or purchase price credited on 
 the debt." Fidelity Ins., Trust & 
 Safe Co. V. Roanoke Iron Co., 81 Fed, 
 439; Glidden v. Bank, 53 Ohio St 588; 
 Stedman v. Weiskittle, 88 Md. 519, 
 " A sale by the pledgee of the article 
 held in pledge which is merely color- 
 able, and which is subsequently re- 
 scinded by the pledgee, who takes 
 back such article into his possession, 
 is wholly inoperative to divest the 
 pledgor's title, and by reporting such 
 a pretended sale to the pledgor, 
 thereby leading him to believe that 
 his rights in the pledge are gone, 
 the pledgee disentitles himself to 
 make a subsequent sale of the pledge 
 
 266 
 
OH. v.] EIGHTS AND OBLIGATIONS AFTER DEFAULT. [§§ 306, 307. 
 
 § 306. The utmost good faith demanded in the matter of 
 the notice of sale. — The pledgee must exercise the utmost 
 good faith at every step in the foreclosure of his pledge, and 
 especially is this demanded in the matter of the notice of sale 
 in fixing the time and place. Reasonable time must be given 
 so that the pledgor may, if he can, redeem his property from 
 the pledge, and, if he cannot redeem it, procure purchasers to- 
 attend the sale, that there may be plenty of bidders and thus- 
 the property bring a fair price. A proper place must be desig- 
 nated, for by fixing the sale at an unsuitable place the prop- 
 erty might not be sold at anything like a fair price. As, for 
 example, it could not be said to be fair or just to a pledgor of 
 railroad stocks, that are generally bought and sold at money 
 centers, to advertise their sale at some country cross-roads 
 where the attendance would be very small, and the bidders 
 few if any, while if the pledged property consisted of farming 
 utensils it might be a very proper place for holding the sale. 
 All the circumstances surrounding the particular case must 
 be considered ; the residence of the parties, and the place where 
 it would be convenient and reasonably expected that the sale 
 would take place. The time and place must be suitable in 
 view of all the facts. "Where railroad bonds were pledged 
 in Texas and sold in New York it was held a good sale, as- 
 New York is the financial center of the country." > 
 
 § 307. Pledgor cannot compel pledgee to sell within a 
 specified time. — The pledgor at all times before the property 
 is sold on foreclosure has the privilege of redeeming the prop- 
 erty by discharging the debt or obligation for which it stands- 
 pledged, and for this reason it is said he cannot, in the absence 
 of a contract or agreement, make it the duty of the pledgee to- 
 sell the pledged property within a specified time by request or 
 by directing him to do so. The supreme court of Minnesota in 
 discussing this question say: " There might be such a contract 
 
 without giving the pledgor notice of buying in the property at the sale, 
 
 the facts and of his intention to since his duty to the pledgor to get 
 
 make such sale." Leahy v. Lobdell, the highest price is inconsistent with 
 
 Farrell & Co., 80 Fed. 665. Held in his interest as a purchaser. Lord v> 
 
 Massachusetts, under statute author- Hartford, 175 Mass. 330. 
 izing pledgee on notice to pledgor to ^ King v. Texas B. & Ins. Co., 58- 
 
 sell the pledge at public auction, Tex. 669. 
 tliat the pledgee is precluded from 
 
 267 
 
§ 307.] PLEDGE OE PAWN. [PAET II. 
 
 between the pledgor and pledgee as would make it the ahso- 
 lute dut}'- of the latter to sell within a specified time, in which 
 •case his liability by reason of failure to sell within the time 
 would not depend on negligence. But in the absence of some 
 such contract there is no liability of the pledgee to the pledgor 
 except for negligence. The exercise of ordinary care in re- 
 spect to the thing pledged is the duty which the law imposes 
 on a pledgee, and for a breach of that duty, only, does he be- 
 •come liable. After the contract of pledge is made, neither 
 party can, by anything he alone may do, vary the duties or 
 powers attaching to the relation. Some cases hold that a re- 
 ■quest to sell may be an element of the proof of negligence, but 
 we express no opinion on the point, nor do we express any 
 where, in the absence of express contract, it is the duty of the 
 pledgee at any time to sell a chattel pledged."^ 
 
 The question has sometimes arisen whether, in case of a fall- 
 ing market, the pledgor could not by request or demand com- 
 pel the pledgee to sell the property, and if he failed to do so, 
 whether in such case the pledgee would not be liable for any 
 depreciation in value where the sale was made at a time when 
 the property had materially depreciated, and the price for 
 which it was sold was very much less than could have been 
 ■obtained for it at the time the request was made by the bailor. 
 It seems, however, to be well settled that the pledgee is not 
 compelled to sell the pledge even when requested so to do 
 by the pledgor, for the reason that the pledgor always has a 
 remedy ; for if he wishes to save himself from depreciation in 
 the value of the pledge, he can redeem the property. This is 
 always his right; and so it follows that he cannot charge the 
 creditor with such depreciation without having first tendered 
 to him the amount of the debt.^ But if the refusal to sell 
 upon request is simply by reason of bad faith, or a faulty dis- 
 cretion equal to negligence, in such case it would seem that 
 there might be a liability to which the bailee would be com- 
 pelled to answer. This is referred to by the court in Wells et 
 al. V. Wells,^ where they say: "It is well understood that in 
 order to charge the pledgee of such a collateral as this with 
 
 1 Cooper V. Simpson, 41 Minn. 46, gard v. Curtenius, 15 Wend. 155; 
 ■4 L. R. A. 194. Rozet v. McClennan, 48 111. 345. 
 
 2 Jones on Pledges, sec. 606; Tag- ^53 vt 1; Hanna v. Helton, 78 Pa. 
 
 268 
 
OH. v.] EIGHTS AND OBLIGATIONS AFTEE DEFAULT. [§ 308.. 
 
 the collateral as a payment fro tanio upon his debt, he must 
 be chargeable with bad faith or faulty discretion in the course 
 taken in respect to the collateral, so that it would be detri- 
 mental and unjust toward the pledgor not so to charge the 
 pledgee." This is no doubt the rule in case the property pledged 
 is negotiable instruments. In such case it is the duty of the- 
 pledgee not only so to deal with them as not to destroy their 
 value, but to use ordinary diligence in making them available 
 for the payment of the debt, and if he suffers indorsed paper- 
 to mature without resorting to the necessary steps to charge 
 the indorser, or fails to pursue reasonably the primary parties,, 
 he may be held responsible for any loss that may ensue.^ To- 
 what extent, however, this rule applies where the pledged 
 property is chattels and not in the nature of negotiable paper,, 
 is not so well settled; but it would seem that where the pledge- 
 is such property, the obligation to sell could not be fixed upon 
 the pledgee upon notice and demand unless it could be shown 
 that the refusal was an exercise of bad faith, and that i.he 
 pledgor would be obliged to rely upon his right to redeem in 
 order to protect himself because of the depreciation. 
 
 § 308. Surplus in the hands of the pledgee, proceeds of 
 the sale. — The only right, title or property of the pledgee in 
 the property pledged is co-extensive with the securing of the- 
 payment of the debt or the performance of the obligation. 
 The legal title to the property is in the pledgor, subject only 
 to this right of security in the hands of the pledgee. It there- 
 fore follows that whenever the purposes of the pledge, that is 
 to say, the securing of the payment of the debt, is satisfied, the 
 pledgor's right to the remainder is absolute. The pledgee 
 being simply a trustee for this amount is bound to account to- 
 the pledgor for whatever he obtains upon the sale of the 
 pledged property, and after deducting the amount due upon 
 
 St. 334. "When the collateral is lost ' Kaston v. German American Bank, 
 
 by the insolvency of the debtor in it, 34 Fed. 533; affirmed, 137 U. S. 533. 
 
 through the supine negligence of the '-If the pledgee sells the pledge 
 
 creditor, he must account for the fairly and publicly he is not ans-sver- 
 
 loss to his own debtor." Baker v. able for the loss from its selling for 
 
 Briggs, 8 Pick. 139; Paine v. Pack- less than its estimated value." Ains- 
 
 ard, 13 Johns. 174; 5 Wait's Acftions -worth v. Bowen, 9 Wis. 348. 
 and Defenses, 384; Cooper v. Simp- 
 son, 41 Minn. 46. 
 
 269 
 
§§ 309, 310.J PLEDGE OE PAWN. [PAET II. 
 
 the indebtedness and the expenses of the sale or other leo'al 
 expenses, he must pay over to the pledgor any surplus that 
 may remain in his hands; and if he fails or refuses so to do 
 the pledgor may collect the surplus due him in an action of 
 assumpsit} 
 
 % 309. (2) Foreclosure by statutory proceedings.— In 
 
 nearly all of the states the foreclosure of the pledge or pawn 
 has been regulated by statute. In some of the states, however, 
 the statute is so worded that it does not preclude a common- 
 law foreclosure. A citation of the several statutes and a dis- 
 cussion thereof would be impracticable here. However, it may 
 be remarked that the statutes of the particular state where fore- 
 ciosure is to be had should be examined.^ 
 
 § 310. (3) Foreclosure in equity. — When the business is 
 complicated and the amount of the indebtedness is large, and 
 a large amount of pledged property is held to secure its pay- 
 ment, or where the pledgor cannot be personally notified be- 
 cause of absence or for some other reason, or where the legal 
 remedy is not adequate, and this even though the statute 
 provides the only mode of foreclosing the pledge, or where 
 the rights and remedies of the pledgee are questioned or de- 
 nied, the pledgee may and should file a bill in equity, and 
 through the court of chancery obtain a decree of foreclosure 
 and for the sale of the pledged property. And so it may be 
 said that where there are conflicting claims to the pledged 
 property, and proceedings in the ordinary way by common- 
 law foreclosure would not settle the conflicting claims, or 
 where there are intervening rights, no matter how they may 
 arise, — in such case the ordinary statutory foreclosure or the 
 common-law foreclosure would be by no means adequate, and 
 the pledgee should proceed by foreclosure in equity, and thus 
 by a decree of that court settle all the controversies between 
 the parties.' It has been said that some question might arise 
 
 1 Jones on Pledges, sees. 649,650; the statute does not affect a common- 
 Foster V. Berg, 104 Pa. St 334; Miles law foreclosure. Colville v. Loud, 135 
 V. Walther, 3 Mo. App, 96; Loomis v. Mass, 41, and Mange v. Heringhi, 26 
 Stave, 73 111. 633; Taylor v. Turner, Cal. .537; Jones on Pledges, sea 616. 
 87 111. 296. 2 Horner v. Savings Bank, 7 Conn. 
 
 2 In Massachusetts and California 478. 
 
 370 
 
OH. v.] EIGHTS AND OBLIGATIONS AFTER DEFAULT. [§§ 311, 312. 
 
 as to the jurisdiction of the equity court where, by statute, the 
 foreclosure is limited to those cases where the remedy by sale 
 or notice is not complete. But it has been held that where 
 the foreclosure in such cases involves an accounting, the equity 
 jurisdiction will be upheld,^ but if it is merely a computation 
 it will be denied.^ 
 
 § 311. The notice and sale by virtue of decree. — The man- 
 ner of giving the notice of sale, the notice as to time and 
 place, the sale, and the entire procedure, where the foreclosure 
 is had in a court of equity, is fixed and settled by the practice 
 and procedure of the chancery court; all such directions are 
 generally given in the decree of foreclosure. 
 
 § 312. When the pledgor is insolvent or bankrupt. — The 
 right of the pledgee to hold and possess the pledged property, 
 when the pledge is without fraud and honestly created to se- 
 cure the debt or obligation, is an absolute property right of the 
 pledgee and he cannot be deprived of it by the pledgor or the 
 pledgor's creditors. It therefore follows that the assignee in 
 bankruptcy cannot convert this interest of the pledgee in the 
 pledged property as an asset of the pledgor. He can only take 
 the interest of the pledgor in the property, which, as we have 
 seen, is the title to the property subject to the pledge; and it 
 has been held that if an assignee realizes on pledged property 
 in the possession of the pledgor for temporary purposes, he 
 holds the proceeds in trust for the pledgee.' In Gibson v. 
 Wa/rden^ the court say: " In cases like this the assignee stands 
 in the place of the bankrupt; his rights are their rights; and 
 theirs, like the liens of judgments at law, are subordinate to 
 all the prior liens, legal and equitable, upon the property in 
 question." If the pledge is fraudulent, then the assignee, stand- 
 ing ia the place of and for the pledgor, and also for the cred- 
 itors of the pledgor, may proceed to have the pledge set aside, 
 and the pledgor by collusion with the pledgee could not thwart 
 the rights of the assignee in this regard. The assignee can do 
 just what the honest pledgor ought to do ; nor can he be de- 
 feated by any fraudulent agreement of the pledgor or pledgee. 
 
 ' Durant v. Einstine, 5 Robt. (N. Y.) » In re Wiley, 4 Biss. (U. S.) 171. 
 433. 414 Wall. (U. S.) 248; Kendall & 
 
 2Dupay V. Gibson, 36 111. 197. Co. v. Mason, 7 Ohio St. 199. 
 
 271 
 
§ 313.] PLEDGE OE PAWN. [PAET II. 
 
 " So while the pledgor could not have the pledge set aside as 
 fraudulent, the assignee might."' 
 
 The authorities are not entirely harmonious as to the pro- 
 ceedings that the pledgee may take in proving his claim and 
 obtaining a settlement of the pledge and securing satisfaction 
 for the pledged indebtedness. It seems clear, however, that 
 the pledgee may sell the pledged property upon default and 
 apply the proceeds of the sale after the pledgor's insolvency. 
 The assignee having taken possession of the rights, interests 
 and property of the pledgor, undoubtedly should receive notice 
 of the sale as well as the pledgor, because legally he stands in 
 the place of the pledgor and is representing a property inter- 
 est in the pledge; but the assignee, it would seem, could not 
 deprive the pledgee of his right to foreclose, nor could he 
 obstruct the sale for the reason that the property will not at 
 the time bring a good price. He would be subject to the same 
 rules and principles, already discussed, that govern the pledgor 
 in such like cases, and the only I'emedy of the assignee, or of 
 the creditors in such case, would be to redeem the property 
 by paying the debt.' Should the pledged property bring more 
 than the amount due the pledgee, then the pledgee must ac- 
 count to the pledgor's assignee for the surplus; and should the 
 property bring less than the amount due the pledgee, he has a 
 claim for the deficiency against the estate, and in that case 
 must take pro rata with other creditors.^ 
 
 Section II. 
 
 § 313. Eights, remedies and liabilities of tlie pledgor 
 and pledgee of negotiable instruments after default.— The 
 
 same rights and remedies that the law accords to the pledgee 
 of corporeal property after default do not in every particular 
 obtain in case the pledged property consists of negotiable in- 
 struments or choses in action. The difference in the rights of 
 the pledgee in case the pledged property is corporeal or con- 
 
 1 Bank of Alexandria v. Herbert, 8 Brough's Estate, 75 Pa. St 460; Van 
 
 Cranch (U. S.), 36; Casey v. Caveroo, Matter v. Ely, 12 N. J. Eq. 211; West 
 
 96 U. S. 467. v.Bankof Rutland,19Vt.403; Midge- 
 
 ^ Jerome v. McCarter, 94 U. S. 734. ley v. Slocum, 32 How. Pr. (N. Y-) 
 
 3Findley v. Hosmer, 2 Conn. 350; 423; Steeper v. McKee, 86 Pa. St. 188; 
 
 Walker v. Baxter, 26 Vt. 710; Richardson v. Wyman, 4 Gray, 553. 
 
 273 
 
CH. A^J EIGHTS AND OBLIGATIONS AFTER DEFAULT. [§ 313. 
 
 sists of negotiable instruments grows out of the difference in 
 the nature and kind of property pledged. Corporeal prop- 
 erty is presumed always to have a market value which repre- 
 sents the true value of the property, while negotiable instru- 
 ments are not presumed to have a value upon the market be- 
 fore they are due, so the selling of them at public or private 
 sale necessarily would work an injustice to the pledgor. The 
 rule, however, is different where the pledged property con- 
 sists of stocks and bonds of corporations. These may be sold 
 at public auction after demand of payment and due notice of 
 sale, the same as corporeal property, because that is the usual 
 method of turning such securities into money. But the rule 
 when the property consists of negotiable instruments, like 
 promissory notes or choses in action, differs from this, for the 
 reason that it is not the " usual method " of turning such se- 
 curities into money. A sale, however, at public auction of 
 the securities in case of default may be stipulated by an agree- 
 ment between the parties, and in such case be legally made, but 
 where there is no such agreement the rule is as we have stated. 
 In Wheeler v. Newbould ^ it was held " that the pledge of com- 
 mercial paper as security for a loan of money does not, in the 
 absence of a special power for that purpose, authorize the 
 pledgee upon the non-payment of the debt, and upon notice to 
 the pledgor, to sell the securities pledged either at public or 
 private sale, but he is bound to hold and collect the same as 
 they become due, and apply the money to the payment of the 
 loan." The court say further: " "When the subject of the pledge 
 consists of goods and merchandise, or chattels of any kind, 
 there is no other way in which they can be applied to the pay- 
 ment of the debt, unless they are first converted into money, 
 which can only be done by a sale. The creditor must resort to 
 this process because there is no other. Goods and merchandise, 
 and personal chattels generally, are constantly bought and 
 sold in the market, and the means to test their proximate value 
 is always at hand. Their value at the place they are offered 
 is their value everywhere else ; because it depends upon their 
 intrinsic worth, and not upon extraneous circumstances. When 
 the creditor, therefore, offers this kind of property for sale to 
 
 1 16 N. Y. 392. 
 18 273 
 
§ 313.] PLEDGE OK PAWN. [PAET II. 
 
 satisfy his debt, he does the debtor no injustice if the sale is 
 public, properly conducted and upon due notice. But where 
 choses in action for the payment of money, notes, bills, bonds 
 and mortgages are the subject of the pledge, the case is widely 
 different. This species of property has no intrinsic value of 
 which one person may judge as well as arjother. They are the 
 written evidences of debts due or to become due from others, 
 and their value depends exclusively upon the solvency and 
 ability of the debtor to pay them at maturity. They are not 
 merchandise in the usual sense of the word; and although they 
 are sometimes the subject of sale, the practice is of recent 
 origin, and evidence of the abuses rather than the legitimate 
 uses of credit. A creditor holding such property in trust for 
 the use of his debtor, ami offering it for sale in satisfaction of 
 his debt, can hardly fail to sacrifice it; for unless the solvency 
 and circumstances of the makers of the note are well known 
 and placed beyond doubt, few Avill purchase, and those only 
 for the purpose of speculation and at ruinously low prices. Un- 
 less the stipulations of the contract are expressly to that effect, 
 the law will not require the debtor to submit his property to 
 an ordeal which must be, in a great measure, destructive of its 
 value. It will rather presume that it was the intention of the par- 
 ties to the contract that the creditor should, if he resorted to 
 the pledge in place of the personal liability of the debtor, ac- 
 cept the money upon the hypothecated securities as it became 
 due and payable, and apply it to the satisfaction of his debt. 
 This is the fair import of the contract; for it is not reasonable 
 to infer an intention to subject to the hazards of a sale a species 
 of property which is not usually the subject of a sale, more es- 
 pecially when that property is itself a means of reimbursing the 
 creditor without loss, or the hazard of loss, to the debtor. The 
 acceptance of the pledge does not suspend the creditor's remedy 
 against the debtor a moment after the debt falls due. But if 
 he resorts to the hypothecated securities, consisting of the writ- 
 obligations of others for the payment of money, he must ac- 
 cept the money upon them as they become due, in place of 
 selling and perhaps sacrificing them at a sale. This is just 
 and right both to debtor and creditor, and the law seeks to ac- 
 complish nothing less." 
 
 274 
 
OH. V.J EIGHTS AND OBLIGATIONS AFTEE DEFAULT. [§ 313. 
 
 In Joliet Iron Co. v. Sciota, etc. Co} the court say : " The pledge 
 of commercial paper as collateral security for the payment of 
 a debt does not, in the absence of a special power for that pur- 
 pose, authorize the parties to whom such paper is so pledged 
 to sell the securities so pledged upon default of payment either 
 at public or private sale. He is bound to hold and collect the 
 same as it becomes due and apply the net proceeds to the pay- 
 ment of the debt so secured." And where a sale has been au- 
 thorized upon default of the pledgor by the agreement of the 
 parties, the courts have construed such an agreement with very 
 great strictness, holding that the power conferred is in deroga- 
 tion of common-law duties and takes the place of wise and 
 equitable safeguards which are interposed for the protection 
 of the pledgor, and relieves the pledgee from such duties im- 
 posed upon him, and that these safeguards and duties are in- 
 tended to prevent fraud and a breach of trust imposed. The 
 authorities, however, are not entirely harmonious upon this 
 subject. In some of the states it has been held that negotiable 
 paper may be sold the same as corporeal property.^ In other 
 respects the rights and remedies of the pledgee are similar to 
 those where the property pledged is corporeal. The pledgee 
 may bring an action upon the debt secured, or may resort to 
 the pledged property ; and if he brings an action upon the 
 
 1 83 111. 549; Union Trust Co. v. well v. National Bank, 90 N. Y. 483. 
 Rigdon, 93 111. 458. " The law is well "The pledging of promissory notes 
 settled, where there is no agreement embraces power to collect." In Han- 
 otherwise, the pledgee in possession na v. Holton, 78 Pa. St. 334: "By an 
 takes only a lien on the property as assignment of collateral security a 
 a security, and is bound to keep the px'ivity in contract is established 
 pledge and not use it to its detri- which invests the assignee with the 
 ment, and to redeliver it on payment ownership of the collateral for the 
 of the debt. His character is that of purpose of dominion over the debt 
 a trustee for the pledgor to return assigned. He alone is empowered to 
 the property if redeemed, and, if not receive the money to be paid upon 
 redeemed, then first to pay the debt, it and to control it to protect his 
 and second to pay over the surplus, rights." 
 
 and he cannot so deal with the trust 2 j)onohoe v. Gamble, 38 Cal. 340; 
 
 property as to destroy or even im- Huyler v. Dahoney, 48 Tex. 234. For 
 
 pair its value." Fletcher v. Dickin- compilation and discussion of au- 
 
 son, 7 Allen. 23; Nelson v. Edwards, thorities, see National Bank of III v. 
 
 40 Barb. 379; Nelson v. Wellington, 5 Baker, 4 L. R. A. 586 and notes; also 
 
 Bosw. 178; Jenness v. Bean, 10 N. H. Golden v. Mechanics' Nat. Bank, 43 
 
 266; Austin v. Curtis, 31 Vt. 72; Far- L. R. A. 737, and the note. 
 
 275 
 
§§ 314-, 315.] PLEDGE OE PAWN. [PAET II. 
 
 debt, he need not, during the pendency of the action, surren- 
 der the security, but may hold the property pledged.' Nor 
 will the judgment, if one is obtained, destroy the right of the 
 pledgee to hold possession of the pledged property. Nothing 
 will deprive him of his right to possession except payment of 
 the debt. 
 
 §314. The English rule. — The English courts generally 
 follow the rule that the sale of negotiable instruments and 
 choses in action, after failure to pay the pledged debt, may be 
 made by making demand and giving notice of the time and 
 place of the sale, the same as though the property were cor- 
 poreal property.^ 
 
 § 315. Recourse to the pledged security. — The pledgee, 
 where the property pledged is negotiable instruments or choses 
 in action, may have recourse to the pledged property in case 
 of default of the pledgor; but his procedure, as we have seen, 
 must necessarily differ from the procedure as stated where the 
 property is corporeal. It is his duty to hold the negotiable 
 paper or chose in action until the same is due and then col- 
 lect it and apply it upon the pledged indebtedness. He may 
 collect the negotiable paper either with or without suit, as the 
 case requires. After collecting sufficient upon the pledged se- 
 curities to satisfy the indebtedness and the cost of collection, 
 it is his duty to account to the pledgor for any surplus, either in 
 money or securities, remaining in his hands after the pledged 
 indebtedness is thus satisfied. The pledgee thus holding nego- 
 tiable instruments as securities stands in the position of a 
 trustee of the property ; he is bound to exercise ordinary care 
 in looking after the pledge. It is not only his right but it is 
 his duty to collect the amount due upon the securities. 
 
 The supreme court of Illinois, in the case of JoUetlron Co. v. 
 Sciota Iron Co., say: "A person holding property or security 
 in pledge occupies the relation of trustee for the owner, and 
 as such, in the absence of special power to do otherwise, is 
 bound to proceed as a prudent owner would." This sums up 
 the duty of the pledgee holding the pledged negotiable instru- 
 
 1 Elder v. Rouse, 15 Wend. 318: 2 France v. Clark, L. E. 23 Cli. Div. 
 Hunger v. Albany City Nat, Bank, 830; 53 L. J. Ch. (N. S.) 263; 48 L. T. 
 85 N. Y. 580; Whit well v. Brigham, (N. S.) 185; Potter v. Thompson, 10 
 19 Pick. 117. R. I. 1. 
 
 276 
 
CH. V.J EIGHTS AND OBLIGATIONS AFTER DEFAULT. [§ 316. 
 
 ments. If he fails to exercise that diligence and care which a 
 prudent owner under just such circumstances would exercise, 
 he becomes liable for any injury that may result because of 
 such negligence to the pledgor or his assigns. 
 
 § 316. The pledgee's diligence in collecting the securities. 
 The pledgee is a bailee of the securities for the benefit of both 
 parties. He must therefore exercise ordinary diligence in per- 
 forming every duty incumbent upon him. What would the or- 
 dinarily prudent owner of just such negotiable instruments do 
 under just such circumstances? The answer to this question 
 defines the duties of such a pledgee and fixes as well his liabil- 
 ity. The court in Hazard v. Wells ^ say: " A creditor holding 
 negotiable paper as collateral security is requi-red to use a dif- 
 ferent kind of diligence from that required of one holding mer- 
 chandise or other corporeal property, and yet the diligence in 
 each case is only such as is appropriate to the nature of the 
 property. If the property be precious stones, safe keeping is 
 all that is required. If it be grain, it must be properly stored 
 and protected from all injury. The diligence required of the 
 holder of promissory notes, or other securities for the payment 
 of money, has reference to the danger that the parties liable 
 on them may become insolvent and unable to pay. A prudent 
 business man will collect such obligations when they are due, 
 or will endeavor to enforce them by suit. If, therefore, a cred- 
 itor neglects to enforce the collection of such securities held in 
 pledge, and delays till the parties liable have become insolvent, 
 he is as much guilty of negligence as if he had suffered grain 
 held in pledge to be destroyed by dampness or heat for lack 
 of proper storage." The degree of diligence, however, that is 
 required to be exercised by the pledgee may be modified by 
 an agreement between the parties. As, for example, it has 
 been held that where the parties make an express agreement 
 as to the diligence to be used, they will be bound by that and 
 
 1 3 Abb. N. Cas. (N. Y.) 440. " Where ment as to the diligence to be used." 
 
 the pledgee iinows that the maker of Lee v. Baldwin, 10 Ga. 208; Muirhead 
 
 a pledged note is in emban-assed cir- v. Kilpatrick, 21 Pa. St. 237; Girard 
 
 cumstances he must use greater dili- F. & M. Ins. Co. v. Muir, 46 Pa. St. 504; 
 
 gence than if the maker were known Miller v. Gettysburg Bank, 8 Watts 
 
 to be solvent." Slevin v. Morrow, 4 (Pa.), 192; Reeves v. Plough, 41 Ind. 
 
 Ind. 425. "The parties may bind 209; Jones v. Hicks, 52 Miss. 683. 
 themselves, however, by an agree- 
 
 377 
 
§ 317.] PLEDGE OE PAWN. [PAKT II. 
 
 not by the general law.^ But, whatever the agreement may 
 be, or whatever the condition of the case, the law requires 
 that the pledgee shall act in the utmost good faith. This is a 
 rule that obtains throughout the law of bailments, and applies 
 to this class of cases. 
 
 § 317. Pledgee may recover in an action on the negotiable 
 securities. — Negotiable paper having been pledged and placed 
 in the hands of the pledgee, the pledgee may recover, in an 
 action upon the security, a judgment against the maker and 
 indorsers of the paper when the same becomes due, and he 
 need not wait until the pledgee's indebtedness is due, but may 
 collect by a suit at law or otherwise upon the collaterals and 
 hold and apply the amount collected on the pledge. In such 
 action he will be entitled to a judgment for the full amount 
 of the collateral even though it exceeds the amount of the 
 debt secured. If, however, there are equities in favor of the 
 maker against the pledgor, the pledgee could not recover 
 an amount more than sufficient to meet the pledged indebted- 
 ness, the theory of the law being that the maker is liable for 
 the full amount of the face value of his paper, and the pledge 
 can in no way either benefit or injure him.' And so where 
 the pledgee holds accommodation paper as security, he having 
 obtained the pledge in good faith for a legal and subsisting 
 debt, the presumption attaches that he gave full value for it, 
 and he can recover the full amount due upon the paper to meet 
 the amount of the pledged indebtedness, and in such case the 
 pledgor cannot enjoin the collection of such paper until the 
 
 iLee V. Baldwin, 10 Ga. 208; Bar v. ment to the contrary, bring differ- 
 
 Cain, 33 Ind. 416. ent suits, one on tlie original debt 
 
 2 Wilkinson V. Jeffreys, 30 Ga. 153; and others on the collaterals, and 
 
 Tarbell v. Stuyvesant, 26 Vt. .^13; prosecute them all to judgment, and 
 
 Holeraan v. Hobson,8 Humph. (Tenn.) collect on the judgments at least the 
 
 127; Parish v. Stone, 14 Pick. (Mass.) amount of the original indebtedness 
 
 198; Fisher v. Fisher, 98 Mass. 303; and the costs in all the suits. If he 
 
 Beldingv. Manley, 31 Vt.'j.jU; Jackson collects anything on the collaterals 
 
 V. Bank, 43 N. J. L. 177; Duncomb v. after the indebtedness which they 
 
 N. Y. Ry. Co. 84 N. Y. 190; Green- were assigned to secure is paid, lie 
 
 wall V. Hayden, 78 Ky. 332; Mfg. Co. receives it, of course, for the benefit 
 
 V. Falvey, 2U Wis. 311. "But if notes of tbe assignor." Bank v. Roberts, 
 
 are assigned as collateral security 4.) Wis. 373; Tooke v. Newman, 75111. 
 
 for a debt, the holder may at the 315. 
 same time, unless there is an agree- 
 
 378 
 
en. v.] EIGHTS AND OBLIGATIONS AFTER DEFAULT. [§ 317. 
 
 creditor holding the same shall first exhaust other securities 
 for the same debt placed with him by his debtor. This has 
 been held to be the rule of law even though the making of 
 such paper was procured by fraud. The presumption that the 
 pledgee paid full value for the paper may, however, be over- 
 come by proof, and if it be shown that the paper is accommoda- 
 tion paper, and that the pledged indebtedness can be satisfied 
 by a less sum than the amount due, then judgment will only 
 be allowed for an amount necessary to satisfy the pledged 
 debt. And in such case the principle of equity, that " where a 
 party has a lien upon two funds, out of either of which his debt 
 can be paid, and another has a lien on one only of the funds 
 for his debt, the latter has a right to compel the former to re- 
 sort to the other fund in the first instance for the satisfaction 
 of his debt," does not apply ; this is applied only to sureties.' 
 An interesting case where this subject is very thoroughly 
 discussed by counsel and court is Farwell v. Importers', etc. 
 Bank? " Plaintiffs made their promissory note to their own 
 order which they indorsed to brokers to sell. The brokers, 
 without the plaintiffs' knowledge or consent, delivered said 
 note, with others belonging to themselves, to defendant, as se- 
 curity for a call loan. Before the maturity of said note plaint- 
 iffs notified defendant of their rights in respect to it; they paid 
 the note when due. At that time defendant had not received 
 enough from the other collaterals to pay the loan, but there- 
 after did receive more than enough for that purpose. In an 
 action for an accounting to determine defendant's rights to the 
 proceeds of said note and to compel payment of any portion 
 thereof not necessary to satisfy its lien thereon, held, that hav- 
 ing received the note from the ostensible owners in ignorance 
 of the plaintiffs' rights, defendant could hold the same as se- 
 curity; yet the right of property did not pass, but remained in 
 plaintiffs, subject to defendant's lien; and while the latter, as 
 
 1 Fisher et aL v. Fisher et al, 98 own of less amount than the face of 
 
 Mass. 303. " If a negotiable promis- the note, the pledgees, if they take it 
 
 sory note, which is without consid- witliout notice, ai-e to be deemed 
 
 eration as between the original par- holders for value, and may maintain 
 
 ties thereto, is delivei'ed without an action thereon for the amount 
 
 consideration to another person, who due to them upon the debt which 
 
 pledges it, before its maturity, as it was pledged to secure." 
 
 collateral security for a debt of his 2 go N. Y. 483. 
 
 279 
 
§ 317.] PLEDGE .OE PAWir. [PAET II. 
 
 pledgee, had the right to collect the note when due, as the loan 
 had not been paid, the money collected remained as a substi- 
 tute for the note and subject to plaintiffs' equities, the same as 
 though the note itself had remained uncollected; that after the 
 notice, plaintiffs stood as mere sureties for the loan, to the ex- 
 tent of their note, and before resort was had thereto could com- 
 pel the application of the proceeds of the securities belongino- 
 to the brokers, and when sufficient was received therefrom to 
 satisfy defendant's claim, the proceeds of the note were released 
 from the lien, and plaintiffs were entitled to recover the same." 
 In Morris Canal & Banking Co. v. Lewis'^ the court say: "It 
 was held by this court in the case of Morris Canal & Banking 
 Co. V. FisJier, 1 Stock. 007, that the coupon bonds of an incor- 
 porated company are transferable by delivery, so that a hona 
 fide holder has a good title to them. It rests upon the faith 
 that such bonds are expressly designed to be thus circulated, 
 and to be sold in the stock market like public securities, and 
 that they are universally so used. When bonds of such char- 
 acter, having several years to run before they become due, are 
 deposited as collateral security for the pajnnent of promissory 
 notes soon to mature, the fair presumption is that they were 
 designed to be held as a pledge, and were expected to be sold, 
 after demand and due notice, like goods, chattels, stocks and 
 public securities, in case the debt for which they were pledged 
 should be punctually paid. Such a deposit differs entirely 
 from a deposit of ordinary bonds, mortgages, promissory notes, 
 and like choses in action, which, in the absence of an agree- 
 ment to that effect, the creditor cannot expose to sale, because 
 they have no market value, and it cannot be presumed it was 
 tlie intention of the parties thus to deal with them."' The law 
 throws the same safeguards around such a sale on the foreclos- 
 ure of the pledge that usually protect the pledgor when the 
 pledged property is corporeal. The sale must be fair and open, 
 and every reasonable effort used to obtain the best price for the 
 property sold, and no more property than is necessary to dis- 
 charge the pledge will be allowed to be sold.^ And it has 
 been held that when several different lots of stock have been 
 given to secure the debt, they should be sold separately.' 
 
 1 13 N. J. Ch. 333. 3 Mahoney v. Caperton, 15 Cal. 313. 
 
 2 Newsome v. Davis, 133 Mass. 343. 
 
 280 
 
OH. T.J EIGHTS AND OBLIGATIONS AFTER DEl'AULT. [§ 318. 
 
 § 318. Compromise. — The pledgee of negotiable paper or 
 «hoses in action has no right to take a less amount than is due 
 upon the pledged security from the maker, or from those liable 
 upon the security; and it is a general rule that if he does so he 
 becomes liable for the difference between the amount received 
 and the face value of the security, provided there is no contract 
 allowing such a compromise.^ There are cases where such a 
 •compromise has been upheld, and so it may be said that there 
 are exceptions to the rule; as where the maker of the collateral 
 is insolvent and nothing can be collected upon the security by 
 process of law, and the compromise would be for the best in- 
 terest of both parties. It was so held in Exeter Bank v. Gordon? 
 The court say: "It is without doubt a well settled, general rule 
 that the pledgee has no right in such a case to compromise for a 
 less amount than the sum due on the face of the security. There 
 are, however, exceptions to this rule; but admitting for the 
 present that the general rule is applicable to this case, the ques- 
 tion will then be, has the wrongful act made the bank account- 
 able for the whole sum due on the note, or only for the value 
 of the note? There seems to be no reason to suppose that the 
 compromise Avas not, on the whole, highly advantageous to the 
 Oordons and the bank; and the complaint of this defendant is 
 not that anything in fact is lost by it, but that it was made 
 without authority. If the bank had wrongfully taken the 
 note and converted it to their own use, they would have been 
 answerable only for the value. ... If, then, we follow 
 that analogy in this case, we must hold that the bank is liable 
 only for what it received, if the compromise was on the whole 
 advantageous to all concerned." 
 
 A power of sale after default will not authorize the pledgee 
 to sell the security to the maker for a less sum than the face 
 value. Such a sale would not be considered as authorized, 
 but rather as a compromise and so unauthorized.' The pledgee 
 is also protected in his holding of the security, and he cannot 
 
 'Zimpleman v. Veeder, 98 111. 613; "But a pledgee of a promissory note, 
 Wood V. Mathews, 73 Mo. 497; Union with a power of sale in case of de- 
 Trust Co. V. Rigdon, 98 111. 458. fault, does not authorize the pledgee 
 
 2 8N. H. 66: Story on Bailments, to compromise with the maker of the 
 
 314; Bowman v. Wood, 15 Mass. 534; note and take less than was due 
 
 ■Garlick v. James, 12 John. 146. thereon, where the note was well se- 
 
 'Zimpleman v. Veeder, 98 111. 613. cured and absolutely worth its face 
 
 281 
 
§ 319.] PLEDGE OE PAWN. [PAET II. 
 
 be compelled, even by the pledgor, to accept a compromise of 
 the security,' or to accept any other paper or security in the 
 place of it. The pledgee cannot be compelled to accept any- 
 thing but money in payment or satisfaction of the pledged in- 
 debtedness, in the absence of a contract requiring him to do 
 so ; and an offer to turn over to him property, no matter if 
 it be of greater value than the amount of the debt, cannot 
 avail the pledgor anything, nor is the pledgee bound, upon 
 such an offer being made, to notify the debtor upon the col- 
 lateral.^ On the other hand, should the pledgee accept prop- 
 ert}^ as payment of the collateral, he would be liable to account 
 to the pledgor for the full face value of the pledged security. 
 If, however, the debtor consent to a compromise that has been 
 made by the pledgee with those liable upon the collateral, 
 then it would be binding, and this consent may be either ex- 
 press, or implied by the acts of the bailor. 
 
 In case of an illegal compromise and surrender of the securi- 
 ties, the pledgor has the option of commencing either of two 
 actions: (1) he may sue the maker or those liable upon the col- 
 lateral and have judgment for an amount equal to the differ- 
 ence between the amount due upon the pledged indebtedness 
 and the face value of the security; or (2) he may sue the 
 pledgee and have judgment for a like amount. 
 
 Section III. 
 
 § 319. Eights and liabilities of pledgee of stoclis and bonds 
 of corporations after default. — The rights and liabilities of 
 
 value. And a sale by the pledgee of sum less than is due thereon, but 
 
 a negotiable promissory note under which is enough to pay the persona! 
 
 a contract conferring power to sell debt, is not a sale within the mean- 
 
 for an amount much less than the ing of the power conferred, but is 
 
 face value of the note, without notice a compromise which renders the 
 
 to the pledgor, will not be regarded pledgee liable in an action on the 
 
 as sucli a sale as the law requires, notes to the pledgor for the injury 
 
 but rather as a compromise between thereby sustained; and if at thesame 
 
 the pledgee and the maker of the time he sells other collaterals of the 
 
 note." same debtor, the whole transaction 
 
 1 In Union Trust Co. v. Rigdon, 93 being a tort, the pledgor may recover 
 
 III 458, it was held " that the surren- for the whole." 
 der by a pledgee of promissory notes '^ Rives v. M'Losky, 5 Stew. & "■ 
 
 as collateral security who has an ex- (Ala.) 330; Rhinlander v. Barrow, 17 
 
 press written authority to sell at John. (N. Y.) 538, 
 public auction or private sale for a 
 
 283 
 
CH. V.J BIGHTS AND OBLIGATIONS AFTEE DEFAULT. [§§ 320, 321. 
 
 a pledgee of stocks and bonds of corporations after his de- 
 fault in not paying the pledged indebtedness are not dissim- 
 ilar to his rights and liabilities when the pledged property is 
 corporeal. He may bring his action and recover a judgment 
 for the indebtedness and hold and avail himself of the security 
 the same as in the case of corporeal property, or he may fore- 
 close the pledge by giving the usual notice of sale at common 
 law after demand of payment of the debt secured, the law 
 following out the theory already stated, namely, that this iiind 
 of property usually has a market value, which can be realized 
 by placing it upon sale. Stocks and bonds are bought and sold 
 in the market without reference to their maturity, and so such 
 pledges may be foreclosed by public sale after demand of pay- 
 ment and due notice of the sale.^ 
 
 § 320. Stocks held by brokers purchased on margins. — 
 There is an immense business carried on in this countr}'^ through 
 brokers, who, for a certain agreed amount advanced to them 
 upon the price of stocks purchased, called margins, advance 
 the balance of the amount necessary to make the purchase for 
 the customer, the broker holding the stock and the margin as 
 his security for the purchase price advanced by him, having 
 at all times the right to demand and have paid to him suf- 
 iicient further amounts, or margins, to at all times make the 
 stocks sufficient security for the amount due from the cus- 
 tomer upon them. Such transactions are embraced in the law 
 of pledge; the broker being the pledgee, the customer for 
 whom he holds the stocks upon margins the pledgor, and the 
 amount remaining due upon the stocks for the purchase price 
 thereof, the pledged indebtedness. It must be admitted that 
 the course of business, and the rights and liabilities of the par- 
 ties, somewhat differ in these particular transactions from that 
 of the ordinary pledging of property as security for the pay- 
 ment of a debt, but nevertheless the questions involved must be 
 settled by the rules of law applicable to pledgor and pledgee. 
 § 321. Custom, usage and course of business, — The rules 
 of law fixing the rights and liabilities in this kind of business 
 are the result of the business customs and usages which have 
 
 ilnd. & 111. Cent. R. Co. v. MoKennan, 24 Ind. 62; Merchants' Nat. Bank 
 V. Thompson, 133 Mass.183. 
 
§ 322.] PLEDGE OE PAWN. [pAKT II. 
 
 been adopted and acquiesced in by brokers and customers; the 
 known and recognized rules and regulations of boards of trade 
 and stock exchanges, the agreements of the parties expressed 
 as well as implied by the long-continued and well-understood 
 course of business. The customer, no doubt, has- the right to 
 redeem the stock by paying to the broker the amount due 
 upon it, and in such case the broker would be bound to de- 
 liver to him the certificate of the stock purchased, and, in case 
 of failing or refusing to do so, would be subject to the usual 
 liability of a bailee in such cases; and this right to redeem, as 
 in other cases, exists so long as the pledge remains unfore- 
 closed. 
 
 §322. Foreclosure of the pledge where stocks are held 
 on margins. — The foreclosure of the pledge differs somewhat 
 from the foreclosure of the ordinary pledge where the property 
 is corporeal, or where it is stocks and bonds of corporations, 
 already noticed. Here the parties are largely governed by cus- 
 toms, rules and regulations that have become known and estab- 
 lished, and have been recognized and agreed to at the time of the 
 purchase, and, by the very fact of the purchase, are understood 
 between the parties to have been agreed to. The margins, as we 
 have seen, have been paidto the broker from time to time to keep 
 his security good for the amount advanced. These amounts 
 or margins must, of course, be reasonable, but are fixed by the 
 broker and must be paid by the customer after reasonable no- 
 tice. There is no fixed time when the whole amount due for 
 purchase price shall become due and payable; it is presumed 
 that at some time the stocks are to be paid for, and that time 
 may be said to be within a reasonable time, and at that time 
 the broker has the right to demand that the business be closed. 
 Should the customer fail upon reasonable notice to pay the 
 margins demanded, or fail after a reasonable time, and upon 
 demand and reasonable notice, to pay the amount due the broker 
 for advances, in either case the broker may sell the stocks in 
 the market at their then market value and close up the account, 
 accounting to the customer for the amounts received upon the 
 sale and for the margins which have been paid, if he can do 
 so, after reserving for himself the full amount advanced with 
 interest and commissions. ISTo public sale is required. Custom 
 
 284 
 
CH. v.] 
 
 EIGHTS AND OBLIGATIONS AFTER DEFAULT. 
 
 [§ 323. 
 
 and usage and the general and usual course of trade has fixed 
 and settled this as the legal foreclosure, and after such sale, if 
 it is free from fraud, there is no redemption.^ 
 
 Section IV". 
 
 § 323. The rights and liabilities of the pledgor after de- 
 fault. — The pledgor has a right at any time before foreclosure 
 of the pledge to redeem his propertj' from the lien thereof by 
 paying the debt or obligation, or the amount due upon the pledge, 
 or, in case of the refusal of the pledgee to accept that amount, 
 by tendering to him the amount due. But if the pledgor 
 should fail to do this, and by reason of his default in not pay- 
 ing the debt for which the property was pledged, when due, 
 the pledgee could legally foreclose the pledge and sell the 
 property. In this case the pledgor's rights and interests in 
 the pledged property would be gone, and he would have no 
 further right of redemption. But in order to cut off the pledg- 
 or's right to redeem, the foreclosure must be legal and regular, 
 otherwise the pledgor would have a right of action as for con- 
 
 1 In Denstan v. Jackson, 106 111. 733, 
 it was held: "In the absence of any 
 contract between a broker and cus- 
 tomer with regard to notice of sale, 
 and of any rule of the board of trade, 
 the common law would govern re- 
 garding reasonable notice to the cus- 
 tomer to make his margin good in 
 order to justify the sale." In Gra- 
 man v. Smith, 81 N. Y. 25: "Where 
 stocks are held by a broker for a cus- 
 tomer on a margin, it is a part of the 
 contract that if the stock depreciate 
 the margin shall be kept good on de- 
 mand, and, upon failure to do so, the 
 stocks may be sold upon reasonable 
 and customary notice; but where the 
 stock depreciates and a call for ad- 
 ditional margin is made and com- 
 plied with, and afterwards a second 
 call is made which is not complied 
 with, and the broker sells the stock 
 without notice, the sale is irregular 
 and constitutes a conversion." In 
 Hanks V. Drake, 49 Barb. 186: "The 
 notice required in the case of a sale 
 
 of pledged stock as security for the 
 payment of money advanced thereon 
 is not required in the case of a pui-- 
 chase by brokers as agents advanc- 
 ing money therefor, but the brokers 
 must give the customer notice that 
 his margin is diminished and that 
 they require a further margin, and a 
 reasonable time must be given him 
 in which to comply before the stock 
 can be sold." Worthington v. Tor- 
 mey, 34 Md. 182. The New York 
 court of appeals has held r " The rela- 
 tion existing between a customer 
 and a broker with reference to stocks 
 purchased by the broker on a margin 
 for the customer is that of pledgor 
 and pledgee, and if the broker sells 
 the stock without demanding addi- 
 tional margin or giving the customer 
 reasonable notice of the sale, it will 
 be wrongful and operate as a con- 
 version." Gillett V. Whiting, 120 
 N. Y. 402; Baker v. Drake, 66 N. Y. 
 518, 23 Am. Rep. 80. 
 
 285 
 
gj5 32-1, 325.] PLEDGE OE PAWN. [PAET IJ. 
 
 version of the property, and might, even after such foreclosure 
 tender to the pledgee the amount due and recover the pledo'ed 
 property. 
 
 § 321. The pledgor may waive irregularity.— The pledgor 
 may, however, by express or implied ratification of the fore- 
 closure sale, or otherwise, waive the irregular or illegal pro- 
 cedure of the pledgee. As, for example, where the pledgee 
 sold the property without giving the proper notice; or where 
 he sold it at private sale, having no authority to do so, and the 
 pledgor accepts, after such irregularities, the money received 
 and appropriates it to his own use after knowing all the facts' 
 or where the pledgee stood by and witnessed the illegal or ir- 
 regular disposition of the property on foreclosure of the pledge, 
 allowing 'bona fide purchasers to buy the property, making no 
 objection, in such cases the pledgor would be estopped from 
 taking advantage of the irregular or illegal proceeding.' 
 
 §325. Redemption in equity. — Equity will not, ex- 
 cept in very unusual cases, take jurisdiction and decree a right 
 of redemption in this class of cases, for the reason that the 
 legal remedy is generally adequate and gives full and complete 
 relief. The pledgor may, upon satisfying the pledged indebted- 
 ness, or offering to do so by legally tendering the required 
 amount, recover the pledged property by an action of replevin, 
 or its value in an action of trover in case the pledgee should 
 refuse to deliver the property. The legal title to the property, 
 it will be remembered, is always in the pledgor; it has onl)' 
 been incumbered by a special lien or right of possession, which 
 is satisfied and removed when the pledged indebtedness is sat- 
 isfied, so that the pledgor then has the title and right to pos- 
 session unincumbered, and the law will give him the property. 
 In this respect a pledge difl:ers from a mortgage. By themort- 
 
 1 Hamilton v. State Bank, 23 Iowa, the sale and did not object to it, but 
 
 306; Galigher v. Jones. 129 U. S. 193. made a bid, and after the sale the 
 
 '■ And a sale of a pledge by a pledgee pledgor, with the pledgee and pur- 
 
 cannot be avoided on the ground chaser, joined in celebration of the 
 
 that no demand was made on the sale, and the sale was held in a room 
 
 pledgor for payment, and that the which, though generally open only 
 
 pledgee did not give the pledgor any to members of the board of trade, 
 
 notice of the time and place of sale, was open to the public at the time 
 
 and that the sale was not at a public of the sale." 
 auction, where the pledgor attended 
 
 386 
 
CH. V.J EIGHTS AND OBLIGATIONS AFTER DEFAULT. [§§ 326-27. 
 
 gage, the property mortgaged is conveyed subject to a defeas- 
 ance clause, while in case of a pledge the title remains in the 
 pledgor; and so, even where bj' the agreement pledging the 
 property it is stipulated that upon failure to pay the indebted- 
 ness upon a certain due day the property shall become the 
 property of the pledgee absolutely, this agreement, being void, 
 will not affect the right of the pledgor to redeem at any 
 time after the due day and prior to a legal foreclosure of the 
 pledge; and in such case the remedy at law is adequate.^ 
 
 §326. Equity in some cases will take jurisdiction. — If 
 the redemption involves a long and difficult accounting, such 
 an accounting as belongs to the jurisdiction of a court of equity, 
 the equitable remedy might be invoked ; or if some special rea- 
 son existed, as that a discovery was wanted.'^ So in case cer- 
 tificates of stock have been transferred to the pledgee upon 
 the books of the company, the pledged property thus having 
 passed to the pledgee, he having the legal title and refusing to 
 reconvey, a court of equity will decree a reconveyance upon 
 the pledge being satisfied; for in such case the legal remedy 
 would not be adequate.' 
 
 §327. Accounting for the pledged property. — Whether 
 the property pledged be corporeal or incorporeal, as promissory 
 notes, bonds, mortgages or negotiable paper, or choses in ac- 
 tion, or whether it be bonds or stocks of corporations, or stocks 
 held upon margins, when the pledged indebtedness is dis- 
 charged or satisfied, it becomes the duty of the pledgee to 
 faithfully and fairly account for all the proceeds of the pledged 
 property, and all the moneys or benefits that he has received 
 on account of the pledge, and to redeliver to the pledgor all 
 that remains in his hands which has not been legally disposed 
 of; for when the object of the pledge has been carried out 
 and has ceased to operate, the whole beneficial interest in the 
 pledged security vests absolutely in the pledgor, and it becomes 
 the duty of the pledgee to redeliver the pledged property or 
 to account for it. 
 
 1 Genet v. Howland, 45 Barb. (N. Y.) Co., 50 N. H. 57; Durant v. Einstein, 
 
 560;DoakT. Bank, 6Ired. (N. C.)309. 35 How. Pr. (N. Y.) 223; Beatty v. 
 
 -Story on Eq. Jur., sec. 1032; Has- Silveston, 3 Nev. 238. 
 lirouckv.Vandervoort, 4Sand.(N'. Y.) SRryson v. Eaynor, 25 Md. 242 
 
 7i; Kemp v. Westbrook, 1 Ves. 278; Hasbrouck v. Vandervoort, 4 Sand. 
 
 White Mt. R. Co. v. Bay State Iron (N. Y.) 74. 
 
 387 
 
§ 32S.] PLEDGE OE PAWN. [PAET II. 
 
 §338. Termination of the relation. — The pledge may be 
 terminated (1) by redelivery of the property, (2) by payment 
 of the debt or performance of the obligation, (3) by tender of 
 the amount due, (4) by loss or destruction of the pledged prop- 
 erty, (5) by sale by the pledgee or by his misuse of the property, 
 (0) by merger, and (7) at the pledgor's option, by conversion 
 by the pledgee. 
 
 These several v^^ays of terminating the relation have been 
 more or less discussed and we need but call attention to them 
 in this connection. 
 
 (1) By redelivery of the property. — Possession of the prop- 
 erty is essential to a valid pledge ; and while, as between the 
 pledgor and pledgee, the pledged relation might not be extin- 
 guished by a temporary redelivery of the property as between 
 'bona fide purchasers or creditors of the bailor, the pledge would 
 be at an end. The parties, of course, could terminate the rela- 
 tion b}^ an agreement to that effect. 
 
 (2) By p)ayment of the debt. — This has been fully discussed. 
 The pledge only exists for the purpose of securing the payment 
 of the debt or performance of the obligation, and when that is 
 done it goes without saying that the lien pledged could have 
 no further existence. 
 
 (3) Tender of the amount due. — Tender of the amount due, 
 and a demand for the redelivery of the property, would, as we 
 have seen, work the same result as a payment or performance 
 of the obligation. 
 
 (4) By loss or destruction of the pledged property. — In such 
 case the pledge or lien of the property would cease, because 
 there would be no subject-matter to which it could attach. 
 The question of liability might be important. The bailee is 
 bound, as we know, to exercise ordinary diligence in the caro 
 of the property ; so if it was lost through his fault, the pledgor 
 would be entitled to a release of the indebtedness to the extent, 
 at least, of the value of the property ; and if the value of the 
 property should exceed the amount of the indebtedness, to a 
 judgment for the excess. If the loss were not occasioned by 
 the fault of the bailee, or if it were occasioned by the fault of 
 the bailor, then the debt would in no way be extinguished by 
 reason of the loss. 
 
 288 
 
CH. T.] EIGHTS AND OBLIGATIONS AFTEE DEFAULT. [§ 328. 
 
 (5) By sale of the pledged property or iy his misuse of it. — If 
 the pledgee without authority undertakes to sell the pledge and 
 thus deprive the pledgor of it, or if he misuses it, thus violating 
 the object of the pledge and the implied agreement, it would 
 be held to be a conversion upon his part and the lien of the 
 pledge would be extinguished, and the pledgee in such case 
 would be liable for the damage occasioned by such a conversion. 
 
 (6) By merger. — Where the pledgee purchases the title of 
 the pledged property from the pledgor, he would own both 
 the title and the right to the possession, and the lien of the 
 pledge would merge in the title thus purchased by the pledgee. 
 
 (7) By conversion. — Conversion may be the result of the 
 illegal procedure of the bailee. So long as the debt remains 
 unpaid and is not barred by the statutes of limitation, and the 
 bailee has not been guilty of a misuse of the property, or of 
 some of the acts which would terminate the lien, there can be 
 no conversion. 
 
 "When for any reason the lien of the pledge has been extin- 
 guished, it is the duty of the pledgee to redeliver the property 
 pledged, or the balance remaining in his hands, and he cannot 
 avoid this duty unless it transpires that the pledgor was not the 
 real owner, and in that case he must deliver it to the real owner. 
 Should he fail upon demand to so redeliver the property or to 
 account for it, the pledgor, or the real owner, could at his option 
 bring an action to recover the property or its value. 
 19 ' 289 
 
PAET THIED 
 
 INNKEEPERS AND BOARDING-HOUSE 
 KEEPERS 
 
 CHAPTEE I. 
 
 INNS AND INNKEEPERS. 
 
 329. An inn. 
 
 330. Who are innkeepera 
 
 331. The test. 
 
 § 332. Some essential characteristics. 
 333. Restaurants and cafes. 
 
 Thus far we have discussed ordinary bailments, that is, that 
 class of bailments which falls within the ordinary liability that 
 attaches to bailees. We are now to discuss one of the classes 
 of extraordinary bailments, *'. e., a bailment where the liability 
 which attaches is extraordinary. 
 
 § 329. An inn. — While the origin and history of the inn 
 would no doubt be of very great interest and profit to the 
 student, we cannot expect to give here in detail more than may 
 be deemed suiBcient to help us to comprehend the reasons for 
 the extraordinary rules of liabilit}' that the law has attached 
 to the innkeeper, in its efforts to surround the guest with what 
 was, in the early days at least, deemed a necessary protection. 
 
 An inn has been defined to be "a public house for entertain- 
 ment for all who choose to visit it." In discussing this subject 
 our thoughts are at once occupied with the history of the old 
 English inns and the French hostelries so prominent in the 
 earlier history of travel and entertainment in those countries. 
 We remember the descriptions of the scenes of revelry and 
 good cheer, and often the dangeT, the riot and robbery. The 
 smoking mugs of hot-brewed ale, with hot brandy and water 
 quaffed amid the curling tobacco smoke of the bar-room, help 
 to set the picture. Such scenes were seldom if ever interrupted 
 except by the arrival of a cavalcade of travelers making their 
 
 291 
 
§ 329.] INNKEEPERS — BOAEDING-HOUSE KEBPEE8. [PAET HI. 
 
 waj'^ through a dangerous and almost roadless country, or the 
 winding of the blasts from the trumpet of the coach-driver as 
 he approached the inn where passengers, travelers, servants 
 and animals were to be refreshed and cared for. It was the 
 place where "everything needed for the traveler on his way " 
 was supposed to be kept and furnished for hire, whether it be 
 for man or beast ; so within the curtilage of the inn were found 
 not only the house that sheltered, and warmed, and furnished 
 entertainment for the guest and his servants, but the yards,. 
 barns and stables where the animals and vehicles that brought 
 the guests were cared for. The inn comprised all these, and 
 all these were said to be the inn. 
 
 The definition in Lacey v. Thompson ^ by Best, J., gives us 
 something of an idea of the English inn: "A house, the owner 
 of which holds out that he will receive all travelers and so- 
 journers who are willing to pay a price adequate to the sort 
 of accommodation provided, and who come in a situation in 
 which they are fit to be received." And the definition of 
 Bailey, J., found in the same case: "A house where a traveler 
 is furnish.ed with everything which he has occasion for while 
 on his way." These definitions, it will be noticed, include both 
 solids and fluids, whatever the traveler " has occasion for 
 while on his wajj-," whether it be that is desired by him to eat 
 or to drink. So it would seem that it was essentially a place 
 where not only provisions were furnished, but where wines, 
 spirituous or malt liquors were provided for those who patron- 
 ized the inn. And not only this, but the inn of greatest com- 
 pleteness must furnish, as well, entertainment for the horses or 
 animals of the guest as well as for the guest himself. It need 
 not be said that long since it has been held that very many of 
 these essentials of the earlier inn are not necessary or fur- 
 nished in the hotel or public house for the entertainment of 
 travelers and guests of modern days. 
 
 A very interesting history of the inns of the earlier days is 
 given in the opinion of Mr. Justice Daly in the case of Crom- 
 well V. Stevens, a New York case.^ He says: . . . "Tiie 
 word is of French origin, being derived from 'hostel,'' and 
 more remotely from the Latin word 'hospes,'' a word having 
 a double signification, as it was used by the Komans both to 
 
 ' 3 B. & Aid. 283; 5 Eol. 285. 2 3 Daly, 15. 
 
 293 
 
OH. I.J INNS AND INNKEEPERS. [§ 329. 
 
 denote a stranger who lodges at the house of another, as well 
 as the master of the house who entertains travelers or guests. 
 Among the Eomans it was a universal custom for the wealth- 
 ier classes to extend the hospitality of their house, not only to 
 their friends and connections when they came to the city, but 
 to respectable travelers generally. They had inns, but they 
 were kept by slaves, and were places of resort for the lower 
 orders, or for the accommodation of such travelers as were in 
 a condition to claim the hospitality of the better classes. On 
 either side of the spacious mansions of the wealthy patricians 
 were smaller apartments known as ' hospitium,^ or places for 
 the entertainment of strangers, and the word hospes was a 
 term to designate the owner of such a mansion, as well as the 
 guest whom he received. The custom of the Eomans pre- 
 vailed in the earlier part of the middle ages. From the lifth 
 to the ninth century traveling was difficult and dangerous. 
 There was little security except within castles or walled towns. 
 The principal public roads had been destroyed by centuries of 
 continuous war, and such thoroughfares as existed were in- 
 fested by roving bands who lived exclusively by plunder. 
 
 " In such a state of things there could be little traveling, and 
 consequently the few inns to be found were rather dens to 
 which robbers resorted to carouse and divide their spoils than 
 places for the entertainment of travelers. The effect of a con- 
 dition of society like this was to make hospitality not only a 
 social virtue but a religious duty, and in the monasteries and 
 in all the great religious establishments provision was made 
 for the gratuitous entertainment of wayfarers and travelers. 
 Either a separate building or an apartment within the mon- 
 astery was devoted exclusively to this purpose, which was in 
 charge of an officer called the hostler, who received the traveler 
 and conducted him to this apartment, which was fitted up with 
 beds, where he was allowed to tarry for two days, and to have 
 his meals in the refectory, while, if he journeyed upon horse- 
 back, provender was provided by the hostler for his beast in 
 the stables. In many countries this apartment, or guest hall, 
 of a monastery retained the original Latin name of hospitium, 
 but in France the word was blended with hospes and changed 
 into hospice, and it afterward underwent another change. As 
 civilization advanced, and the nobility of France deserted their 
 
 393 
 
§ 329.] INNKEEPEES BOAEDING-HOUSE KEEPEES. [PAET III. 
 
 strong castles for spacious and costly residences in the towns 
 they erected their mansions upon a scale sufficiently extensive 
 to enable them to discharge this great duty of hospitality, as 
 is still, or was very recently, the custom among the nobility 
 and wealthier classes in Eussia, and in some of the northern 
 countries of Europe. Borrowing, by analogy, from an exist- 
 ing word, and to distinguish it from the guest house of the 
 monastery, every such great house or mansion Avas called 
 a hostel, and by the mutation and attrition to which these 
 words are subject in use, the 's' was gradually dropped from 
 the word, and it became hotel. As traveling and inter- 
 course increased, the duty upon the nobility of entertaining 
 respectable strangers became too onerous a burden, and estab- 
 lishments in which this class of persons could be entertained 
 by paying for their accommodation sprung up in the cities, 
 towns, and upon the leading public roads, which, to distinguish 
 them from the great mansions or hotels of the wealthy, and at 
 the same time to denote that they were superior to the auberge 
 or cabaret, were called hosteleries, a name which has been in 
 use in France for several centuries, and is still in use to some 
 extent as a common term for inns of the better class, while 
 the word ' hotel,' in France, has long ceased to be confined to 
 its original signification, and has become a word of a most ex- 
 tensive meaning. 
 
 " The Saxon word inn was employed to denote a house where 
 strangers or guests were entertained, down to the time of the 
 Norman invasion; and under the Norman rule it was in the 
 popular tongue the word for the town houses in which great 
 men resided when they were in attendance on court, several of 
 which became legal colleges under the well known title of 
 'inns of court.' In all legal proceedings, however, and wher- 
 ever the Norman French was spoken, the word hostel was the 
 term for all such establishments. The places where entertain- 
 ment could be procured for a compensation, to distinguish them 
 from the inns or great houses where it was furnished gratm- 
 tously, were called in English common inns; while in Norman 
 French, by a change analogous to that which had occurred m 
 France, they were first called hosteleries, and afterward hostries. 
 To 'host' was to put up at the inn; and 'hostler,' before 
 referred to as the title of the officer in the monastery who was 
 
 294 
 
CH. I.] INNS AND INNKEEPEES. [§ 329. 
 
 charged with the entertainment of guests, was the Norman 
 word for innkeeper, and was in use until about the time of 
 Elizabeth, when, the keeping of horses at livery becoming a 
 distinct occupation, it was the term for the keeper of a livery- 
 stable. 
 
 " It appears from a note of Malone, referred to in Todd's edi- 
 tion of Johnson's Dictionary, that the word ' hotel ' came into 
 use in England by the general introduction in England, after 
 1760, of the kind of establishment that was then common in 
 Paris, called an hotel garni, a large house, in which furnished 
 apartments were let by the day, week or month. In Barclay's 
 Dictionary (1872), in the first edition of "Walker (1791), and in 
 Sheridan's Dictionary (1795), hotel is given as the proper pro- 
 nunciation of hostel, an inn ; and in the dictionaries of Jones 
 (1798) and of Perry (1805) it is incorporated as an English 
 word, and is defined in the latter to be 'a lodging-house for 
 the accommodations for gentlemen and genteel families.' 
 Todd (1814) defines it to be ' a lodging-house for the accom- 
 modation of occasional lodgers, who are supplied with apart- 
 ments hired by the night or week.' The definition given by 
 Knowles (1835) is simply 'an inn;' Beid (1845), 'an inn or a 
 lodging-house;' Boag (1848), 'an inn;' and by Dr. Latham^ 
 in his edition of Johnson's Dictionary, " an inn of a superior 
 kind.' . . . 
 
 " It is to be deduced from the origin and history of the word, 
 and the exposition that has been given of it by English and 
 American lexicographers, that a hotel, in this country, is what 
 in France was known as a hostelerie, and in England as a com- 
 mon inn of-that superior class usually found in cities and large 
 towns. A common inn is defined by Bacon to be ' a house for 
 the entertainment of travelers and passengers in which lodg- 
 ing and necessaries are provided for them and for their horses 
 and attendants.' . . . But a more practical idea of what was 
 understood at the common law as common inns may be gath- 
 ered from HoUingshed's description of them as they existed in 
 the days of Elizabeth. ' Every man,' says that quaint chron- 
 icler, ' may in England use his inn as his own house, and have 
 for his monie how great or how little varitie of vittals and 
 whatsoever service himself shall think fit to call for. If the 
 traveler have a horse, his bed doth cost him nothing, but if he 
 
 295 
 
§ 330.] INNKEEPEES — BOAEDING-HOUSE KEEPEES. [PAET III. 
 
 go on foot, he is sure to pay a penny for the same. Each comer 
 is sure to be in clean sheets wherein no man hath lodged since 
 they came from the laundress, or out of the water wherein they 
 were washed. Whether he be horseman or footman, if his 
 chamber be once appointed, he may carry the key with him as 
 of his own house as long as he lodgeth there. In all our inns 
 we have plenty of ale, biere and sundrie kinds of wine; and 
 such is the capacitie of some of them that they are able to lodge 
 two hundred or three hundred persons and their horses at ease 
 and with very short warning (to) make such provision for their 
 diet as to him that is unacquainted withall may seem to be in- 
 credible.' And another observer (Fynes Moryson), writing 
 before 1614, adds: 'If the traveler eats with the host or at the 
 common table his meals cost him sixpence, and in some places 
 fourpence; but if he will eat in his chamber he commands what 
 meat he will, and the kitchen is open to him to order the meat 
 to be dressed as he likes best.' " This perhaps is sufficient as to 
 the early history of the inn. 
 
 § 330, Who are innkeepers. — Judge Cooley in his work on 
 Torts adopts the following definition : "An innkeeper is one who 
 holds himself out to the public as ready to accommodate all 
 comers with the conveniences usually supplied to travelers on 
 their journey." ^ 
 
 In Howth V. Franklin the court defines the innkeeper to be 
 " one who holds himself out to the public as engaged in the 
 business of keeping a house for the lodgment and entertain- 
 ment of travelers, their horses and attendants for reasonable 
 compensation."^ 
 
 Some fine distinctions have arisen and occupied the atten- 
 tion of the courts as to who are innkeepers. Every person who 
 furnishes to the traveler entertainment for himself and attend- 
 ants is not an innkeeper. One who occasionally entertains 
 travelers for compensation when it suits his pleasure, and who 
 does not hold himself out as the keeper of a house for the ac- 
 commodation of the traveling public, is not an innkeeper. For 
 example, persons whose houses are situated along the public 
 roads of the country, as farmers living upon farms who occa- 
 sionally or even frequently take in and accommodate travelers 
 and receive compensation therefor, are not innkeepers, nor are 
 
 1 Cooley on Torts (2d ei), 757. 2 20 Tex. 793. 
 
 296 
 
OH. I.] INNS AND INNKEEPEES. [§§ 331-333. 
 
 they liable as such, nor are keepers of restaurants and eating- 
 houses, or those giving entertainment only occasionally, or per- 
 sons keeping lodging and boarding houses, or sleeping-car and 
 steamship companies, for these do not hold themselves out as 
 ready to furnish accommodation for all comers; and it has been 
 held that keepers of hotels at summer resorts and watering 
 places are riot in a strict > sense innkeepers. 
 
 §331, The test. — The test maybe seen in the definition, 
 " one who holds himself out to the public as ready to accom- 
 modate all comers with the conveniences usually supplied to 
 travelers on their journeys;" in other words, he who solicits 
 the public to come to his inn for entertainment; who proclaims 
 by word or action that he will entertain all who come who 
 will pay the price for the entertainment and are fit to be en- 
 tertained. It may be said to be a public employment, and this 
 is a characteristic distinguishing the innkeeper from a mere 
 boarding-house keeper; so that among the essential char- 
 acteristics which constitute the place an inn is the supplying 
 to the traveling public needed entertainment. 
 
 §332. Some essential characteristics. — The accommoda- 
 tion of the guests of the inn is the principal object for which 
 the inn is kept; to furnish food, lodging, entertainment and 
 care as the public demand. In Lewis v. Hitchcock ' the court 
 say: "A coffee-house, or a mere eating-house, is not an inn. 
 To constitute an inn there must be some provision for the 
 essential needs of a traveler upon his journey, namely, lodging 
 as well as food. These two elements of an inn may doubtless 
 be present in very disproportionate degrees as the needs of the 
 statute may require, but both must in some degree be present 
 to constitute an inn. 
 
 § 333. Restaurants and cafes. — Something more than the 
 mere providing of food for the guest or customer seems to be 
 essential to the inn. The restaurant or cafe usually provides 
 no care for the customer; that is, does not look after his bag- 
 gage, or provide a place to stay. One has not that thought in 
 connection with it that is coupled with the thought of the inn, 
 namely, a temporary home for the guest, a place where he can 
 rest and for the time call it his domicile. On the contrar}^ the 
 
 UO Fed. 6; Story on Bailments, 193; Wintermute v. Clark. 2 Sand. 
 see. 475; Carpenter v. Taylor, 1 Hill, 243; People v. Jones, 54 Barb. 316. 
 
 297 
 
§ 333.] INNKEEPEES — BOARDING-HOUSE KEEPERS. [PAET III. 
 
 ordinary restaurant or cafe is simply a place where the cus- 
 tomer or guest can sit at the table and be provided with food 
 and nourishment. Ordinarily it means an eating-house; not 
 infrequently a bar-room is a part of it. However, a restaurant 
 may be an inn if it has in connection with it apartments for 
 its customers where lodgings are furnished, and the ordinary 
 and usual essentials that belong with the inn are provided. In 
 such case, of course, the obligations resting upon the restaurant- 
 keeper would be similar to those of the innkeeper. In the 
 case of Kopper v. Willis^ Chief Justice Daly, in discussing this 
 question, says: " In Cromwell v. Stevens (2 Daly, 15), I had oc- 
 casion to examine what constitutes an innkeeper, not only by 
 a review of the adjudged cases in which that question has been 
 considered, but by an historical inquiry into the origin and rea- 
 son of the rule that innkeepers are responsible for the loss of 
 the property of their guests; in which I came to the conclu- 
 sion, from the authorities, that an inn is a house where all who 
 conduct themselves properly, and who are able and ready to 
 pay for their entertainment, are received, if there is accommo- 
 dation for them, and who, without any stipulated engagement 
 as to the duration of their stay, or as to the rate of compensa- 
 tion, are, white there, supplied, at a reasonable charge, with 
 their meals, lodging, refreshments, and such services and atten- 
 tion as are necessarily incident to the use of the house as a 
 temporary home. That a mere restaurant or eating-house is 
 not an inn, nor a mere lodging-house, in whicli no provision is 
 made for the entertainment of travelers, of which there are 
 many in. this and other cities; where the guest or traveler pays 
 so much a day for his room, and takes his meals or not, as he 
 thinks proper, in the restaurant, paying separately for each 
 meal, as he takes it, they are to be considered inns, if the res- 
 taurant forms part of the establishment and the whole house 
 is kept under one general management for the reception of all 
 guests or travelers that may come there." 
 
 As to sleeping-car and steamboat companies the authorities 
 are not entirely harmonious as to their liability as innkeepers. 
 Their duties are in many respects quite similar, and the same 
 reasons that occasioned the laying upon the innkeeper the ex- 
 traordinary liability largely exists in the case of the sleeping- 
 
 1 9 Daly, 460. 
 
 298 
 
OH. I.] INNS AND INNKEEPERS. [§ 333. 
 
 car company or the steamboat company; but while this istrue^ 
 the great weight of authoritj' holds that sleeping-car companies- 
 are not innkeepers or liable as innkeepers, but as to steamboat 
 companies the question is by no means settled. "While the inn- 
 keeper is bound to receive as guests all who may apply at his- 
 inn who are suitable and ready and willing to pay the price of 
 the entertainment, the sleeping-oar companies limit their ac- 
 commodations to those persons who have purchased first-class 
 tickets upon their train, and do not hold themselves out to fur- 
 nish anything except a place to sleep while upon the journey; 
 the passenger not having the privilege of a room where he can 
 lock the door and guard against persons who seek to enter, but 
 the accommodations are simply in accordance with an express 
 contract that has been made with the company. Neither does 
 the company undertake to care for any property or goods of 
 the traveler. 
 
 In Pullman Gar Go. v. Smith ' the court say: " The innkeeper 
 is obliged to receive and care for all the goods and property of 
 the traveler which he may choose to take with him upon the 
 journey. Appellant (meaning the Pullman Car Co.) does not re- 
 ceive pay for nor undertake to care for any property or goods- 
 whatever, and notoriously refuses to do so. The custody of th& 
 goods of the traveler is not, as in the case of the innkeeper, 
 accessory to the principal contract to feed, lodge and accommo- 
 date the guest for a suitable reward, because no such contract 
 is made. The same necessity does not exist here as in the case 
 
 ' 73 111. 364; Lewis v. New York la dependent upon the owners and 
 Sleeping-car Co., 143 Mass. 267. " A oflBcers of the car to guard him and 
 sleeping-car company holds itself out the property he has with him from 
 to the world as furnishing safe and danger and thieves. The law lays- 
 comfortable care, and when it sells a the duty on the part of the car com- 
 tioket it impliedly stipulates to do so. pany to afford him this protection. 
 It invites passengers to pay for and While it is not liable as a common 
 make use of its cars for sleeping, all carrier or an innholder, yet it is its 
 parties knowing that during the duty to use reasonable care to guard 
 greater part of the night the passen- the passenger from theft, and if 
 ger will be asleep, powerless to pro- through want of care the personal 
 tect himself or to guard his property, effects of a passenger, such as he- 
 He cannot, like the guests of an inn, might reasonably carry with him, are- 
 by locking the door guard against stolen, the company is liable for it." 
 danger. He has no right to take such Wood worth Sleeping & Parlor Car 
 steps to protect himself in a sleeping- Co. v. Diehl, 84 Ind. 474, 6 Ky. L. Rep. 
 car, but by the necessity of the case 379. 
 
 299 
 
§ 333.] INNKEEPERS — BOAEDING-HOUSB KEEPERS. [PAET III. 
 
 of a common inn. At the time when this custom of an inn- 
 keeper's liability had its origin, wherever the end of the day's 
 journey of the wayfaring man brought him, there he was obliged 
 to stop for the night, and intrust his goods and baggage to the 
 custody of the innkeeper. But here the traveler was not com- 
 pelled to accept the additional comfort of a sleeping-car; he 
 might have remained in the ordinary car; and there were easy 
 methods within his reach by which both money and baggage 
 could be safely transported." The supreme court of Nebraska, 
 however, gives us an adverse holding to that of the great ma- 
 jority of the courts in this country. In the case of Pullman 
 Palace Car Co. v. Lowe^ the court say: " Except in the matter 
 of furnishing meals, there seems to be no essential difference 
 between the accommodations at an inn and those on a sleeping- 
 car, except that the latter are necessarily on a smaller scale 
 than at an inn. In both cases the porter meets the traveler at 
 the door and takes whatever portable articles he may have 
 with him. He waits upon him and the other passengers in the 
 car so long as they remain therein. The traveler is not required 
 to sit in his seat during the day, but may, if he so desire, go 
 forward into the other cars on the train, and at stations go out 
 on the platform. . . , If it is said that it would be unjust 
 to hold the company to the same liability as an innkeeper be- 
 cause thieves might engage one or more berths in a car, and at 
 the first opportunity leave the car carrying what articles they 
 could steal before leaving; the same is true of an innkeeper. 
 Thieves, in the garb of respectable people, may take rooms at 
 an inn, and afterwards steal what they can and escape, yet no 
 one would contend that the innkeeper would not be responsible 
 for the property so stolen, and this whether it is stolen at night 
 or in the daj^-time ; yet in many of the large inns of this country 
 at least, there are numerous doors for ingress and egress, while 
 in a sleeping-car there are but two. Were meals served on a 
 sleeping-car no one would contend that it differed from, an inu 
 in its accommodations." 
 
 But the great weight of authority is that sleeping-car com- 
 panies are not innkeepers, and they are not subject to the e.K- 
 traordinary liability that attaches to the innkeeper. In Ghni' 
 V. Burns'^ the court say: "The liabilities of common carriers, 
 
 128 Neb. 239. 2 118 Mass. 277. 
 
 300 
 
CH. I.] INNS AND INNKEEPEES. [§ 333. 
 
 though similar, are distinct. No one is subject to both liabil- 
 ities at the same time and with regard to the same property. 
 The liability of an innkeeper extends only to goods put in his 
 charge as keeper of a public house, and does not attach to a 
 carrier who has no house and is engaged only in the business- 
 of transportation." However, in case of steamboat companies, 
 the authorities do not agree- There is a line of authorities which 
 holds that where the passenger has been assigned to a state- 
 room in a steamboat, of which he has charge similar to that of 
 a guest of an hotel, the extraordinary liability would attach 
 that attaches to the hotel-keeper, and that in such case the 
 steamboat company would be placed upon the same footing as 
 the innkeeper. In Michigan the supreme court divided upon 
 the question in the case of MeKee v. Owen} 
 
 115 Mich. 115; Adams v. N. J. pany is liable to the same extent as 
 
 Steamboat Co., 151 N. Y. 163. In this an innkeeper, but distinguishes be- 
 
 case the briefs will be found very tween the liability of the steamboat 
 
 full, citing cases in support of the company and the Pullman Car Com- 
 
 different doctrines, while the case it- pany. 
 self holds that the steamboat com- 
 
 301 
 
CHAPTER IL 
 
 GUESTS. 
 
 I 334 Who are guests. 
 835. How far traveled, immaterial. 
 
 336. A guest or a boarder. 
 
 337. Length of time — Contracts 
 
 for rates will not always de- 
 termine. 
 
 338. Personal presence of the guest. 
 
 339. The furnishing of what ac- 
 
 commodations necessary. 
 
 340. Mere visitors. 
 
 341. The length of time one re- 
 
 mains, immaterial 
 
 § 343. The purpose for which one 
 uses the inn. 
 
 343. Who must the innkeeper re- 
 
 ceive as guests. 
 
 344. Limitations. 
 
 345. Liability for refusing to re- 
 ceive a guest. 
 
 May refuse to receive. 
 When a guest is taken ill with 
 
 contagious disease. 
 Disorderly conduct. 
 
 346. 
 347. 
 
 348. 
 
 § 334. Who are guests. — The definition of an inn, already 
 given as " a public house of entertainment for all who choose 
 to visit it," indicates who are, in a legal sense, guests of the 
 inn. Some of the authorities have considered it a requisite, in 
 determining who are guests, that they should be travelers or 
 wayfarers, and some of the courts have adopted that idea in 
 distinguishing them from boarders or from residents of the 
 place; but the better opinion seems now to be that it is not es- 
 sential that the persons should come from any distance, and 
 the definition supported by the weight of authority would 
 seem to be the one adopted by Carpenter, J., in Walling v. 
 Potter: ' " a guest is one who patronizes an inn as such." 
 
 1 Walling V. Potter, 35 Conn. 183. 
 The defendant, it was admitted, was 
 an innkeeper. The plaintiff and de- 
 fendant both resided in the town of 
 Kent, and the inn was in Kent about 
 half a mile from the plaintiff's resi- 
 dence. The plaintiff came to the 
 inn on an evening, stayed there over 
 night and took breakfast there, and 
 paid the defendant for his night's 
 lodging and breakfast his usual 
 charge for such entertainment. The 
 plaintiff claimed that on these facts 
 
 he was a guest at the inn and en- 
 titled to treat the defendant as inn- 
 keeper and hold him responsible as 
 such. The defendant claimed that 
 the plaintiff was not a traveler or 
 a wayfaring man and not a guest at 
 the inn so as to be authorized to 
 charge the defendant as an inn- 
 keeper for the loss claimed. The 
 court held in that case that distance 
 was not material; that a townsman 
 or neighbor may be a traveler, and 
 therefore a guest at an inn; that if 
 
 303 
 
CH. II.] GUESTS, [§§ 335, 336. 
 
 In Winiermute V. Clarlc'^ the court say: "In order to charge 
 the defendant as an innkeeper it was not necessary to prove 
 that it was only for the reception of travelers that his house 
 was kept open." 
 
 § 335. How far traveled, immaterial. — A townsman or a 
 neighbor may be a guest at an inn as well as one who has trav- 
 eled hundreds of miles or from another country. It is not a 
 question of distance, but rather one of intention on the part of 
 the person who applies for entertainment. If he seeks the 
 privileges of the inn, asking for entertainment as a guest, it is 
 enough, and he must be so received.^ It has been said that any 
 one away from home, receiving accommodations at an inn as a 
 traveler, is a guest and entitled to hold the innkeeper respon- 
 sible as such. 
 
 § 336. A guest or a boarder. — The discussion as to who are 
 guests at once suggests the inquiry as to who are boarders. It is 
 important that we should be able to determine this, as it so often 
 fixes, as we shall 'see, the extent of the liability of the inn- 
 keeper. For a better understanding of the question we have 
 therefore deemed it best to discuss these questions together. 
 The liability of the innkeeper is based largely upon public 
 policy. From the fact that persons traveling through the 
 country are of necessity compelled to put up at inns for en- 
 tertainment — transeuntes causa hospitandi (from which last 
 word they are called guests), — without knowing anything about 
 the character of the house, the law gives an assurance of the 
 safety of their property and themselves. 
 
 Say the court, by Parsons, J., in Neal v. Wilcox: * " It is 
 sometimes difficult to draw the line between guests and board- 
 he resided at the inn his relations the prominent idea is that a guest 
 would be that of a boarder, but if he must be a traveler, wayfarer or a 
 resided away from it, whether far or transient comer to an inn for lodg- 
 near, and came in for entertainment ing and entertainment. It is not 
 as a traveler, and received it as such, now deemed essential that a person 
 paying the customary rates, there should have come from a distance to 
 were no reasons why he should not be constitute a guest. ' Distance is not 
 held to be a guest and entitled to material.' A townsman or neighbor 
 the rights and privileges of a guest, may be a traveler, and therefore a 
 
 1 Wintermute v. Clark, 5 Sandf. guest at an inn, as well as he who 
 243. comes from a distance or from a 
 
 * In Curtis v. Murphy, 63 Wis. 4, foreign country." 
 the court say: "In these definitions ^4 N. C. (Jones, L.) 148. 
 
 303 
 
§ 336.] INNKEEPERS — BOARDING-HOUSE KEEPERS. [PAET HI. 
 
 ers; they frequently nm into each other like light and shade 
 so the line between a common carrier and a bailee to carry 
 is sometimes scarcely perceptible; but the law makes the 
 distinction and it is the province of the judge to draw the 
 line. A transient customer' at an inn, although he be not a 
 traveler or stranger, is considered as a guest. A lodger who 
 sojourns at an inn and takes a room for a specified time and 
 pays for his lodging on a special agreement, as by the month 
 or week, is a boarder. So the reason restricts the action to one 
 who comes for entertainment causa hosjjitandi." 
 
 § 337. Length of time — Contracts for rates will not al- 
 ways determine.— It cannot be said, however, that it can 
 always be determined whether one is a boarder or a lodger 
 from the fact that he has made a contract to remain for a 
 certain length of time, or that he is to have reduced rates. 
 The traveler who is to sta^'' but for a night may have a contract 
 for reduced rates ; on the other hand, one who is to remain for 
 a considerable length of time may have no such contract, and 
 may be considered as a transient. It has been said that it de- 
 pends more upon the status of the person. Is he a transient 
 or is he a traveler? Or is he one who is intending to stay, to 
 become settled at the place as his home ? If he is at the inn 
 expecting to remain and make the place his home for a definite 
 period, and at a fixed rate by the week or the month, there 
 can be little question that his status would be that of a boarder. 
 
 In Moore v. Long Beach Co.^ the plaintifi: having arranged for 
 a long stay with his family, it was held that he was a boarder. 
 In Mi-Gee v. Pacific Imp. Co. it was held that the question 
 was one of fact to be determined by the court upon all the 
 evidence before it. " Whether the plaintiS' made a special ar- 
 rangement respecting her stay with the defendant was only 
 evidence to be considered by the court in determining the ul- 
 timate fact whether she was a guest or a boarder. Even if a 
 finding of the court that she had made special arrangements 
 
 187 Cal. 483; McGeev. Paoiflolmp. v. Pacific Imp. Co., 93 Cal. 259. "An 
 
 Co., 98 Cal. 678, 93 Cal. 253; Pinker- innkeeper may contract specially as 
 
 ton V. Woodard, 33 Cal. 597, 91 Am. a boarding-house keeper." Story on 
 
 Dec. 657; Hancock v. Rand, 17 Hun Bailments, 225. See note to Manur 
 
 (N. Y.), 279, 94 N. Y. 1, 46 Am. Rep. facturing Co. v. Miller, 21 L. R. A. 
 
 113; Hall y. Pike, 100 Mass. 495; Fay 229; Fisher v. Kelsey, 121 U. S. 383. 
 
 304 
 
en. II.] GUESTS, [§ 338. 
 
 Avith the defendant for board and lodging by the week had 
 been sustained by the evidence, that fact would not be deter- 
 minative of the issue whether she was a guest or a boarder, but 
 would be merely evidence to be considered in determining that 
 issue." ' 
 
 § 338. Personal presence of the guest. — The personal pres- 
 ence of the guest at the hotel is not always necessary in order 
 to hold the innkeeper liable as an innkeeper for his property 
 which has been lost at the inn; as where his baggage was 
 taken there in charge of his servants or a member of his fam- 
 ily in a way that the law would imply that while there it is 
 in his possession. This, no doubt, is carrying the rule to its 
 farthest limit, and it has been questioned whether it is the law. 
 The inn or hotel is for the entertainment of the guest prima- 
 rily, and the protection of his baggage or property which ac- 
 companies him is an incident to the entertainment, and it 
 would seem that it is carrying the rule a little too far to say 
 that an innkeeper could be made a bailee of the property of a 
 person and subjected to the extraordinary liability of an inn- 
 keeper where the owner is not entertained as a guest at the 
 hotel.^ Some of the courts contending for the rule undertake 
 
 1 " The guest comes without any bar- stay in the city in which the inn was 
 gain for time, remains without one, located." "In this case it was laid 
 and may go when he pleases, paying down that the father's status as a 
 only for the actual entertainment re- traveler, like any other status, was 
 ceived. The rule is not changed by shown to exist, and is presumed to 
 the fact that the person remains a continue, and that neither the agree- 
 long time at the inn in this way." ment by which he was to pay special 
 Shoecraft v. Bailey, 85 Iowa, 553; rates for himself and family lower 
 Motzger v. Sohnabel, 23 Misc. (N. Y.) than those ordinarily charged for 
 698; Pullman Car Co. v. Lowe, 28 transient guests, nor the fact that he 
 Neb. 239, 26 Am. St. Rep. 825; Berk- remained in the inn for a month, 
 shire Woolen Co. v. Proctor, 7 Cush. nor any other fact appearing in the 
 (Mass.) 417. In Lusk v. Belote, 23 case, furnished any evidence that his 
 Minn. 468, "a father who comes from character was changed from that of 
 another state wherein he resides and a traveler to that of a boarder." 
 stays for a month with his family at ^ In a very early case (Towson v. 
 a hotel in which the family is stop- Havre de Grace Bank, 6 Harr. & 
 ping is a traveler and can recover for Johns. (Md.) 47), one was intrusted 
 the theft ofhis watch from the rooms with a sum of money by the bank 
 occupied by himself and family at to be passed in Baltimore for the 
 the hotel, where his purpose evi- benefit of the bank, or to be re- 
 dently was to make a flying visit to turned. The agent for the bank 
 his family and a merely temporary agreed to this undertaking, which 
 20 305 
 
J3y.] 
 
 IN"NKEEPERS BOAEDING-HOUSB KEEPEKS. [PABT III, 
 
 to draw a distinction between a case where property intrusted 
 to a bailee is lost by the bailee, and one where the property is 
 intrusted to an agent is lost. None of the cases hold that in 
 the former case the innkeeper would be subject to extraordi- 
 nary liability.^ The rule, however, seems to be well settled 
 that if the property left with the innkeeper for safe-keeping 
 is inanimate property and the person leaving it is not a guest 
 that is, a person at the hotel receiving entertainment, the inn- 
 keeper is not liable for its loss except as he may be liable as an 
 ordinary bailee. * 
 
 Leaving a horse and vehicle with which one is traveling at 
 an inn has been held to constitute the owner a guest. But'it 
 seems that this was more generally the rule in times when per- 
 sons traveled through the country by their own conveyance than 
 it is at the present time. This rule will be found to be laid 
 down more generally in the early English cases and in some 
 of the earlier cases in this country. As, for example, in the 
 
 was entirely for the accommodation 
 of the bank. He proceeded to Balti- 
 more, taking with him the money — 
 the bank notes — and put up as a 
 guest at the house of the appellant, 
 who was a common innkeeper in the 
 city of Baltimore. His money was 
 intrusted to the barkeeper of the inn 
 for safe keeping, and through him 
 was lost. The action was brought 
 by the bank against the innkeeper. 
 After reciting the facts the court 
 say: "It is the profit, then, to the 
 innkeeper which often creates his 
 liability, and it matters not out of 
 whose funds the expenses of the cost 
 are defrayed. It is enough that 
 he receives the consideration from 
 whence his responsibility arises — 
 the premium for his risk. Thus it is 
 said in a case in Yelverton that ' if 
 A. sends his money by his friend who 
 is robbed in the inn at which he is 
 a guest, A. shall have the action.' 
 And there is no reason why it should 
 not be so; the innkeeper being 
 chargeable not on Ihe ground that 
 he entertains the owner of the money 
 
 or other goods, but because he re- 
 ceives, no matter by whom paid, a 
 compensation for the risk. The 
 judgment is this case, therefore, 
 ought to be affirmed." In Coykendall 
 V. Eaton, 55 Barb. (N. Y.) 188, it was 
 held "the duties owed by an inn- 
 keeper as such are due only to his 
 guests. To constitute one a guest it 
 is not necessary that he be at the inn 
 in person : it is enough that his prop- 
 erty be there in the charge ef his 
 wife or servant, or agent who is 
 there in his employment, or as a 
 member of his family; buttheymust 
 be there in such a way that the law 
 will imply the property, while there, 
 to be in his possession and not in the 
 possession of the person who is there 
 with it as his bailee. " 
 
 1 Coykendall v. Eaton, 55 Barb. 
 (N. Y.) 188. Mutually opposed to this 
 case is the case of Mason v. Thomp- 
 son, 9 Pick. (Mass.) 280. McDauiels 
 V. Robinson, 28 Vt. 387, 67 Am. Dec. 
 720; Palin v. Reid, 10 Ont. App. 63; 
 Strauss v. Hotel.etc. Co.,12Q.B.D.27; 
 Toub v. Schmidt, 60 Hun (N. Y.), 409. 
 
 306 
 
OH. II.] GUESTS. [§§ 339, 340. 
 
 case of Mason v. Thompson, 9 Pick. 280, the traveler never 
 went to the inn, but stopped as a visitor with a friend and sent 
 her horse and carriage to the inn. After four days she sent 
 for the property and found that a part of it had been stolen, 
 but still the innkeeper was held liable.' 
 
 § 339, The furnishing of what acconimotlations neces- 
 sary. — It seems that one may become a guest although he 
 does not receive or obtain all of the accommodations that the 
 inn usually furnishes. As, for example, one may be entitled 
 to all the privileges of a guest, and render the innkeeper liable 
 as an innkeeper, who only obtains lodgings and takes his meals 
 at some other place, or where he obtains meals and does not 
 have lodging at the inn. If in such case he receives a portion 
 of the accommodations as a transient he may be in all respects 
 considered as a guest. In the case of Lynar v. Mossope^ the 
 plaintiff went from a train on which he arrived to the defend- 
 ant's hotel, taking with him his baggage. He applied to the 
 clerk of the hotel for a room, which he occupied for the pur- 
 pose of dressing and making his toilet before visiting a friend. 
 During the time there was sent to him hot water with which 
 to shave. Occupying the room only for a short time, he left 
 his baggage in the room and went to his friend. It was held 
 that he Was a guest during the time he was using the room for 
 the purpose of dressing. Hotels that are kept on the European 
 plan, where guests have no other accommodations except the 
 accommodations of the rooms, are held to be subject to the law 
 of innkeepers, and persons so occupjj^ing the rooms are guests.^ 
 
 § 340. Mere visitors. — Persons who merely visit the inn 
 or hotel for the purpose of meeting friends, or dining with 
 them, are not guests of the hotel ; they inaj^ be transients, but 
 
 iMcDanlels v. Robinson, 26 Vt. Deo. 560; Orchard v. Bush, 3 y. B. 
 
 316, 63 Am. Dec. 574; Russell v. Fa- 384, 78 L. T. (N. S.) 577. "One at an 
 
 gan, 7 Houst. (Del.) 383: York v. Inn merely for the purpose of attend- 
 
 Grindstone, 1 Salk. 388; 2 Lord Ray- ing a ball was held not to be a guest." 
 
 mond, 866; Walker v. Sharp, 31 U. C. Fitch v. Casler, 17 Hun (N. Y.), 136; 
 
 Q. B. 340. Carter v. Hobbs, 13 Mich. 52. Judge 
 
 2 36 U. C. Q. B. 230. Christiancy in rendering the opinion 
 
 SBurnstein v. Sweeney, 38 N. Y. said: " The plaintiff was no more the 
 
 Sup. Ct. 371; Bullock v. Adair, 63 111. guest of the inn than a person re- 
 
 App. 30. "His taking food without siding across the street and attend- 
 
 lodging constitutes one a guest." ing the ball on the same occasion." 
 Read v. Amidon, 41 Vt. 15, 98 Am. 
 
 307 
 
§§341-42.] INNKEEPERS — BOARDING-HOUSE KEEPEES. [PAET III, 
 
 they are not there for the purpose of obtaining the accommo- 
 dations that the hotel usually and generally gives to its pat>rons. 
 They are really guests of the persons whom they visit, and not 
 guests of the inn. In Qastenhoferv. 6'Za^VHhe plaintiff claimed 
 to have become a guest by reason of ordering and takino- din- 
 ner while waiting for his uncle to arrive. The court say this 
 put him in no different position from that he would have oc- 
 cupied had he sat down with the uncle, as he had been invited 
 to do. He was there upon the invitation of that gentleman, 
 and with no intent to sojourn at the hotel as a guest for even 
 the briefest period. 
 
 It seems that the question is decided upon the motive with 
 which one visits the inn, whether it is to use it for a very brief 
 period or for the most trifling purpose as a public house. 
 And it cannot be said that where one visits the hotel merely 
 to call upon or visit a guest at the place and to incidentally 
 enjoy the hospitality of the house, it was his intention to be- 
 come a guest. He no more becomes a guest than he would 
 if using the place by sitting in the parlors, or using the read- 
 ing room or writing room, or visiting with companions about 
 the office or sitting rooms. In such case it cannot be said that 
 there is any intention upon the part of the visitor to become 
 a guest at the inn, and there is no consideration or benefit de- 
 rived by the innkeeper and no understanding that the person 
 is a patron of the place.- 
 
 § 311. The length of time one remains, immaterial.— The 
 mere fact that one remains at the inn a long time or for only 
 a short time is not of itself sufficient to determine the question 
 as to whether he is a boarder or a guest. It is a question that 
 must be determined, as we have said, from the fact as to 
 whether he is a transient or whether he has settled down at 
 the place intending to remain and become settled in the hotel 
 as his home for the time, and it is often a difficult question to 
 determine. 
 
 § 342. The purpose for which one nses the inn.— The 
 guest must use the inn for legitimate purposes, and if one 
 should go to the inn for the purpose of committing a crime, 
 and is engaged in illegal pursuits, as, for example, burglar- 
 izing the rooms, he cannot be said to have the privileges of 
 
 1 10 Daly, 265. 2 Bennett v. Melor, 5 Term Eep. 273. 
 
 308 
 
CH. II.J GUESTS. [§ 343. 
 
 a guest. And so where one goes to the inn for immoral pur- 
 poses, as where one went to a hotel with a disreputable woman, 
 registered with her as husband and wife, was assigned a room 
 and delivered some money to the clerk, who absconded there- 
 with, it was held that he was not a guest and could not recover 
 the money from the innkeeper.^ 
 
 §343. Who must the innkeeper receive as guests. — The 
 innkeeper may be said to be a quasi-'prxhlic servant, keeping a 
 public house where any one, with but few exceptions, has a 
 right, on complying with certain regulations, to go and be 
 received, and find the rest and entertainment usually furnished 
 by the keeper of the inn. So it may be said that as a general 
 rule an innkeeper is bound to receive and entertain, if he has 
 room in his house, every one who applies to him for entertain- 
 ment who is orderly and law-abiding and tenders the price, or 
 is able and willing to pay the price of his entertainment. In 
 Bowlin V. Lyon ^ the court say : " The grounds upon which these 
 restrictions are imposed are, that persons engaged in this voca- 
 tion are in some sense servants of the public, and in conducting 
 their business they exercise a privilege conferred upon them 
 by the public, and they have had secured to them by the law 
 certain privileges and rights which are not enjoyed by the 
 members of the public generally." And in a leading English 
 case' it is said: "The innkeeper is not to select his guests; he 
 has no right to say to one you shall come in to my inn, and to 
 another you shall not, as every one coming and conducting 
 himself in a proper manner has a right to be received ; and for 
 this purpose innkeepers are a sort of public servant, they hav- 
 ing in return a kind of privilege of entertaining travelers and 
 supplying them with what they need. The innkeeper, in the 
 
 1 Curtis V. Murphy, 63 Wis. 4, 53 2 67 Iowa, 563. 
 
 Am. Rep. 243. The court, after stat- 8 Rex v. Ivens, 7 Car. & P. 213-219; 
 
 ing the case, reaches the following Hawthorne v. Hammond, 1 Car. & 
 
 conclusion: "That one whose status K. 404-407. "In summing up this 
 
 is a guest is a traveler or a transient case, Parker, B., said there is no doubt 
 
 comer who puts up at an inn for a that the law is that a person who 
 
 lawful purpose to receive its custom- keeps a public inn is bound to admit 
 
 ary lodging and entertainment, and all persons who apply peaceably to 
 
 not one who takes a room solely to be admitted as guests." Atwater v. 
 
 commit an offense against the laws Sawyer, 76 Me. 538. 
 of the state." See, in this connec- 
 tion, Suia v. Omel, 61 N. Y. S. 659. 
 
 309 
 
§ 3ii.] INNKEEPERS BOARDING-HOUSE KEEPERS. [PAUT III. 
 
 very doing of his business, necessarily holds himself out to the 
 public as a keeper of a public house, and he solicits all to come 
 and patronize him and become guests of his inn." And so the 
 inn from time immemorial has been considered to be a place 
 where the traveler, or any person desiring the accommodation 
 it afforded, may go and be cared for as a guest, and the keeper 
 of the inn is not allowed to deny the right to any person who 
 comes who is suitable and able and ready and willing to pay 
 for the entertainment furnished. In MarTcham v. Brown^ it is 
 said : " An innkeeper holds out his house as a public place to 
 which travelers may i-esort, and of course surrenders some of 
 the rights which he would otherwise have over it ; holding it out 
 as a place of accommodation for travelers, he cannot prohibit 
 persons who come under that character, in a proper manner and 
 at a suitable time, from entering, so long as he has the means 
 of accommodation for them." 
 
 §344. Limitations. — To the rule which requires the inn- 
 keeper to receive all who apply to him for entertainment, who 
 are willing and able to pay the price, there are certain hmita- 
 tions; and these limitations are not alone for the advantage of 
 the innkeeper, but they are required as well for the comfort and 
 safety of the guests, and therefore it is not only the privilege 
 of the innkeeper to take advantage of these limitations, but it 
 becomes his duty to do so, otherwise he might become hable to 
 the guests of his inn in an action for damages. These limita- 
 tions have already been foreshadowed, and perhaps more than 
 indicated by what has been said upon the subject as to who the 
 innkeeper must receive. Generally, they may be grouped under 
 three heads: 
 
 1 8 N. H. 523-.538, Am. Dec. 209. the infant may avail himself of his 
 
 In Watson v. Cross, 2 Duv. (Ky.) 147, legal disability and avoid the con- 
 
 the court say: "The innkeeper was tract, if not for necessaries; but to 
 
 legally bound to i-eceive and enter- apply the principle to contracts 
 
 tain all guests apparently responsible which are compulsory on the side of 
 
 and of good conduct wlio might come the otlier contracting party vfould be 
 
 to his house, and if he refused to do to make the law an instrument of 
 
 60 lie was liable alike to an indict- oppression. It would be a legal ab- 
 
 ment and an action by the party ag- surdity to compel a man to malcea 
 
 grieved; and the mere fact of in- contract and at the same time per- 
 
 fancy vs'ould not justify him in any mit the other party, who is the in- 
 
 such refusal. Where a party voluu- strument of his compulsion, to avoid 
 
 tarily contracts with an infant, then it." 
 
 310 
 
CH. II.J GUESTS. [§ 344. 
 
 1st. The innkeeper may refuse to receive one as a guest if 
 he is unable to do so on account of his house, or inn, being filled, 
 and there is no further accommodations for a guest. 
 
 2d. He may refuse to receive disorderly persons, and if such 
 a person has been received, or, if after having been received, 
 he becomes disorderly, the innkeeper may require him to leave 
 the house. 
 
 3d. He may refuse to receive persons who are infected with 
 contagious diseases. 
 
 (1) As to the first limitation — refusing to receive a guest on 
 account of the house being filled, — in almost every case it is not 
 difficult to understand that these limitations could be taken 
 advantage of by the innkeeper; but what would be his duty in 
 extreme cases, or to what extent he would be bound to crowd 
 the capacity of the house, is difficult to decide. As, for ex- 
 ample, in case of severe storms, or in case of large crowds that 
 have been gathered to the town or city where the hotel or inn 
 is situated ; what is the ability' of the person turned away to 
 obtain a place for lodging and entertainment; the physical 
 condition of the person applying, — all these questions would 
 seem to enter into the matter of deciding correctly the rights 
 and liabilities of the innkeeper to turn away a person applying 
 at his inn for shelter or food. No doubt the rule would be 
 decided by the question of reasonableness under all the circum- 
 stances, coupled with the lack, of course, of any malice or de- 
 sign upon the part of the innkeeper. 
 
 .(2) As to the second exception, the decision of the innkeeper 
 cannot be based entirely upon his own rights and privileges, 
 but he is bound to look after the care, comfort and safety of 
 those who are guests at the inn. He is under obligation to 
 those persons who have already entered the inn or the hotel, 
 paid for their entertainment and entitled to have furnished 
 to them not only shelter and food, but also the privilege of 
 enjoying the comforts that are usually furnished to guests of 
 the place. The guest is not legally called upon to put up with 
 the annoyance of drunken, indecent and vulgar associates who 
 are carrying on their disorderly practices to the extent of 
 making his stay disagreeable and unbearable. On the con- 
 trary, he may call upon the innkeeper to turn away such 
 
 311 
 
§341.] INXKEEPEllS BOAEDING-HOUSE KEEPEES. [pAETIII. 
 
 persons unless they desist from such practices. And so where 
 a guest is assaulted by a drunken person and suffers by reason 
 of such disorderly treatment, or where he has suffered from 
 loss of property which has been stolen from him while in the 
 inn, or from any other disorderly conduct on the part of per- 
 sons who are accepted as guests, he would no doubt have an ac- 
 tion agai'nst the innkeeper for the damage he might sustain. 
 
 (3) The third limitation mentioned, namely, the refusal to > 
 receive guests who are infected with contagious diseases, is 
 based not only upon the privilege of the innkeeper to reject 
 such persons, and upon the right which the guest has to be 
 entertained without danger of being infected with contagious dis- 
 eases, but it also rests upon public policy. The inn, as we have 
 seen, is a public house kept for the entertainment and comfort 
 of the public. It could hardly be said that under such cir- 
 cumstances the law would permit an innkeeper to receive per- 
 sons into such a public place who would inoculate or infect 
 guests who come to the place expecting to be entertained and 
 protected as guests. In Gilhert v. Hofinan ' the plaintiff claimed 
 damages of the defendants, innkeepers, on account of having 
 been wrongfuli}' exposed to the small-pox at their hotel, 
 whereby the plaintiff became sick, and was removed to a pest- 
 house, where she suffered great bodily pain and mental anguish 
 and was permanently disfigured. The court say: "By keep- 
 ing their hotel open for business they (the innkeepers) in fact 
 represented to all travelers that it was a reasonably safe place 
 at which to stop; and they are hardly in a position now to in- 
 sist that one who accepted and acted on this representation 
 and was injured because of its untruth shall be precluded from 
 recovering against them for the injury on the ground that she 
 might by further inquiry have learned its falsity.'' 
 
 It is perhaps because of these limitations that it necessarily 
 follows that an innkeeper may make reasonable rules and regu- 
 lations which he may require the guests to observe, and, if 
 they refuse to comply with these reasonable rules and regula- 
 tions, may go to the extent of ejecting them from the house. 
 But in the carrying out of the rules and regulations thus made, 
 and in fact in taking advantage of the limitations which have 
 been discussed, the innkeeper must exercise good judgment 
 
 1 6G Iowa, 205. 
 813 
 
CH. II.] GUESTS. [§ 345. 
 
 and reasonable care, or he may become liable for his treat- 
 ment of or actions toward the guests in these respects. 
 
 § 345. Liability for refusing to receive a guest. — Having 
 discussed the general rules which define the duty of the inn- 
 keeper to receive all who may apply and his right to exercise 
 the limitations which have also been mentioned, we have 
 now to notice what his liability may be in refusing to receive 
 a guest where legally and of right it is his duty to receive such 
 person. It would be diflScult, indeed, to classify the numerous 
 cases which present themselves in contemplating this branch 
 of the subject. It should be borne in mind that the rule which 
 governs in like cases is, that where there is a duty imposed by 
 law upon a person, with which he neglects or refuses to comply, 
 and his neglect or refusal results in damage to another, he 
 is liable to answer for such damage. Just how far this rule, 
 however, can be carried has been somewhat interesting both 
 to the law writers and to the courts. The supreme court of 
 Pennsylvania in McHv.gh v. Schlosser et al.^ held that an inn- 
 keeper was liable for the death of a person who, while sick, 
 was by the innkeeper driven out into a storm without ade- 
 quate covering, and left for the space of an hour in a stream of 
 melting ice and snow, where he fell down from inability to 
 stand on his feet, holding that it was reasonable to suppose 
 that death might follow such sudden exposure in his condition. 
 The courts have gone further than this in their rulings, and it 
 has been held that an innkeeper might be liable to an indict- 
 mentfor turning away a guest from his inn when he had room 
 
 '159 Pa. St. 480. This case is an ill and remained most of two days in 
 
 unusual and interesting one and bed ; a physician was called, who pre- 
 
 settles the principle discussed in the scribed for him. During the day he 
 
 text, and perhaps is the only case obtained several drinks, and during 
 
 that could be cited at the present the forenoon of Monday he seemed 
 
 writing. It appears that Mary Mc- bewildered, walked the halls on the 
 
 Hugh, the plaintiff, brought suit to floor on which his room was situ- 
 
 recover damages for the loss of her ated, and about the middle of the 
 
 husband, alleging that his death was day the housekeeper reported to 
 
 caused bytheimproperconductofthe the proprietor that he was out of 
 
 innkeepers. McHugh, her deceased his room and was sitting, partially 
 
 husband, came to the hotel of the de- dressed, on the side of the bed in 
 
 fendants late at night, registered, another room. The proprietor and 
 
 was assigned to and paid for a room his porter started in search of Mc- 
 
 for the night, and retired. On the Hugh, and the proprietor seemed to 
 
 following day he complained of being have exhibited some excitement or 
 
 313 
 
§ 345. 
 
 INNKEEPERS — BOAEDING-HOUSE KEEPERS. [PAET III, 
 
 and could have received him, and on account of it the guest 
 suffered great bodily barm. In the case of Hex v. Ivens^ it 
 was held that an indictment lies against an innkeeper who re- 
 fuses to receive a guest, he having room in his house at the 
 
 anger. When found, and when the 
 porter was leading him to his room, 
 the proprietor said that he could not 
 stay an}' longer, and on reaching the 
 room the porter put his coat, hat and 
 shoes on him, led him to the freight 
 elevator, put him on it and let him. 
 down to the ground floor. He took 
 him through a back room into the 
 alley and led him into the alley. 
 Rain was falling and the day was 
 cold. A stream of water and melt- 
 ing snow was running down the 
 alley. McHugh was without over- 
 shoes, overcoat, or wraps of any de- 
 scription. When the porter was 
 taking him down the alley he fell 
 to the pavement. Soon after he 
 was discovered, having raised up, 
 leaning. heavily against the wall of 
 the hotel, but apparently unable to 
 step, the porter behind him urging 
 him forward. An ofScer found them 
 in this situation, and at once sent 
 for an ambulance; during the time, 
 however, that he was going after the 
 ambulance, the sick man laid in the 
 snow and water. He was taken to 
 the hospital, but when they arrived 
 all signs of life had disappeared. In 
 such case it was held that the de- 
 fendants, the innkeepers, were liable 
 in damages. 
 
 17 Car. & P. 578. 
 
 "Godson, for the defendant: Does 
 your lordship think that an indict- 
 ment lies against an innkeeper for 
 refusing to receive a guest? I know 
 that an action may be brought 
 against him If he does so; and such 
 an action was brought against an 
 innkeeper at Lancaster a few years 
 ago. This is only, at most, a private 
 injury to IMr. Williams, and not an 
 oflfense against the public. 
 
 "Coleridge, J.: There can be no 
 doubt that this indictment is sus- 
 tainable in point of law. Mr. Ser- 
 jeant Hawkins distinctly lays it 
 down that an indictment lies for 
 this offense. . . . 
 
 "Coleridge, J. (in summing up); 
 The facts in this case do not appear 
 to be much in dispute; and though 
 I do not recollect to have ever heard 
 of such an indictment having been 
 tried before, the law applicable to 
 this case is this: that an indictment 
 lies against an innkeeper who re- 
 fuses to receive a guest, he having at 
 the time room in his house; and 
 either the price of the guest's enter- 
 tainment being tendered to him, or 
 such circumstances occurring as will 
 dispense with that tender. This law 
 is founded in good sense. The inn- 
 keeper is not to select his guests. He 
 has no right to say to one, you shall 
 come into my inn, and to another 
 you shall not, as every one coming 
 and conducting himself in a proper 
 manner has a right to be received; 
 and for this purpose innkeepers are 
 a sort of public servants, they having 
 in return a kind of privilege of en- 
 tertaining travelers, and supplying 
 them with what tliey want It is 
 said in the present case that Mr. 
 Williams, the prosecutor, conducted 
 himself improperly, and therefore 
 ought not to have been admitted into 
 the house of the defendant. If a 
 person came to an inn drunk, or be- 
 haved in an indecent or improper 
 manner, I am of opinion that the 
 innkeeper is not bound to receive 
 him. . . . It is next said that he 
 came to the inn at a late hour of the 
 night, when probably the family 
 were gone to bed. Have we not all 
 
 314 
 
CH. II.] 
 
 GUESTS. 
 
 [§ 346. 
 
 time; and that it is not necessary for the guest to tender the 
 price of his entertainment if his rejection is not on that ground. 
 And it is no defense for the innkeeper that the guest was 
 traveling on Sunday, and arrived at the inn after the inn- 
 Ifeeper's family had gone to bed; nor is it any defense that 
 the guest refused to tell his name and abode, as the innkeeper 
 had no right to insist upon knowing these particulars ; but if 
 the guest come to the inn drunk, or behave in an indecent or 
 improper manner, the innkeeper is not bound to receive him. 
 §316. May refuse to receive or to entertain, when. — From 
 what has already been said, it follows that an innkeeper will 
 be protected in refusing to admit certain persons into his inn, 
 and, if they have once been admitted, in turning them out; 
 or, in some cases, taking them to a place where they can be 
 
 knocked at inn doors at late hours of 
 the night, and after the family have 
 retired to rest, not for the pur- 
 pose of annoyance, but to get the 
 people up ? In this case it further 
 appears that the wife of the defend- 
 ant has a conversation with the 
 prosecutor, in which she insists in 
 knowing his name and abode. I 
 think that an innkeeper has no right 
 to insist in knowing those particu- 
 lars; and certainly you and I would 
 think an innkeeper very imperti- 
 nent who asked either the one or 
 the other of any of us. However, 
 the prosecutor gives his name and 
 residence; and supposing that he 
 did add the words 'and be damned 
 to you,' is that a sufficient reason for 
 keeping a man out of an inn who 
 has traveled till midnight ? I think 
 that the prosecutor was not guilty of 
 such misconduct as would entitle 
 the defendant to shut him out of his 
 house. It has been strongly objected 
 against the prosecutor by Mr. God- 
 son, that he had been traveling on a 
 Sunday. To make that argument of 
 no avail, it must be contended that 
 traveling on a Sunday is illegal. It 
 is not so, although it is what ought 
 to be avoided whenever it can be. 
 
 . . . With respect to the non- 
 tender of money by the prosecutor, 
 it is now a custom so universal with 
 innkeepers to trust that a person will 
 pay before he leaves an inn, that it 
 cannot be necessary for a guest to 
 tender money before he goes into an 
 inn. . . . And the opinion which 
 I have formed is, that the lateness 
 of the hour is no excuse to the de- 
 fendant for refusing to receive the 
 prosecutor into his inn. Why are inns 
 established? For the reception of 
 travelers, who are often very far dis- 
 tant from their own homes. Now, 
 at what time is it most essential that 
 travelers should not be denied ad- 
 mission into the inns ? I should say 
 when they are beniglited, and when, 
 from any casualty, or from the bad- 
 ness of the roads, they arrive at an 
 inn at a very late hour. Indeed, in 
 former times when the roads were 
 much worse, and were much infested 
 with robbers, a late hour of the night 
 was the time, of all others, at which 
 the traveler most required to be re- 
 ceived into an inn. I think, there- 
 fore, that if the traveler conduct 
 himself properly, the innkeeper is 
 bound to admit him, at whatever 
 hour of the night he may arrive." 
 
 315 
 
§§ 347-S.] INNKEEPEKS BOAEDING-HOUSE KEEPERS. [PAET III. 
 
 suitably and properly cared for; and this in all cases may not 
 be considered simply as the right or privilege of the innkeeper 
 but his duty — a duty he owes to the other guests of his house 
 to whom he would be liable if he should refuse to so act. Some 
 examples are noted in the following paragraphs. It would 
 however, be impossible to discuss every case which would fall 
 within what has just been mentioned. 
 
 § 347. When a guest is taken ill with contagious disease 
 
 "We have already noticed that the innkeeper would be liable to 
 his guests if he received them within his inn whereat the same 
 time he was harboring a person afflicted with a contagious dis- 
 ease, without giving notice to the guests admitted. It therefore 
 follows that he would have the right to rid his inn of such a per 
 son in order that he might carrjr on his business as an inn- 
 keeper. Where the person, however, has become ill with the 
 contagious disease after having been admitted as a guest, the 
 duty of the innkeeper toward him, by way of removing him 
 from the inn, is a very particular one. It has been held that 
 he "has the right to remove him, after notice, in a careful and 
 becoming manner and at an appropriate hour, to a hospitaler 
 other place of safety, provided the life of the guest is not im- 
 paired thereby." ' This right, however, to remove a guest 
 would not apply to one who was afflicted with other illness 
 than that which is contagious, even though the illness was a 
 disturbance and an annoyance to the other guests. The inn- 
 keeper in such case would not be justified in removing him ex- 
 cept in a manner suited to his condition.^ 
 
 § 348. Disorderly conduct. — For disorderly conduct the 
 innkeeper may refuse to receive a guest, and it is his duty to 
 not only refuse to receive him but even to expel him from 
 his inn, if after having been received he becomes disorderly. 
 This would apply to drunken and disorderly persons, as already 
 noticed, and it has been held that it also applies to those who 
 arc in such a filthy condition as to annoy the guests of the 
 place, for filthiness of person is disorderly.' But mere appre- 
 hension of insult is not sufficient reason for refusal.'' An Eng- 
 
 1 Levi V. Corey, 1 City Ct. (N. Y.) ' Markham v. Brown, 8 N. H. 52S. 
 Sup. 57. * Atwater v. Sawyer, 76 Me. 539. 
 
 - McHugh V. Schlosser, 159 Pa. St. 
 480, 39 Am. St. Eep. 699. 
 
 316 
 
CH. II.] GUESTS. [§ 348. 
 
 lish case, however, has gone so far as to hold that a guest might 
 be refused entertainment where his conduct was offensive to 
 the other guests, in that he had been in the habit of coming 
 into the inn with several large dogs which were annoying to 
 those stopping at the inn, and where he persisted in bringing 
 these animals into the inn notwithstanding the objections of 
 the innkeeper.^ From these examples and cases cited it will 
 be noticed that there must necessarily rest with the innkeeper 
 a very large discretion which he is required to exercise with 
 reasonably careful judgment, and that each case must neces- 
 sarily depend upon its own particular facts. It would be dif- 
 ficult, indeed, to lay down any fixed, settled rule which would 
 in all cases determine the rights and duties of the innkeeper in 
 receiving guests into his hotel, and in defining and stating his 
 right to exclude them or refuse them further entertainment. 
 
 1 Eeg. V. Reymer, 3 Q. B. D. 136. 
 317 
 
CHAPTER III. 
 
 LIABILITY, 
 
 (1) Op the Innkeeper. (2) Of the Guest. 
 
 351. 
 
 352. 
 
 § 849. Liable as an innkeeper. 
 
 850. The extraordinaiy liability on 
 grounds of public policy. 
 
 Liability and exceptions ana- 
 lyzed. 
 
 Where the loss is occasioned 
 by accidental fire and not 
 in any way the result of 
 fault or neglect of the inn- 
 keeper. 
 
 353. By act of God or the public 
 
 enemy. 
 
 354. By irresistible force without 
 
 negligence or fault on the 
 part of the innkeeper. 
 855. Forcible robbery, riots, etc. — 
 Diligence. 
 
 356. If the loss is occasioned by 
 
 force from within. 
 
 357. By reason of the inherent nat- 
 
 ure of the property. 
 
 358. Through the fault of the guest, 
 
 his servants or compan- 
 ions. 
 
 g 359. Reasonable regulations of the 
 inn. 
 
 360. For what property liable. 
 
 361. Must be a guest of the inn and 
 
 the property within the inn. 
 363. Infra hospitium. 
 
 363. Lost by theft. 
 
 364. If a boarder, not a guest. 
 
 365. Property of a third person. 
 
 366. Liable to corporation for loss 
 
 of agent's goods. 
 
 367. Exception — Goods for sale or 
 
 show. 
 
 368. Liability for personal injuries 
 
 to guests. 
 
 369. Defective or unsound condi- 
 
 tion of the premisea 
 
 370. Injuries from fire. 
 
 371. Unsanitary condition of the 
 
 _ inn and unwholesome food. 
 373. Limiting liability. 
 
 373. Innkeeper liable as ordinary 
 
 bailee. 
 
 374. Liable as gratuitous bailee. 
 
 § 349. Liable as an iniiteeper. — If we were to follow the 
 rule governing the liability of an ordinary bailee, a bailment 
 for the benefit of both parties, which that of an innifeeper 
 would seem to be, we could readily determine the duty of the 
 innkeeper as being that of ordinaiy diligence and his liability 
 as being for ordinary negligence. But it will be remembered 
 that this is an exceptional bailment and not an ordinary bail- 
 ment; that, except as modified by statute, the liability is an 
 extraordinary liability, the common-law liability being thatof 
 an insurer, or, as it is sometimes said, in the nature of an insurer. 
 It may be said, however, that the authorities are by no means 
 harmonious upon this subject. While it seems to be quite well 
 
CII. III.j 
 
 LIABILITY. 
 
 [§ 349. 
 
 settled that the common-law liability of an innkeeper is in the 
 nature of an insurer, the courts have deviated more or less 
 from that rule in their discussion of the principle, and have 
 virtually placed themselves within one of three classifications. 
 
 (1) "That the innkeeper is prima facie liable for the loss of 
 goods in his charge, but may discharge himself by showing 
 that the goods were not lost by his negligence or default." 
 
 (2) "That the innkeeper is discharged by showing that the 
 loss or injury was the result of inevitable accident or irresistible 
 force, though not amounting to what the law denominates the 
 act of God, and not attributable to the public enemy." 
 
 (3) " That the innkeeper is liable unless the loss was caused 
 by the act of God or the public enemy, or by the fault, direct 
 or implied, of the guest." ^ 
 
 1 Sibley v. Aldrich, 33 N. H. 553-63. 
 In this case the court has gathered 
 together very many of the leading 
 cases upon this subject at the time 
 of its decision, and has discussed 
 with great ability the English rules 
 then extant, citing in the opin- 
 ion Dawson v. Channey, 5 A. & E. 
 (N. S.) 165, where it was held that 
 when goods had been deposited in a 
 public inn and there lost or injured, 
 the presumption is that the loss or 
 damage was caused by the negli- 
 genceof the innkeeperor his servants, 
 but that this presumption may be re- 
 butted, and if the jury find in favor 
 of the innkeeper as to negligence he 
 is entitled to succeed on a plea of not 
 guilty. And in Metcalf v. Hess. 14 
 III. 133, where it was held that the inn- 
 keeper might discharge himself by 
 showing that the loss happened with- 
 out any default on his part. In Mer- 
 rill V Claghorn, 23 Vt. 177, it was 
 held that the innkeeper could not be 
 held where the property was lost by 
 fire, occasioned by inevitable or su- 
 perior force and without any negli- 
 Kgence on his part. And in Kesten 
 v. Hildebrand, 9 B. Monroe, 78, where 
 it was held that the innkeeper " is not 
 liable for a loss by external force or 
 
 robbery, or if the loss occur by the 
 neglect of the guest or his servants or 
 companions." The court in the same 
 case collects authorities to the point 
 that the innkeeper cannot discharge 
 himself by showing that the loss did 
 not happen by his default, but that 
 he must go further and show that it 
 was caused by the default, direct or 
 implied, of the owner; citing 2 Kent's 
 Com. 574, where it was said: "An 
 innkeeper, like a common carrier, is 
 an insurer of the goods of his guests 
 and can only limit his liability by ex- 
 press agreement or notice." And 
 Richmond v. Smith, 8 B. & C. 9, 
 where Lord Tenterden says: " It is 
 clear tliLt at common law when a 
 traveler brings goods to an inn the 
 landlord is responsible for them. In 
 this respect I think the situation of 
 the landlord was precisely analogous 
 to that of the common carrier. Bailey, 
 J., in the same case says: " It appears 
 to me that an innkeepers liability 
 very closely resembles that of a com- 
 mon carrier." Also citing Kent v. 
 Shackford, 3 B. & Aid. 803; Mason v. 
 Thompson, 9 Pick. 280 ; Shaw v. Berry, 
 31 Me. 478, where it was held that to 
 discharge an innkeeper from liability 
 forthe loss of the goods in his charge, 
 
 319 
 
§ 340. J INNKEEPEES BOAEDING-HOCSE KEEPEES. [PAET III. 
 
 One of the most extreme cases in this country and hold- 
 ing to the most extreme doctrine as to liability is tbat of 
 Hulett V. Sirift,^ where the court of appeals in !Ne\v York held 
 that an innkeeper is an insurer. In that case the plaintiff's 
 servants put up at the defendant's inn, the innkeeper takino- 
 charge of and stabling the plaintiff's horse, his wagon and a 
 load of buckskin goods. The plaintiff in the court below ob- 
 tained judgment for the full value of the property upon tlie 
 ground that the defendant innkeeper was an insurer of the prop- 
 erty of his guest placed in his custody. The court of appeals 
 affirmed the case. Porter, J., in rendering the opinion of the 
 court said : "An innkeeper is responsible for the safe-keeping 
 of property committed to his custody by a guest. He is an in- 
 surer against loss, unless caused by the negligence or fault of 
 the guest, or by the act of God or the public enemy." This 
 liability is recognized in the common law as existing by the 
 ancient custom of the realm, the judges in Calye's Case treat- 
 ing the recital in the special writ for its enforcement as con- 
 trolling evidence of the nature and extent of the obligation 
 imposed by law upon the innkeeper. The court in discussing 
 the liability of innkeepers puts it upon the ground of public 
 policy, saying that it had its origin in considerations of pub- 
 lic policy ; that it was essential to the interests of the realm; and 
 that every facility should be furnished for securing convenient 
 intercourse between different portions of the kingdom; holding 
 that to all intents and purposes the same rules of liability apply 
 to innkeepers that apply to common carriers, and that in 
 the case of loss either the innkeeper or the guest must be 
 the sufferer, and that the common law furnished the solution 
 of the question on which of them it should properly fall, and 
 quotes the following: "In Cross v. Andrews''' the defendant, if 
 
 it is not sufficient for him to show like the common carrier, is by 
 
 that the loss did not happen by his common law an insurer. Purvis v. 
 
 neglect or default, but that he must Coleman, 31 N. Y. 111-117; Wells v. 
 
 go further and show that it happened Steam Navigation Co., 2 Comst. 204; 
 
 by the fault, direct or indirect, of the Gile v. Libbey, 36 Barb. 70; Ingelsby 
 
 owner. v. Wood, 36 Barb. 458; Taylor v. Mon- 
 
 133 N. Y. 571. not, 4 Duer, 117; Grinnell v. Cook, 3 
 
 2 Croke's Eliz., 633. In the courts Hill, 488; Piper v. Manny, 31 Wend. 
 
 of New York it has been held in 382; 1 Pars, on Contracts, 633; Sbaw 
 
 very many oases that the innkeeper, v. Perry, 31 Me. 478; Gilbert v. Aid- 
 
 320 
 
OH. III.] LIABILITY. [§ 349. 
 
 he keep an inn, ought at his peril to keep safely his guest's 
 goods;" and further remarking that "he must guard them 
 against the incendiary, the burglar and the thief, and he is 
 equally bound to respond for the loss, whether caused by his 
 own negligence or by the depredations of knaves and maraud- 
 ers within or without the curtilage; " quoting also a long list of 
 New York authorities that uphold this doctrine; also author- 
 ities from some of the other states. 
 
 It may be said that, following this case, the legislature of the 
 state of New York saw fit to pass a law modifying the liabil- 
 ity of the innkeeper. 
 
 The supreme court of Michigan in Cutler v. Bonney^ involv- 
 ing nearly the same state of facts, took a different and more 
 liberal view of the law, and in the opinion discuss the case of 
 ^Hulett V. Swift. In the Michigan case, plaintiff brought suit 
 to recover the value of a certain horse, wagon and goods de- 
 stroyed by fire in the barn of the defendant, an innkeeper. It 
 was found by the court that the fire was not caused by the fault 
 of defendant or his servants, and the question was as to the lia- 
 bility of the inakeeper to respond in damages for the loss to 
 the guest. Campbell, J., rendered the opinion, and in the course 
 of it used these words: "In order to hold a bailee liable for 
 that which is in no respect to be imputed either to his own 
 negligence, or to that of persons for whom he is responsible, 
 there should be found clear authority. The common law has 
 declared this liability against one class of bailees, and has made 
 common carriers responsible for all losses not caused by the 
 public enemies, or some casualty in no way arising out of hu- 
 man action. It is claimed by plaintiffs that in this respect 
 common carriers and innkeepers stand on precisely the same 
 footing; and it is not claimed that defendants can be made 
 liable in the present case on any narrow ground. There are 
 many cases in which it has been said by judges that the liabil- 
 ity is Bot distinguishable. Most of these have been collected 
 in the notes of Mr. Holmes to the last edition of Kent's Com- 
 mentaries. 2 Kent, 596. But except in the decisions to be 
 especially referred to hereafter, there is nothing in the facts of 
 
 rich, 33 N. H. 533; Berkshire Woolen 1 30 Mich. 359. 
 Co. V. Proctor, 7 Gush. 437; Mason v. 
 Thompson, 9 Pick. 380. 
 
 31 331 
 
§ 349.] INNKEEPERS BOAEDING-HOOSE REEPEES. [PAET III. 
 
 any authority which we have discovered which called for any 
 such remark, or which would justify the enforcement of a lia- 
 bility for such a loss as the present. "With one or two excep- 
 tions the cases referred to have arisen from thefts or unex- 
 plained losses of property, while it was within the legal cus- 
 tody or protection of the innkeeper. The rule actually applied 
 in all these cases has been that all such losses were presumably 
 due to the neglect of the innkeeper. Generally, and perhaps 
 universally, he has been held to an absolute responsiu.lity for 
 all thefts from within, or unexplained, whether committed by 
 guests, servants or strangers. But he has quite as uniformly 
 been discharged by any negligence of the guest conducing to 
 the injury, and he has not been held for acts done bj'the serv- 
 ants of guests, or by those whom they have admitted into tueir 
 rooms. And in many cases it has been held discharged where 
 the guest has exercised any special control over his property. 
 The general principle seems to be that the innkeeper guaran- 
 tees the good conduct of all persons whom he admits under his 
 roof, provided his guests are themselves guilty of no negligence 
 to forfeit the guaranty. Beyond this we have found no decided 
 case anywhere. We have found no decision holding innkeep- 
 ers liable for losses by purely accidental casualties, or from 
 riots, or acts of force from without, such as have been from the 
 beginning excepted by the text-writers. These writers, or at 
 least such of them as are of recognized authority, have drawn 
 a line between carriers and innkeepers, resting on the distinc- 
 tion between absolute and qualified responsibility. And none 
 of the accepted writers have found any authority for disr ;- 
 garding this distinction. The two classes of bailees have been 
 kept carefully separate. . . . The common law has in some 
 things been modiJied by decisions, but it is contrary to law to 
 follow dicta made in cases calling for no departure from the 
 old law. It would be a manifest innovation to create a liabil- 
 ity where no possible default exists, and to sustain such an in- 
 novation there ought to be both reason and authority. We 
 cannot object to follow settled law on our own views of what 
 policy ought to make it. But we are not prepared to assume 
 there is any policy which will compel persons who are in no- 
 wise in fault to respond in damages, where the law is not clear 
 against them. And the authorities directly in point on losses 
 
 332 
 
CH. III.] LIABILITY. [§ 350. 
 
 by fire are not numerous, and do not, In our judgment, call for 
 any such consequences. The doctrine imposing such a liabil- 
 ity may be said to rest entirely on what was said by Justice 
 Porter in Hulett v. Swift, 33 IST. Y. 571. In that case the sub- 
 ject is discussed at some length and with much ability. But 
 no foundation is shown there for the doctrine asserted, beyond 
 remarks which are confessedly opposed to the text-books, and 
 which were foreign to what was actually decided in the cases 
 where they are found. The whole opinion of the learned judge 
 is open to the same criticism, as he himself declares the point 
 discussed did not really arise, inasmuch as no proof was intro- 
 duced changing the presumption raised by law against the de- 
 fendant. The opinion was not unanimous, and the dissent of 
 Judge Denio would detract much from its force, even if it had 
 been pertinent to the facts. Opposed to this is the case of 
 Merrill v. Claghom, 23 Vt. 1T7, in which Judge Eedfield, de- 
 livering the opinion of the court, reached the conclusion that 
 where there was no negligence there was no responsibility for 
 loss by fire. This opinion is an able one, and was not given 
 beyond the facts. It has been both approved and criticised, 
 but no occasion has heretofore arisen to consider its correctness 
 upon similar facts. Vance v. Throckmorton, 5 Bush (Ky.), 42, 
 is to the same effect, but there, too, the decision might have 
 rested on other grounds, and its authority is therefore dimin- 
 ished. We regard the decision in Vermont as reasonable, and 
 as within the fair meaning of the common-law rule." 
 
 § 350. The extraordinary liability on grounds of public 
 policy. — It was upon the ground of public policy that the 
 Eomans declared by prater's edict that if ship-masters, inn- 
 keepers and stable-keepers did not restore what they had re- 
 ceived to keep safe, he would give judgment against them. 
 The reason assigned for this edict was that it was necessary to 
 place confidence in such persons and to commit the custody 
 of things to them, and unless the rule was thus established an 
 opportunity would be afforded to them to combine with thieves 
 against those who trusted them, whereas they now had an in- 
 ducement to abstain from such combinations. There is no 
 doubt that in the case of innkeepers public policy demands a 
 very high degree of diligence. The guest who is a transient 
 or traveler is not supposed to know of the surroundings in 
 
 323 
 
§§ 351-2.] INNKEEPEES BOAEDIN&-HOUSE KEEPEES. [PAET III. 
 
 which he is placed; he puts himself entii'ely in the hands of 
 the innkeeper or his servants; he depends upon him for the 
 safe-keeping of himself and his property. At night he takes 
 the room that is assigned him; he sleeps and depends upon 
 the innkeeper to watch over him and his property; and because 
 of this utter dependence the law says, and public policy de- 
 mands, that the innkeeper shall be to him as an insurer, and 
 so the law protects the guest by holding that the innkeeper 
 shall be so liable. 
 
 § 851. Liability and exceptions analyzed.— From what has 
 already been said, and from the authorities examined, it may 
 be determined that the common-law liability of an innkeeper 
 for the property of his guest is that of an insurer, modified, 
 however, by the following exceptions: 
 
 (1) "Where the loss is occasioned by accidental fire, and is 
 not in any way the result of the fault or neglect of the inn- 
 keeper. 
 
 (2) By the act of God or the public enemy. 
 
 (3) By irresistible force, without negligence or fault of the 
 innkeeper. 
 
 (4) By reason of the inherent nature of the property. 
 
 (5) Through the fault of the guest, his servants or compan- 
 ions. 
 
 § 352. (1) Where the loss is occasioned by accidental fire 
 and not in any way the result of fault or neglect of the inn- 
 keeper. — The authorities, as we have seen, are by no means 
 harmonious upon this question, and it is somewhat diflBcult to 
 say where the weight of authority is. Some jurisdictions have 
 held that the innkeeper is an insurer of the property of the 
 guest which is placed in his hands for safe-keeping during the 
 time the guest remains in the inn, and that the innkeeper can 
 only be excused when the loss of such property is occasioned 
 by the act of God, the public enemy or the fault of the guest. 
 There is, however, a long line of authority holding with the 
 case of Cutler v. Bonnry, from which we have quoted, that 
 where the loss was the result of an accidental fire and in 
 no wise attributable to the negligence or fault of the inn- 
 keeper, he is not liable; and it would seem that the tendency 
 of the courts is to hold to this doctrine and to enlarge tlje 
 limitations of the rule fixing the liability of the innkeeper 
 
 324 
 
CH. in.] LIABILITY. [§ 352. 
 
 rather than to hold to the severity of it. In a case where it 
 can be said that there is no fault or negligence on the part of 
 the innkeeper, that the loss was purely and solely attributable 
 to accidental fire, to hold the innkeeper liable would be to say 
 that, for the fault or acts of other persons over whom he has 
 no control whatever, he must answer in damages. It would 
 seem that such a rule would have no foundation in principle, 
 and only rests in arbitrary and unreasonable dicta. It can 
 hardly^ be said that it is demanded by that rule of public 
 pohcy that has imposed the extraordinary liability upon the 
 innkeeper, for it is not the result of any fraud or collusion on 
 his part. It was not brought about in order that he might 
 gain by it; he is entirely without fault; and it would seem that 
 because of this it is without the reason of the rule, and there- 
 fore it should be without the rule. The more correct rule, it 
 appears, would be that the innkeeper is bound to exercise ex- 
 traordinary care, — care that would be in every way in keeping 
 with the great and important responsibility devolving upon 
 the innkeeper, having in view the fact that the guest has sub- 
 mitted to him the care of his life and his property, and if 
 loss occurs the innkeeper must suffer unless he can show that 
 he is not only not guilty of negligence, but that he has exer- 
 cised that extraordinary diligence which the particular case and 
 his particular business demands.' 
 
 1 Cases where innkeepers are held Cases holding that the innkeeper is 
 liable when loss was occasioned by not liable where the loss is not coca- 
 accidental fire: Pinkerton v. Wood- sioned by any fault or negligence on 
 ward,33 Cal. 557; Hay v. Pacific Imp. his part: Laird v. Eichold, 10 Ind. 213, 
 Co., 93 Cal. 53, held liable unless oc- 71 Am. Dec. 323; Baker v. Dessaner, 
 casioned by an irresistible superliu- 49 Ind. 28; Hulbert v. Hartman, 79 
 man cause, by a public enemy, by 111. App. 289; Johnston v. Richard- 
 the negligence of the owner, or by son, 17 111. 303, 63 Am. Dec. 369 and 
 the act of some one whom he has a case often cited, Vance v. Throck- 
 brought into the inn. Hulett v. morton, 5 Bush (Ky.). 41, 96 Am. Dec. 
 Swift, 33 N Y. 571; Shaw v. Berry, 327, 48 Am. Dec. 416; Cutler v. Bon- 
 31 Me, 478; Richmond v. Smith, S- ner, 30 Mich. 257; Dunber v. Day, 12 
 Barn. & Cres. 10; Sibley v. Aldrich, Neb. 596, 41 Am. Rep. 772; Howe 
 33N. H.553; Mateer v. Brown, 1 Cal. Machine Co. v. Pease, 49 Vt. 477; 
 228; Manning v. Wells. 9 Humph. Merritt v. Claghorn, 23 Vt. 177; 
 764; Thickstone v. Howard, 8 Blackf. Fisher v. Kelsey, 131 U. S. 383; Burn- 
 535; Mason V.Thompson, 9 Pick. 283; ham v. Young, 72 Me. 273. In the 
 Berkshire Woolen Mills v. Proctor, 7 case of McDaniells v. Robinson, 26 
 Cush. 427. Vt. 316-335, the court say: "In re- 
 
 325 
 
§ 353.] INNKEEPEES — BOAEDING-HOUSE KEBPEES. [PAET III. 
 
 § 353. (2) By act of God or the public enemy.— All the au- 
 thorities concede that where the loss occurred by reason of the 
 act of God or the public enemy, the innkeeper is excused from 
 liability. To this there is no necessity of citing authorities; 
 the only question in such oases to be determined is, Was the 
 force or act that caused the loss the act of God or the public 
 enemy? 
 
 An act of God has been defined to be such inevitable acci- 
 dent as could not be prevented by human care, skill or fore- 
 sight, but results from natural causes, such as lightning, tem- 
 pests, floods and inundations.' The public enemy in this con- 
 nection applies to enemies in time of war with foreign nations, 
 or to pirates who are considered at war with all mankind, but 
 it does not include robbers, thieves, rioters or insurgents, what- 
 ever be their violence. It has been held, however, that the 
 Confederate forces during the time of the rebellion were pub- 
 lic enemies.^ 
 
 gard to the general liability of an 
 innkeeper it is not surprising that 
 the law should still be so indeter- 
 minate. But the cases are fewer and 
 less decisive upon this important 
 subject than might have been ex- 
 pected. Even the absurd dictum in 
 Newton V. Trigg, 1 Showers, 269, 
 where Eyre, J., says, 'they (inn- 
 keepers) may detain the person of 
 the guest who eats,' has been con- 
 stantly quoted to establish the exist- 
 ence of such a right in the landlord, 
 and without much examination (al- 
 though the point decided in the case 
 is whether an innkeeper may become 
 a bankrupt), until the comparatively 
 recent case of Sunbolf v. Alford, 3 
 M. & W. 347, where Lord Abiuger 
 says: 'I would be sorry to have it 
 thought I entertain any doubt in 
 this case, or require any authority to 
 support the judgment I propose to 
 give, that no such right to detain the 
 person of the guest can be for a mo- 
 ment tolerated in a free country. 
 So, too, we find numerous creditable 
 judges, and some decisions, carrying 
 the liability of an innkeeper to the 
 
 full extent of a common carrier, and 
 thus making him an insurer against 
 all losses not caused by the act of 
 God or the public enemy. But such 
 is clearly not the general course of 
 the decis ons in Westminster Hall, 
 and that extreme responsibility was 
 expressly repudiated by this court 
 Merritt v. Claghorn, 23 Vt 177. It 
 is there held that an innkeeper is 
 not liable for loss of goods of the 
 guest by fire from without, the prob- 
 able act of an incendiary,and without 
 any fault or negligence on his part, 
 or on the part of any inmate of tlie 
 house. But we have never intimated 
 that we were prepared to put the 
 liability of an innkeeper upon the 
 same ground as that of other bailees. 
 On the contrary, we regard it as well 
 settled that the liability of an inn- 
 keeper is more severe than that of 
 any other bailee, with the single ex- 
 ception of common carriers." See 
 also note to 26 Vt. 342. 
 
 'Anderson's Law Diet; MoHenry 
 V. Philadelphia R. Co., 4 Harr. (Del.) 
 441. 
 
 2 Story on Bailments, sec. 526; 
 
 326 
 
CH. III.] LIABILITY. [§ 354. 
 
 § 354. (3) By irresistible force without negligence or fault 
 on the part of the innkeeper. — The rule is established by the 
 weight of authority, that where there is an absence of any 
 fraud, negligence or fault on the part of the innkeeper, and 
 the loss was occasioned by irresistible force from without the 
 inn, the innkeeper is not liable. The rulings upon this ques- 
 tion have been gathered from the reasoning and opinions of 
 courts in cases holding that the innkeeper is not liable, rather 
 than cases where the question of liability is positively de- 
 cided. 
 
 The good judgment of men, tempered with equal and exact 
 justice, would, however, dictate such a rule, and it cannot be 
 said to be at variance with the result of the more rigid rule 
 that makes the innkeeper an insurer of the property of his 
 guest, which law was said to rest in the demands of public 
 policy. The reason for that rule was that there often existed 
 collusion between the keeper of the inn and those who were 
 robbers and thieves and members of marauding bands who 
 pillaged and robbed the guests of the inn, the innkeeper being 
 equally at fault, aparUoeps criminis with those who perpetrated 
 the crime; and it was to correct this fault and to establish a 
 high degree of diligence to punish the slightest negligence 
 that the extremely rigid rule was adopted ; but the reason for 
 that rule does not exist in the conditions here stated, and there 
 is no reason why, in a case where the innkeeper is in no wise 
 at fault, and where he is entirely helpless and cannot resist or 
 oppose, where the force is actually and without question irre- 
 sistible and from without the inn, that he should be held liable 
 for the loss. Indeed, it can hardly be said, as we have already 
 discovered, that the innkeeper was at any time considered an 
 absolute insurer of the property of the guest. His liability 
 could always be more or less limited, if not entirely removed, 
 by proof of lack of fault or fraud or negligence on his part. 
 The rule more correctly stated is that an innkeeper is bound 
 to exercise extraordinary care; that his liability is approxi- 
 mately that of an insurer when the property of the guest is 
 
 Southern Express Co. v. Womack, 1 Monongahela Ins. Ca v. Chester, 43 
 Heisk. 369; State v. Moore, 74 Mo. Pa. St. 493. 
 418; League v. Rogan, 59 Tex. 434; 
 
 337 
 
§§ 355-6.] INNKEEPERS BOAEDING-HOUSE KEEPERS. [PAET III. 
 
 brought within the inn and expressly or by implication confided 
 to his care.^ 
 § 355, Forcible robbery, riots, etc. — Diligence — If the 
 
 robbery or riot that causes the loss is irresistible and without 
 fault or negligence on the part of the innkeeper or those in 
 charge of the inn, it can be clearly said that he would be ex- 
 cused from liability. While this is undoubtedly true, it must be 
 remembered, however, that before he can be excused he must 
 show that he could not have avoided the loss if he had exer- 
 cised a high degree of diligence ; for if by such diligence he, or 
 those under his control, could have avoided the loss, he would 
 be liable. If, for example, the force was great and irresistible, 
 and of such a nature that it could not have been repelled and 
 the loss could not have been prevented, yet if it should appear 
 that the innkeeper failed to lock the safe that contained the 
 property placed in his hands by the guest for safe-keeping, or 
 failed to guard the inn as usual and as high diligence on his 
 part demanded, or failed to call to his assistance any aid tliat 
 he might have called in to protect the property, he could not 
 shield himself by simply saying that it would have made no 
 difference — that the robbery would have occurred at all events ; 
 that tlie force was such that he could not have resisted it. He 
 must, in order to be excused, show that he exercised extraor- 
 dinary diligence; that he did everything }>ossibIe to resist the 
 force and avert the loss. But suppose he knew that his house 
 was to be raided by robbers or rioters at a certain time, and 
 by acting promptly he could have given notice to the police, 
 and by so doing have thwarted the plans, or at least have im- 
 peded the progress, of the robbers or rioters. It would cer- 
 tainly be his duty to give such notice, and he would not be 
 excused if he failed to do so, and to do whatever else he could 
 do to avoid the accomplishment of the crime. He would be 
 held to the very highest diligence in this respect, and to ex- 
 cuse himself from loss he would be obliged to show that he 
 had exercised such diligence.^ 
 
 § 356. If the loss is occasioned by force from within,— If 
 the loss occurred by reason of force from within the inn, 
 whether from the servants or guests, a very different question 
 
 1 Wessenger v. Taylor, 1 Bush (Ky.), 2 Hulbert v. Hartman, 79 DL App. 
 375. ' 289. 
 
OH. III.] LIABTLITT. [§ 356. 
 
 is presented. The innkeeper, it is said, "guarantees the good 
 conduct of all persons whom he admits under his roof," whether 
 they are servants or guests. He is not only under no obligation 
 to receive persons as guests who will steal from or rob the 
 guests of the house, but the law forbids that they shall be ad- 
 mitted by him either as guests or otherwise. The guests of the 
 inn have the legal right to rely upon the innkeeper to protect 
 them not only from the servants of the inn, over whom he has 
 control, but also from the guests whom the innkeeper admits 
 to the inn.^ At first blush it would seem to be a hardship to 
 hold the innkeeper to loss occurring by reason of larceny or 
 robbery committed by guests who have been admitted within 
 the inn, and who perhaps are unknown to the innkeeper, but 
 public policy seems to demand that he shall insure his guests 
 from loss by reason of the acts of his servants or the acts of 
 his guests. It is the duty of the innkeeper to provide honest 
 servants and keep honest inmates, and to exercise care and 
 vigilance over all persons who may come into his house, whether 
 as guests or otherwise. By the common law he is responsible 
 not only for the acts of his servants and domestics, but also 
 for the acts of his guests. The reason for this stringent rule 
 has been well stated by Sir William Jones. He says : ^ " Eigor- 
 ous as this rule may seem, and hard as it may actually be in 
 one or two particular instances, it is founded on the great prin- 
 ciple of public utility to which the private consideration ought 
 to yield. For travelers, who must be numerous in a rich and 
 commercial country, are obliged to rely almost implicitly upon 
 the good faith of innkeepers whose education and morals are 
 none of the best, and who might have frequent opportunities 
 
 1 A hotel keeper is not relieved cess to the room. Jacobs v. Haynes, 
 
 from liability for loss of a guest's 35 N. Y. S. 120. 
 
 property, including, samples of goods 2 Jones on Bailments, 95-96; Jalie 
 taken from his room by a fellow- v. Cardinal et al., 35 Wis. 118-136. 
 guest, admitted thereto by the cham- In Cunningham v. Buckey, 42 W. Va. 
 bermaid, merely because she had sev- 671, 35 L. E. A. 850, the court dis- 
 eral times seen the two guests to- cusses the common-law liability in 
 gethfer in the room, or because, as the this respect. Citing authorities, the 
 proprietor afterwards learned, the court say: "By the common law of 
 guest hadauthorized his fellow-guest England an innkeeper is responsible 
 to sell goods from the samples, as it for the loss of the goods or money of 
 does not follow therefrom that he a traveler who is his guest, when- 
 had given him authority to have ac- ever the loss is not occasioned by 
 
 339 
 
§ 356.] 
 
 INNKEEPEES — BOAEDING-HOUSE KEEPERS. [PAET III. 
 
 of associating with ruffians and pilferers, where the injured 
 guest would seldom or ever obtain legal proof of such com- 
 bination, or of their negligence if any actual fault had been 
 committed by them." 
 
 the default of the traveler himself, guests or otherwise. By the com- 
 
 the act of God or the queen's ene- 
 mies. Saund. Neg. 218. 'An inn- 
 keeper, like a common carrier, is an 
 insurer of the goods of his guests, 
 and he can only limit his liability 
 by express agreement or notice.' 2 
 Kent, Com. 594. ' The common law, 
 as is well known, upon grounds of 
 public policy, for the protection of 
 travelers, imposes an extraordinary 
 liability upon an innkeeper for the 
 goods of his guest, though they have 
 been lost without his fault.' 11 Am. & 
 Eng. Enc. Law, p. 51. ' If an innkeeper 
 fails to provide honest servants and 
 honest inmates, according to the 
 confidence reposed in him by the 
 public, his negligence in that respect 
 is highly culpable, and he ought to 
 answer civilly for their acts, even if 
 they should rob the guests who 
 sleep in his chambers.' Jones, Bail- 
 ments, 94-96. 'Generally, and per- 
 haps universally, he has been held to 
 an absolute responsibility for all 
 thefts from within or unexplained, 
 whether committed by guests, serv- 
 ants or strangers.' ' The general 
 principle seems to be that the inn- 
 keeper guarantees the good conduct 
 of all persons whom he admits under 
 his roof, provided his guests are 
 themselves guilty of no negligence 
 to forfeit the guaranty.' Cutler v. 
 Bonney, 30 Mich. 259, 18 Am. Rep. 
 127. ' Proof of the loss by the guest 
 while at the inn is presumptive evi- 
 dence of negligence on the part of 
 the innkeeper or of his domestics. 
 It is the duty of the innkeeper to 
 provide honest servants, and keep 
 honest inmates, and to exercise care 
 and vigilance over all persons who 
 may come into his house, whether as 
 
 mon law he is responsible not only 
 for the acts of his servants and do- 
 mestics, but also for the acts of other 
 guests.' Jalie v. Cardinal, 35 Wis. 
 118. 'Neither the length of time 
 that a man remains at an inn, nor 
 any agreement that he may make as 
 to the price of board per day or per 
 week, deprives him of his character 
 as traveler and guest, provided he 
 retains his status as a traveler in other 
 respects.' Id. There is no question 
 that the plaintiff was a guest at the 
 defendant's hotel, and that while 
 there he was robbed in his room 
 while asleep, from within the defend- 
 ant's family, including his servants. 
 That he had been drinking, was care- 
 less with his money, and trusted in 
 the honesty of defendant's house- 
 hold, and refused the services of 
 Mrs. Buckey as to the care of his 
 money, will not excuse the defend- 
 ant from the dishonesty of those ad- 
 mitted to his employment. It was 
 his duty to surround himself with 
 honest servants for the protection of 
 the public; and he cannot excuse 
 himself from liability by showing 
 that the servant was a stranger and 
 hired on recommendation as to good 
 character. He should have exer- 
 cised care and vigilance over wander- 
 ing servants admitted to his house, 
 and see that they did not have the 
 opportunity to steal from his guests.'' 
 Gile V. Libby, 36 Barb. (N. Y.) 70; 
 Houser v. Tully, 62 Pa. St. 93; Walsh 
 V. Porterfield. 87 Pa. St. 376; Fuller 
 V. Coats, 18 Ohio, 343; Smith v. Wil- 
 son, 86 Minn. 334; Spring v. Hagar, 
 145 Mass. 186; Rockwell v. Proctor, 
 39 Ga. 105. 
 
 380 
 
OH. III.] LIABILITY. [§§ 357, 358. 
 
 § 357. (4) By reason of the inherent nature of the prop- 
 erty. — Where the loss occurs without the fault of the innkeeper 
 and because of the inherent nature of the property, the innkeeper 
 cannot be chargeable with its loss. As, where fruit perishes, 
 or where animals die because of disease, or are injured on ac- 
 count of their vicious nature.' But should the animal not die 
 or be lost from its own inherent nature, from disease or its- 
 vicious action, the innkeeper would be liable unless he could 
 show that he was without fault or that it resulted from such 
 cause as would excuse him.^ In Howe Machine Co. v. Pease^' 
 the court say: " Loss of goods or chattels put in charge of an 
 innkeeper by a guest gives rise to a presumption of the inn- 
 keeper's negligence; but that presumption may be repelled, not 
 only by proof that the loss occurred through inevitable cas- 
 ualty or superior force, but by proof that he was not negligent,, 
 or proof that the goods or chattels were of a certain perishable- 
 or changeable kind, which would give rise to a presumption that 
 their loss occurred in due course and order of things." 
 
 § 358. (5) Through the fault of the guest, his servants 
 or companions. — This limitation of the innkeeper's liability 
 is upon the theory that the guest is guilty of contributory neg- 
 ligence, or it might be because of the tortious conduct of the 
 guest or the fault of his servants or companions. Just what 
 such negligence is, that will excuse the innkeeper from liability, 
 has been the subject of a great deal of discussion. In Mich- 
 igan it has been held that the innkeeper's liability for the bag- 
 gage of the guest is not diminished but rather increased by the 
 fact that the guest had become so intoxicated at his bar as to- 
 be unable to take care of it himself.* 
 
 It has been frequently held that the mere fact of failure tO' 
 lock or fasten the door of the room at night, as matter of law, 
 is not such negligence on the part of the guest as will relieve- 
 
 1 Howe Machine Co. v. Pease, 49 keeper. Sibley v. Aldrioh, 33 N. H.. 
 Vt. 477; Metoalf v. Hess, 14 111. 553. 
 129. 3 49 Vt. 477. 
 
 ^Hill V. Owen, 5Blackf. (Ind.)333. ^Rubenstein v. Cruikshanks, 54 
 And an innkeeper was held liable Mich. 199. " The fact that the guest 
 for damage to a guest's horse by the is intoxicated or his door unlocked 
 horse of another guest, although the will not destroy the liability of an 
 injury was occasioned without any innkeeper for theft committed by- 
 negligence on the part of the inn- his servants." Cunningham v. 
 
 Buckey, 47 W. Va. 67. 
 331 
 
§358.] INNKEEPERS BOAEDING-HOUSE KEEPEE8. [PAETIII. 
 
 the innkeeper from loss, but that this fact may be taken in 
 connection with others as evidence of negligence for the jury- 
 to consider. The tendency, however, of the more modern 
 cases is that failure to lock or bolt the door of a room at an 
 inn, when there is a lock or bolt upon it, maj^ of itself be given 
 to the jury as negligence.^ In Sicann v. Sriiith- it was held: 
 Where an inmate of a lodging-house leaves the door of his 
 room unlocked, knowing that persons may enter the house and 
 go to his room unnoticed, he cannot recover of the keeper of 
 the house for property stolen from his room, being himself 
 lacking in ordinary care. The question of negligence as ap- 
 plied to the guest of the hotel, as in every other case where negli- 
 gence is depended upon as a defense, must depend entirely upon 
 the circumstances and facts surrounding the particular occasion ; 
 as, for example, the place where it is said to have occurred \\''ould 
 have a great deal to do in the matter of deciding whether 
 what was done was negligence. In one place it might not be 
 considered negligence not to lock the door of a lodging room, 
 while in another, from the very surroundings of the place, it 
 might be considered gross negligence. In Smith v. Wihon^ it 
 was held that " a guest of an inn who had on a belt containing 
 $.500 while asleep in his room, the door of which could be 
 opened by pulling a wire attached to the bolt from the outside, 
 was not guilty of contributory negligencu the money having 
 
 1 Spring V. Hagar, 145 Mass. 186; McDaniels v. Robinson, 26 Vt. 316; 
 Spice V. Bacon, 36 L. T. (N. S.) 196; 11 Am. & Eng. Ency. 53. "Despite 
 Herbert v. Marl; well, 45 L. T. (N. S.) the divergency of the decisions in re- 
 649. In the case of Morgan v. Earey, gard to the scope of the liability of 
 6 Hurl. & N. '2()'^, 266, it is said that the innkeeper, it has generally been 
 "witnesses were, however, called on held that he is absolutely liable for 
 the part of the defendants to prove all thefts from within, or unex- 
 that the plaintiff had told them he jjlained losses of property in his 
 had not locked the door. It was ad- charge, but that he may be dis- 
 mitted that he did not use the bolt, charged from liability by any con- 
 There was a notice posted up over ti'ibutory negligence of the guest, his 
 the mantelpiece requesting all visit- servants or companions, and in many 
 ors to use the night bolt. The plaint- cases he has been discharged when 
 iff admitted he saw it, but said he the guest exercised no special oon- 
 did not read beyond the word 'no- trol over his property.'' 
 tice.' Chief Baron Pollock, at nisi 2 i4 Daly, 114; Smith v. Wilson, 36 
 prm.s, left the question of negligence Minn. oo4; Fuller v. Coats, 18 Ohio 
 to the jury, but told them at the St. 343. 
 same time that the guest was not ■* 36 Minn. 334. 
 bound to lock his bedroom door." 
 
 333 
 
CH. ni.J LIABILITY. [§§ 359, 360, 
 
 been stolen." And in Becker v. Warner^ it was held "a ques- 
 tion for the jury to determine whether it was contributory neg- 
 ligence where the guest, who was intoxicated, left the window 
 of his room on the ground floor open and the lights burning in 
 the room and went to bed." 
 
 §359. Reasonable regulations of the inn. — There is no 
 doubt that the innkeeper may limit his liability by requiring 
 his guests to conform to certain reasonable regulations. These 
 regulations must in this case, as in every case where they are 
 used for the limiting of liability, be reasonable. This is gen- 
 erally done by posting them in the several rooms of the inn; 
 but the mere fact of posting them in the rooms is not sufficient : 
 it is necessary that they should come to the actual. notice of 
 the guest. Where reasonable regulations have been made, and 
 the guest has had actual notice of them, he will be bound by 
 them if it appears that by reason of his failure to comply with 
 the regulations the loss occurred. For in such case it could be 
 reasonably concluded that the loss was occasioned by the neg- 
 ligence of the guest.^ The guest is also liable for the negli- 
 gence of his servants which results in loss or injury to the 
 property, as well as the negligence of his companions, or per- 
 sons whom he harbors, or persons over whom he has control 
 while a guest at the inn.' 
 
 § 360. For what property liable. — As a general rule an inn- 
 keeper is liable for all the goods, chattels and money of the 
 
 1 35 N. Y. S. 739. to make use of sufRcient fastenings 
 -Fuller V. Coats, 18 Ohio St. 343; provided for the safety of the room 
 Cashill V. Wright, 6 El. & Bl. 891; from which they were stolen, are 
 Purvis V. Coleman, 31 N. Y. 111. "A evidenoeof oontributorynegligence." 
 notice posted in the room of an hotel Shultz v. Wall, 134 Pa. St. 262; John- 
 directing guests to leave their valu- son v. Richardson, 17 111. 302; Kisten 
 ables in the hotel vaults does not v. Hildebrandt, 9 B. Mon. (Ky.) 74. 
 apply to mineral specimens in a In Burbank v. Chapin, 140 Mass. 123, 
 guest's trunk." Brown Hotel Co. v. it was held "that an innkeeper, in 
 Burokhardt (Col.), 56 Pac. 188. the absence of an express contract 
 sCalye's Case, 8 Coke, 32; Walsh v. to the contrary, is liable for the loss 
 Porterfield, 87 Pa. St. 376. "The con- by theft of the property of his guest, 
 duct of the guest contributing to his although the guest knowingly fails 
 loss, whether voluntary or negligent, to comply with the reasonable regu- 
 is always a defense; and his failure lations of the inn, if the loss is not 
 to deposit valuables in a safe place attributable to the non-compliance 
 provided by the landlord, after ex- with such regulations." 
 press notice so to do, and his neglect 
 
 333 
 
§ 360.] 
 
 INNKEEPEES BOAEDING-HOUSE KEEPERS. [PAET III. 
 
 guest that is brought within the inn; and the limitation that 
 commonly applies to common carriers, which limits the prop- 
 erty to that which is carried for the convenience of the pas- 
 senger, does not apply in the case of an innkeeper,' but includes 
 whatever property the guest may take within the inn while he 
 is a guest. It has been held to include a peddler's stock of goods, 
 and other property of an entirely different nature from that 
 which a guest would carry for his convenience while traveling, 
 as will be noticed in cases cited in the note. There has been 
 no distinction made by the courts between money and goods 
 of a guest in cases touching the liability of the innkeeper, and 
 the responsibility of the innkeeper in respect to the money of 
 his guest is not limited to such an amount as is necessary for 
 the guest's traveling expenses.^ The only exception, if indeed 
 it is an exception, is where the guest obtains a room to be used 
 
 iBerkshire Woolen Mills v. Proctor, 
 7 Cush. 417; Wilkins v. Earle, 44 N. Y. 
 172. Some of the states, however, 
 have held to the rule that the per- 
 sonal property for which the inn- 
 keeper is liable consists of such 
 articles of necessity or personal con- 
 venience as are usually carried by 
 passengers for their personal use. 
 Lassen & Whitaker v. Clark, 37 Ga. 
 242. Maryland follows the same rule; 
 and in Pettigrew v. Barnham, 11 Md. 
 434. it was held: "The innkeeper is 
 liable without regard to actual fault 
 or neglect on his part, but such lia- 
 bility is limited to what is considered 
 baggage and does not extend to every 
 article t)ie guest may choose to carry 
 with him; tbe term ' baggage ' does 
 not embrace merchandise or other 
 valuables not designed for use or per- 
 sonal convenience on the journey. 
 Held, further, that the innkeeper is 
 not liable for silver knives, forks and 
 spoons carried by the guest in his 
 trunk, but is liable for personal orna- 
 ments or jewelry appropriate for a 
 traveler's wardrobe." In Tierber v. 
 Burrows, 27 Md. 130, it was held: 
 " Innkeepers, in relation to the bag- 
 gage of their guests, stand on the 
 
 same footing as carriers of passen- 
 gers." The great weight of author- 
 ity, however, is as laid down in the 
 text,— the liability held to extend to 
 personalty of all kinds. Clute v. 
 Wiggins, 14 Johns. (N. Y.) 175; Hu- 
 lett V. Smith, 33 N. Y. .571; Houserv. 
 Tully, 62 Pa. St. 92; Metcalf v. Hess, 
 14111.129; Hilton v. Adams, 71 Me. 
 19; Cohen v. Manuel, 91 Me. 274; 
 Smith V. Wilson, 36 Minn. 331; Piper 
 V. Manny, 21 Wend. (N. Y.) 282, where 
 plaintiff recovered for a tub of butter. 
 And in Sneider v. Geiss, 1 Yeates 
 (Pa.), 34, the recovery was for two 
 hundred and thirty-one Spanish 
 milled dollars. In Hulett v. Smith, 
 33 N. Y. 571, the recovery was for 
 the plaintiff's horse and wagon and 
 a load of buckskin goods; and in 
 Clute V. Wiggins, 14 Johns. (N. Y.) 
 175, recovery was for certain bags of 
 wheat and barley. In Cohen v. Man- 
 uel, 91 Me. 274, a peddler's stock of 
 goods was held to be within the rule 
 of liabilty; and this was also held in 
 Rubenstein v. Cruikshanks, 54 Mich. 
 199. 
 
 2 Smith v. Wilson, 36 Mich. 334. 
 See also cases cited in preceding 
 note. 
 
 334 
 
OH. III.J LIABILITY, [§§ 361, 362. 
 
 distinctively for business purposes, as for displaying goods for 
 sale or show ; but even in such case the liability of an ordinary 
 bailee attaches.' 
 
 § 361. Must be a guest of the inn and the property within 
 the inn. — Before the liability of the innkeeper attaches, how- 
 ever, it must clearly appear that the owner of the property 
 which is injured or lost, and for which recovery is sought, is a 
 guest of the inn at the time of the loss, and that the property 
 was infra hospitium. The facts necessary to be shown to prove 
 that the person was a guest of the inn have already been dis- 
 cussed. 
 
 § 362. ■ Infra hospitium . — When the goods of the guest 
 
 may be said to be within the inn is a question of very great 
 importance in this connection. Just when can it be said that 
 the innkeeper has the goods in his possession as an innkeeper? 
 In other words, Just when can it be said that his liability com- 
 mences? "When are the goods infra hospitium ? It seems that 
 it is not necessary that the guest shall himself bring his goods 
 within the inn and deposit them with the innkeeper at the 
 time of his arrival, or that he shall even have them in his pos- 
 session at the time of his arrival at the inn ; but that the inn- 
 keeper is liable whenever the property is placed either in his 
 possession as an innkeeper, or whenever it is put in the custody 
 or control of his servants, either within the inn or without and 
 about the inn, if the property is taken possession of by them 
 while acting as the servants of the innkeeper and in compliance 
 with his directions; or when the traveler arrives at the inn and 
 places his baggage and property in the hands of the porter, 
 whose business it is to take charge of the baggage of guests, — in 
 such cases it is held to be within the inn and subjects the inn- 
 keeper to liability. The placing of the property in the hands 
 of the servants and the agents of the innkeeper, who are au- 
 thorized and expected to wait upon the guests and to care for 
 their property, is placing it in the custody of the_ innkeeper 
 himself. As, for example, where animals and vehicles, loads 
 of grain, goods of peddlers, or other like property has been 
 placed in the hands of the hostler at stables belonging to the 
 inn, it has been frequently held that the property is infra hos- 
 pitium, and if loss occurs for which the innkeeper cannot be 
 
 iSeejpos^, § 367. 
 335 
 
§ 362.] 
 
 INNKEEPEES BOAED1NG-HO0SE KEEPERS. [PAET III. 
 
 legally excused, he is liable.' And it has been held that where 
 an hotel keeper sends his porter to the depot to solicit persons 
 traveling to stop at the inn, and there takes charge of the bag- 
 gage, the traveler becoming a guest of the hotel, the liabil- 
 ity of the innkeeper for the baggage of the traveler begins 
 on the delivery of the baggage to the porter.' And in Williams 
 V. lloore''- it was held that an hotel keeper to whom a guest 
 delivers his baggage for the purpose of having his baggage 
 brought to the hotel is responsible for the loss of such bag- 
 gage through the negligence of an expressman to whom tlie 
 checks are given for such purpose, although the baggage is 
 never brought to the hotel. The retaining of money or valu- 
 ables on his own person while a guest at the inn is not neces- 
 sarily such an exclusive possession as would excuse the inn- 
 keeper from liability.^ !Nor will the liability of the innkeeper 
 cease if the guest directs his goods to be ke]it in a certain part 
 of the inn, or should order them taken to his room.* Eut if 
 
 1 Mason v. Thompson, 9 Pick. 
 (Mass.) 380; Albian y. Presby, 8 N. H. 
 408. This case, though an early one, 
 collects many of the autliorities on 
 this subject. The court say: "The 
 general principle that an innkeeper 
 is bound to keep safely the goods of . 
 his guest which are in his custody 
 infra hoHpitinm, but that he shall an- 
 swer for nothing without the inn, is 
 well settled. There are exceptions 
 where the loss is occasioned by the 
 servants or companions of the guest, 
 not necessary to be further noticed 
 at this time." In Clute v. Wiggins, 
 14 Johns. 175, it was held, where a 
 sleigh-load of grain was put by the 
 guest into an outhouse appurtenant to 
 the inn, where loads of tliat descrip- 
 tion were usually received, and the 
 grain was stolen during the night, 
 that the innkeeper was liable for tlie 
 loss. Judge Story, referring to this 
 case, says: "Where goods are deliv- 
 ered at the usual place for such 
 goods, the innkeeper is chargeable 
 with them, although not strictly 
 within the inn." Story, Bailm. 314. 
 
 1 In Coskery v. Nagle, 83 Ga. 696, 
 it was held: "When a traveler arrives 
 at a depot and is met by one who is 
 a porter of an inn, hotel, or house 
 kept for the accommodation of tran- 
 sient guests, wayfarers and travelers, 
 who indicates to the traveler a cer- 
 tain conveyance by which he can go 
 to such place or not, and the traveler 
 delivers to him his baggage or the 
 check therefor,the traveler is thereby 
 a guest of such inn. hotel or house, 
 so far as to render the proprietor 
 thereof liable for the safe-keeping 
 or redelivery of the same; the lia- 
 bility of the proprietor commences 
 from the time of the delivery of the 
 baggage or check to the porter; all 
 that the traveler must do is to assure 
 himself that the person representing 
 himself as such porter is in fact the 
 porter of the house." Dickinson v. 
 Wmchester, 4 Cush. (Mass.) 114. 
 
 2 09 111. App. 618. 
 
 sjalie V. Cardinal, 35 Wis. 118; 
 Smith V. Wilson, 36 Minn. 334. 
 < Fuller V. Coats, 13 Ohio St. 433. 
 
 336 
 
CH. III.J LIABILITY. [§ 363. 
 
 the guest should give such directions as to the care of the goods 
 or property as would remove it from the custody or control of 
 the innkeeper, as, for example, placing it in the hands of some 
 other person for safe-keeping, in such case the innkeeper would 
 be relieved of liability.' 
 
 § 363. Lost by thet't.-^. Where the loss occurs by theft 
 
 committed by the servants of the innkeeper, or by other guests, 
 and without the fault of the guest sustaining the loss, his serv- 
 ants or companions, the innkeeper is liable. The rule is ad- 
 mirably stated in the case of Houserv. Telia? The court say: 
 "The liability of an innkeeper arises from the nature of his 
 employment. He holds out a general invitation to travelers 
 to come to his house and he receives a reward for his hospitality. 
 The law in return imposes on him corresponding duties, one 
 of which is to protect the property of those whom he receives 
 as guests. He is bound to take all possible care of the goods 
 and baggage of his guest deposited in his house, or intrusted 
 to the care of his family or servants, and he is responsible for 
 their acts as well as the acts of other guests. If the goods of 
 the guest are damaged in the inn or are stolen from it by the 
 servants or domestics, or by a stranger guest, he is bound to 
 make restitution, for it is his duty to provide honest servants 
 and to exercise an exact vigilance over the persons coming into 
 his house as guests or otherwise. His responsibility extends to 
 all his servants and domestics, and to all the goods and money 
 of his guest which is placed within the inn, and he is bound in 
 every event to pay for them if stolen, unless they are stolen 
 by a servant or companion of the guest. In case of a loss by 
 theft it is no excuse for the innkeeper that he was sick or ab- 
 sent from home at the time, for he is bound in such case to 
 provide honest and faithful servants according to the confidence 
 reposed in him by the public. . . . But though an inn- 
 keeper is liable on the grounds of soundest policy and public 
 convenience for whatever is deposited in his house by a guest, 
 
 1 In Houser v. Telia, 93 Pa. St. 92, inmate in whom he reposes his con- 
 it was held "an innkeeper is not lia- fidence." Sneider v. Geiss, 1 Yeates 
 ble for the loss or embezzlement of (Pa.), 24. 
 
 his guest's money when he does not ^ 62 Pa. St. 93-95 ; Walsh v. Porter- 
 deposit it on the security of the inn field, 87 Pa. St. 376; Clute v. Wiggins, 
 but intrusts it to another guest or 14 Johns. 175. 
 33 337 
 
§§ 364r-5.] INNKEEPERS BOA.EDING-HO0SE KEEPEES. [PAET III. 
 
 he is not responsible for the loss or embezzlement of his guest's 
 money, where he does not deposit it on the security of the inn, 
 but intrusts it to another guest or inmate for safe-keeping, in 
 Avhom he reposes his trust and confidence." ' 
 
 § 364. If a boarder, not a guest. — If the person who sus- 
 tains the loss be merely a boarder and not a guest at the hotel, 
 the extraordinary liability for loss does not attach. But in 
 such case the liability for property lost by theft, or by any of 
 the causes already discussed, rests upon the question of ordi- 
 nar}' diligence rather than upon the exceptional liability, for 
 the innkeeper is only a bailee for hire.^ There are some cases 
 that are not in harmony with this doctrine; but this seems to 
 be the general rule. 
 
 § 365. • Property of a third person. — The ownership 
 
 of the property lost infra Jiospitium by the guest is not an 
 essential to recovery. If the property of a principal is brought 
 by his agent or servant while a guest within the inn as bag- 
 gage, or for use in the business of the principal, and is lost 
 under such circumstances as would ordinarily render the inn- 
 keeper liable, in such case the usual liability of an innkeeper 
 attaches and the principal would have an action against him 
 for such loss. In Towson v. Havre de Grace Bank ' it was held 
 " if a servant is robbed of his master's money or goods while 
 a guest at an inn, the master may maintain an action against 
 
 1 Sneider v. Geiss, 1 Yeates, 35. theft of the goods. In a later case in 
 
 2 A very full discussion of this ques- England, Holden v. Soulby, 8 Com. B. 
 tion, as well as of the liability of the (N. S.) 254, 264, 270, it was held "that 
 innkeeper to protect the property of a lodging-house keeper was not re- 
 the guest, may be found in the notes sponsible for the loss of certain prop- 
 in the case of Taylor v. Downey, 104 erty of a lodger who was about to 
 Mich. 532, 29 L. R A. 92. In Eng- quit, which had been stolen by a 
 land it has been held that the board- stranger, who in the absence of such 
 ing-house keeper is liable as a hired lodger was permitted by the occupier 
 bailee to take such care of the board- of the house to enter the room for 
 er's baggage as a prudent person the purpose of viewing it." The su- 
 would take of his own property under preme court of Tennessee in Man- 
 like circumstances. Dansey v. Rich- ning v. Wells, 9 Humph. 746, held 
 ardson, 3 El. & Bl. 144, 148, 171. But "that it is sufficient to give the 
 in this case the court was divided as boarder a remedy when he shall 
 to whether a boarding-house keeper have proven the innkeeper has been 
 is liable for the negligence of his guilty of gross negligence.'' 
 servants where the latter leaves a 3 6 Harris & John. (Md.) 47, 14 Am. 
 door ajar and thus facilitates the Deo. 254. 
 
 338 
 
OH. III.] LIABILITY. [§ 366. 
 
 the innkeeper;" and the opinion, among other things, says: 
 " Thus it is said in Yelverton ' that if A. sends his money by a 
 Mend who is robbed in the inn at which he is a guest, A. shall 
 have the action,' and there is no reason why it should not be 
 so, the innkeeper being chargeable, not on the ground that he 
 entertains the owner of the money or other goods, but because 
 he receives, no matter by whom paid, a compensation for the 
 risk." 
 
 § 366. liable to corporation for loss of agent's goods. — 
 And so it has been held that a corporation may sustain an ac- 
 tion against the innkeeper for loss of its goods while in posses- 
 sion of its agent who is a guest at the inn. In Berkshire Woolen 
 Co. V. Proctor'^ this question was fully considered. The court 
 say: "Another ground of defense taken in behalf of the de- 
 fendants is, that this action cannot be maintained because 
 plaintiffs, being a corporation, were not and could not be in the 
 nature of things the guest of the defendants; that an innkeeper 
 is liable only for the goods of his guest, and that therefore the 
 defendants are not liable for the money of the plaintiffs, as 
 they were not actually' or constructively the guests of the 
 defendant. But this reasoning cannot prevail. E. was the 
 defendant's guest, and he was the agent and servant of the 
 plaintiffs, and the money which was lost, and for which this 
 suit was brought, was the plaintiffs' money in the possession 
 of E., delivered by the plaintiffs to him as their servant and 
 agent, to be expended in their business. This action, there- 
 fore, can well be maintained upon the well-settled principle of 
 law, that, if a servant is robbed of his master's money or goods, 
 the master may maintain the action against the innkeeper in 
 whose house the loss was sustained." ^ 
 
 A bailee who is a guest at the inn may recover for property 
 lost while a guest, and this is the rule even if he is a gratuitous 
 bailee and not liable to the general owner for the loss. 
 
 In Chamlerlain v. West ^ an action was brought by a guest 
 
 17 Cush. 417-434. Co., 30 Minn. 265; Russell v. Butter- 
 
 2Bedle v. Morris, Yelv. 163; Ben- field, 31 Wend. (N. Y.) 300; Meohan- 
 
 nett V. Mellor, 5 Jr. Rep. 273; Mason ics' Bank v. Farmers' Bank, 60 N. Y. 
 
 V. Thompson, 9 Pick. 280; Grinnell 40. And to the point that the bailee 
 
 V.Cook, 3 Hill. 485; Coykendall v. may maintain an action, though not 
 
 Eaton, 55 Barb. (N. Y.) 188-190. responsible to the general owner for 
 
 '37 Minn. 54; Jellett v. St. Paul R. the loss, Falkner v. Brown, 13 Wend. 
 
 339 
 
§ 367.] INNKEBPEES BOAEDING-HOUSE KEEPEES. [PAET III. 
 
 to recover the value of a diamond scarf-pia alleged to have 
 been stolen from his room while a guest at the hotel. It 
 was shown that the plaintiff was not the owner of the pin; 
 that it had been loaned to him by a friend about ten years 
 previously. The court, in its opinion, says: "Kothing is 
 better settled than that, in actions for tort in the taking or 
 conversion of personal property against a stranger to the title,, 
 a bailee, mortgagee or other special property man is entitled 
 to recover full value, and must account to the general owner 
 for the surplus recovered beyond the value of his own interest; 
 but as against the general owner or one in privity with hinij 
 he can only recover the value of his special property." 
 
 § 367. Exception — Goods for sale or show. — The extraor- 
 dinary liability of an innkeeper applies where the guest is 
 using the inn for his accommodation as a guest, and, as we have 
 seen, attaches to property which he carries with him either for 
 use or for pleasure, and is not limited in amount or value; but 
 where a guest obtains a room to be used distinctively for busi- 
 ness purposes, as for the displaying of goods for show or sale, 
 the extraordinarjr liability of the innkeeper does not attach, 
 and for the loss of such goods he is only liable as an ordinary 
 bailee for ordinary negligence. In Jli/ersv. Cottrill^ the court 
 say : " I think this is the true rule of law on the subject. If a 
 person going into an hotel as a guest takes to his room not 
 ordinary baggage, not those articles which generally accom- 
 pany the traveler, but valuable merchandise such as watches 
 and jewelry, and keeps them there for show and sale, and from 
 time to time invites parties to his room to inspect and to pur- 
 chase, unless there is some special circumstance in the case 
 showing that the innkeeper assumes the responsibility as of 
 ordinary baggage, as to such merchandise the special obliga- 
 
 fi3; Morgan v. Portland, etc. Co., 35 other means for the same purpose." 
 
 Me. 55; Finn v. Western R. Co., 113 Dickinson v. Winchester, 4 Gush. 114, 
 
 Mass. 534. So a father may recover 50 Am. Dec. 760, 761, 764. It was 
 
 loss of property stolen from his son ruled that clothing purchased by a 
 
 while a guest at an inn. In Epps v. father for a minor son belongs to 
 
 Hinds, 37 Miss. 657, 61 Am. Dec. 538, the father, and that he may recover 
 
 539, it was said: "Where the son was for its loss by an innkeeper or car- 
 
 merely invested with a discretion as rier, unless the son has been emanoi- 
 
 to the expenditure of the money, pated. 
 the loss necessarily falls upon the ^ 5 Biss. 465. 
 party who was bound to furnish 
 
 340 
 
OH. III.j LIABILITY. [§ 368. 
 
 tions imposed by the common law do not exist, and the guest, 
 as to those goods, becomes their vendor and uses his room for 
 the sale of merchandise and really changes the ordinary 
 relations between innkeeper and guest. It is, we know as a 
 matter of experience, impracticable for the landlord to notice 
 and vouch for every person who goes into the room. The 
 guest permits them to stay as long as he pleases and shows his 
 goods and sells them to whomsoever he pleases. "We must pre- 
 sume that it is not for that purpose that the innkeeper allows 
 persons to come to his house and enter his rooms, and the fact 
 that the vendor may sleep in the room we do not think 
 changes the rule." And it was held in this case that if the 
 plaintiff did use the room as a place for showing and selling 
 his merchandise as such, the extraordinary liability of the inn- 
 keeper did not exist. And in Carter v. Hobbs^ the court say: 
 " So, if a person who is a guest have a room especially for the 
 purpose of showing or selling his goods, he cannot hold the inn- 
 keeper to his liability strictly as such in respect to these goods." 
 § 368. Liability for personal injuries to guests, — The 
 doctrine of the liability of the innkeeper proceeds upon the 
 theory that he has control of his house and of the property, 
 servants and guests therein. He selects his own servants, and 
 is responsible for their acts while performing their duties. 
 To a certain extent he has control over his guests; he is not 
 bound to receive all who apply ; but the rules limiting the 
 reception of guests are such as tend to exclude people who 
 are not proper and fit persons to be harbored and kept at an 
 inn, and who could not be trusted to demean themselves in an 
 orderly manner. So that the innkeeper, in the exercise of sound 
 discretion and good judgment, has the right to refuse to receive 
 such persons as guests, limiting those to be received as guests 
 to persons who are fit, law-abiding, and reputable.^ Thus far 
 
 1 13 Mich. 53; Burgess v. Clements, to furnish a shop to every guest who 
 
 4 M. & S. 306; Mowers v. Fethers, 61 eomes into his house; and if a guest 
 
 N. Y. 34, 19 Am. Rep. 344, 346; Neal takes exclusive possession of a room 
 
 V. Wilcox, 4 Jones L. (N. C.) 146, 67 which he uses as a warehouse or 
 
 Am. Dec. 366, 367; Fisher v. Kelsey, shop, he discharges the landlord from 
 
 131 U. S. 383: Scheffer v. Corson his common-law liability." Farns- 
 
 (S. Dak.), 58 N. W. 555. And in an worth v. Paokwood, 1 Starkie, 349; 
 
 early English case the same rule was Becker v. Haynes, 39 Fed. 441. 
 laid down. "A landlord is not bound 2 in Markham v. Brown, 8 N. H. 
 
 341 
 
§ 369.] INNKEEPERS BOAEDING-HOUSE KEEPERS. [PAET III. 
 
 the innkeeper may choose; and it is for these reasons, and in 
 the following out of the general theory fixing the liability of 
 the innkeeper, that it may be said that the innkeeper is bound 
 to protect the guest within his inn from personal injury while re- 
 maining at his house as his guest. There is, as matter of course, 
 to be added to this the ordinary requirements that attach to every 
 keeper of a public place, to so protect and keep the place that 
 persons having a right to visit it or use it, not being themselves 
 guilty of negligence, shall be protected from personal injury. 
 The rule, however, fixing the liability of the innkeeper in 
 this regard has no doubt been varied more or less since the 
 early holdings of the English courts. As, for example, we find 
 in that early leading case in England, Calye's Case,^ the hold- 
 ing of the court is very much at variance with the present rule. 
 In that case the court say: " If the guest be beaten in the inn 
 the innkeeper shall not answer for it; for the injury ought to 
 be done to his movables which he brings with him; and by 
 the words of the writ the inn holder ought to keep the goods 
 and chattels of his guest and not his person." 
 
 § 369. Defective or unsound condition of the premises.— 
 It is the duty of the innkeeper to exercise ordinary care in 
 keeping the premises in such condition that the guest may be 
 safe while within the inn and using it in the ordinary manner. 
 This is upon the theory that the innkeeper extends an implied 
 invitation to all to come to his house and be entertained; and 
 he is therefore liable for injuries sustained in consequence of 
 the bad condition of the premises. And so if a guest should 
 be injured by reason of a defective elevator; or by reason of 
 want of ordinarily skilful management of the same;^ or, as 
 
 523. it was held that " an innkeeper house. He is not bound to examine 
 is liable if his house is disorderly, and into the reasonableness of the guest's 
 he cannot be held to wait until an requirements.' In Atwater v. Saw- 
 affray is begun before he interposes, yer, 76 Me. 539, it was held that 
 but may exclude common brawlers " mere apprehension of insult is no 
 and any who come with intent to excuse for an innkeeper's refusal to 
 commit an assault or make an affray, receive a person as guest, without 
 So he may prohibit to enter one circumstances and facts justifying 
 whose misconduct in other particu- such apprehension." 
 lars, or whose filthy condition, would ' 18 Coke, 32; Ten Brock v. Wells, 
 subject his guests to annoyance. Fargo & Co., 47 Fed. 690; MoHugh 
 And it has been held an innkeeper v. Schlosser, 159 Pa. St. 408. 
 may refuse to receive a disorderly '^ In Scott v. Churchill, 15 Miso. 
 guest, or require him to leave his (N. Y.) 80, affirmed in 157 N. Y. 693, 
 
 843 
 
CH. III.] LIABILITY. [§§ 370, 371. 
 
 has been held, if the guest should be injured by the falling of 
 a ceiling in the inn, which was due to the negligence of the 
 innkeeper in keeping the same in repairs, — in all such cases 
 the guest would have an action against the innkeeper, based 
 upon want of ordinary care. There is, however, this limita- 
 tion: "The general duty of an innkeeper to take proper care 
 for the safety of his guest does not extend to every room in 
 his house at all hours of the night or day, but must be limited 
 to those places into which guests may be reasonably supposed 
 to be likely to go in a reasonable belief that they are entitled 
 or invited to do so." ' 
 
 §370. Injuries from fire. — The liability of the innkeeper 
 for injuries to guests occasioned by fire rests upon the proof 
 of negligence upon the part of the innkeeper. If it can be 
 shown that the innkeeper was not guilty of negligence, and 
 that by exercising ordinary diligence the injury could not have 
 been averted, in such case at common law there would be no 
 liability. In some of the states, however, statutes have been 
 passed requiring innkeepers to provide fire-escapes. If an in- 
 jury was occasioned by reason of the failure of the innkeeper 
 to comply with the statute, he would be liable; but even where 
 feuch statutes exist, if it should be shown that the guest who 
 was injured could not have effected an escape or averted the 
 injury by the use of the fire-escape, then the mere fact that 
 there was no fire-escape provided would not be suflicient to fix 
 the liability upoa the innkeeper, if there was no want of ordi- 
 nary diligence upon his part. In other words, it would be 
 necessary to show that the injury occurred in consequence of 
 the want of a fire-escape.^ 
 
 § 371. Unsanitary condition of the inn and unwholesome 
 food. — Upon the same principle it is the duty of the innkeeper 
 
 it was held that "a guest at a hotel Abraham, 45 Hun, 238; Dawson v. 
 
 is entitled to recover for injuries Sloan, 100 N. Y. 620; 19 111. App. 571; 
 
 caused by the fall of a passenger- 152 Mass. 513. 
 
 elevator, if the hotel-keeper was i Walker v. Midland R Co., 55 L. T. 
 
 chargeable with negligence in allow- (N. S.) 489; Oxford v. Prior, 14 W. 
 
 ing the elevator to become unsafe. K. 611; Sandys v. Florence, 47 L. J. 
 
 And so it becomes the duty of the C. P. 598; Stanley v. Biercher, 78 
 
 proprietor of an hotel or apartment- Mo. 345; Ten Brock v. Wells, 47 Fed. 
 
 house to guard the shaft so that per- 690, 
 
 sons shall not be injured by falling ^ Weeks v. MacNulty, 101 Tenn. 495. 
 
 or stumbling into it." Atkinson v. 
 
 343 
 
§ 372.] INNKEEPEES — BOAEDING-HO0SE KEEPEES. [pAET III. 
 
 to exercise at least ordinary diligeace in keeping the hotel in 
 a sanitary condition. He holds out to the public impliedly, 
 by inviting them to his inn, that they will be entertained in a 
 place that is fit for the purpose for which it is kept. Where, 
 therefore, one by reason of the unsanitary condition of the 
 hotel contracts a disease, or where by reason of the condition 
 of the hotel he is subjected to some contagious disease, in 
 such case the innkeeper would be liable. And the same obli- 
 gation rests upon him with reference to food. It is his duty 
 to furnish to the guests wholesome food ; and where, by reason 
 of the unwholesomeness of food, guests are injured, a liability 
 attaches to the innkeeper and an action can be sustained.' 
 
 § 372. Limiting liability. — There seems to be no reason why 
 the innkeeper cannot expressly or impliedly contract to limit 
 his liability for the loss of the property of his guest, as it is en- 
 tirely a question of property rights in which the public can 
 have no interest, and public policy would not oppose it if the 
 limitation did not go to the extent of excusing gross negli- 
 gence; for as a general rule, no matter to what extent the lim- 
 itation is attempted, the liability will be that of an ordinary 
 bailee.- The innkeeper can no doubt by a regulation require 
 his guests to deposit their valuable articles in a safe or vault 
 provided by him, and this regulation may be brought home to 
 the guest by notice; but, as has already been stated, such notice 
 must be brought to the personal attention of the guest.' In 
 
 1 Sheflfer v. Wiloughby, 163 111. 518, responsible in case of loss. Wilson 
 54 Am. St. Rep. 483. Where an inn- v. Halpin, 1 Daly (N. Y.), 496. Gen- 
 keeper, with knowledge of the prev- eral notice, however, is not sufficient, 
 alence of smallpox in his hotel, per- Stanton v. Leland, 4 E. D. Smith 
 mitted a person to become a guest (N. Y.), 88. The notice must be 
 without informing her of the pres- brought home to the guest. The fact 
 ence of the disease, it was held that that it was posted on the door of the 
 the innkeeper would be liable to the guest's room is not suflficient to raise 
 guest if she contracted the disease a presumption that he had knowl- 
 while in the house, and was herself edge thereof. Bodwell v. Bragg, 29 
 guilty of no negligence contributing Iowa, 233. And where an agreement 
 to the injury. that the innkeeper shall not be re- 
 
 2 Pinkerton v. Woodward, 88 Cal. sponsible for the loss of valuables 
 547. unless deposited in the safe is printed 
 
 3 Where a guest is notified that he upon the register heading, and the 
 must deposit his baggage in a par- guest signs the register, it is held not 
 ticular place for safe-keeping and he to constitute a contract, or to be 
 neglects to do so, the innkeeper is not binding upon the guest, in the ab- 
 
 344 
 
CH. III.] LIABILITY. [§§ 373, 374. 
 
 most of the states, however, this matter is regulated by statute. 
 The duties and the liabilities of the innkeeper are fixed, as well 
 as the duty of the guest. 
 
 §373. Innkeeper liable as ordinary bailee. — Where the 
 ■extraordinary liability of an innkeeper does not attach for the 
 loss of the goods of the guest, the innkeeper may be liable as 
 an ordinary bailee. As, for example, where the goods of the 
 guest are kept for show or sale, or where goods are held by 
 the innkeeper for charges after the guest has departed, or for 
 goods and baggage of a regular boarder, as we have already 
 seen,' or for the goods of a guest who has paid his bill and 
 left the hotel, leaving his baggage in charge of the innkeeper, 
 lor a reasonable length of time the innkeeper is held to be 
 liable as an ordinary bailee.^ 
 
 § 374. Liable as gratnitoiis bailee. — For goods deposited 
 with the innkeeper for safe-keeping but without recompense, 
 as where baggage is left by one not a guest at the hotel, the 
 innkeeper, deriving no benefit, is a gratuitous bailee and liable 
 only as such; and the same rule would apply where the goods 
 of a departed guest had been left with the innkeeper for an 
 unreasonable length of time, and in such case the innkeeper 
 would be liable only for gross negligence. 
 
 sence of proof that he saw it ana hotels, innkeepers more or less gener- 
 
 assented to it. Bernstein v. Sweeney, ally respond to this demand and pro- 
 
 33 N, Y. Sup. Ct. 271. See ante, § 359. vide increased accommodations and 
 
 1 Fisher v Kelsey, 131 U. S. 883, 16 assume voluntarily duties respecting 
 Ped. R 71-74; Carter v. Hobbs, 13 the baggage of the guests thus left 
 Mich. 53; Mowers v. Fethers, 61 N. Y. in their charge. In such case, if the 
 34, 19 Am. Rep. 244, 347. liability of the innkeeper is that of 
 
 2 Adams v. Clem, 41 Ga. 65; Mur- voluntary bailee without oompensa- 
 iray v. Marshall, 9 Col. 483. In Giles tion, guests are left with little or no 
 V. Fountelroy, 13 Md. 126, it was protection. The case shows a tend- 
 said: "Departing guests not infre- enoy to enlarge it. And so in this 
 quently leave baggage in care of the case it was held that when a guest, 
 innkeeper for a few hours or a few on leaving an hotel without the in- 
 days, to be called for or to be for- tention of returning as a guest, fails 
 warded to some designated destina- to pay his bill, but returns within 
 tion. The great increase of modern forty-eight hours to get his valise, 
 travel creates an increased demand the innkeeper was bound to ordinary 
 for more extensive accommodations diligence, and the loss of the valise 
 in this respect. With a view of in- raised the presumption of negli- 
 fluencing travelers in selecting their gence." 
 
 345 
 
CHAPTER IV. 
 
 COMPENSATION AND LIEN OF THE INNKEEPER 
 
 § 375. Compensation — Lien. 
 
 376. The lien a common law lien. 
 
 377. Amount of compensation. 
 
 378. If the guest an infant. 
 
 379. The property of third persons. 
 
 380. Same subject. 
 
 3S1. The guest a servant, agent or 
 bailee of the owner. 
 
 383. Where the property is ani- 
 mate. 
 
 383. Where the guest has wrong- 
 
 fully possessed himself of 
 the property. 
 
 384. The lien of the innkeeper fixed 
 
 by statute. 
 
 385. The lien lost or waived. 
 
 386. Cannot be revived. 
 
 387. Boarding-house keeper. 
 
 §375. Compensation — Lien. — The innkeeper is bound to 
 receive all who apply at his inn for entertainment, subject to cer- 
 tain limitations already discussed, and is liable if he fails to 
 exercise that high degree of diligence ; in some cases the liabil- 
 ity even approaching that of an insurer, as we have seen. For 
 this entertainment and care he is entitled to compensation, which 
 he may demand in advance if he chooses to do so — a compensa- 
 tion limited only by reasonableness in amount. The payment of 
 this is secured to the innkeeper by a lien on the baggage or 
 property of the guest brought within the inn,' the lien being a 
 general lien upon the property infra hospitiura, attaching not 
 only to property within the hotel, but to animals and property 
 in the stables or barns of the innkeeper; and not only for the 
 keep of the guest, but for the keep of the animals or property, 
 and for any extras, as for wine or entertainment given by the 
 guest to his friends. And this lien is not limited to the prop- 
 erty of the guest infra hospitium not exempt from execution; 
 such exempt property is subject to the innkeeper's lien;^ and so 
 
 1 Rosenplaenter v. Roessle, 54 N. Y. 
 362; Manning v. Hollenbeck, 37 Wis. 
 203; Proctor v. Nicholson, 7 Car. & 
 Pay. 67; Turrell v. Crawley, 13 Q. B. 
 197; Alvordv. Davenport, 43 Vt. 30. 
 
 2 Swan V. Bourne, 47 Iowa, 501, 29 
 Am. Dec. 492. But it has been held 
 
 that a lien cannot attach to horse* 
 carrying United States mail. United 
 States V. Braney, 3 Wheel. C. C. 513. 
 But see Young v. Kimball, 28 Pa. St. 
 193. It is now generally held that 
 the lien is a general one and at- 
 taches to all of the property brought 
 
 846 
 
CH. IV.] COMPENSATION AND LIEN OF INNKEEPER. [§§ 376-3T8, 
 
 is the property of an infant guest if brought within the inn and 
 into the legal custody of the innkeeper; ^ and so also is the prop- 
 erty of a married woman for her keep, care and entertainment 
 while a guest. 
 
 In England it has been held that the separate property of a 
 married woman would become subject to the lien of the land- 
 lord where credit was given to the husband to make payments- 
 on account; the balance of the innkeeper's bill not being paid. 
 In that case the innkeeper was allowed to detain the wife's 
 luggage notwithstanding it was the separate property of th& 
 wife.^ 
 
 § 376. The lien a common-law lien. — The lien is a common- 
 law lien upon all the property brought within the inn by the 
 guest and in the custody of the innkeeper. There is no lim- 
 itation except by statute, and the statutes do not generally 
 limit, but more often enlarge, the scope of the lien. The laws 
 exempting property from levy and sale on execution are special 
 limitations upon the general execution and are only inoperative 
 to the extent of such limitation ; and so in the case in ques- 
 tion, if there are no special limitations by statute, the common- 
 law lien would attach to all the property of the guest, as we 
 have said.' 
 
 § 377. Amount of compensation. — The amount of com- 
 pensation the innkeeper is entitled to receive and charge and 
 which will be secured by his lien, as a general rule, may be 
 said to be whatever, under all the circumstances of the ease- 
 and the general usage of the business in the locality where the 
 inn or hotel is situated, would be considered reasonable; and 
 this amount includes the reasonable charges for the lawful 
 entertainmentof friends of the guest who have been invited by 
 him to the inn for entertainment, as well as the wine, cigars,, 
 and extras which he may order for said entertainment, or which, 
 he may have had while a guest at the hotel. 
 
 § 378. If the guest an infant. — If the guest is an infant, 
 it would seem on general principles governing the law of deal- 
 by the guest to the hotel. Milliner i Watson v. Cross, 3 Duv. (Ky.) 147.. 
 V. Florence, L. R. 3 Q. B. Div. 484. 2 Gordon v. Silver, 59 L. J. Q. B. 507^ 
 But does not attach to the person or 35 Q. B. Div. 491, 63 L. T. (N. S.) 383. 
 clothing of the guest. Sunbolf v. Al- ^ Swan v. Bourne, 47 Iowa, 501. 
 vord, 3 Mees. & W. 348. 
 
 347 
 
§ 379.] INNKEEPERS — BOAEDING-HOUSE KEEPEES. [PAET III. 
 
 ings with infants, that there might be some limitation upon 
 this general rule as to the amount for which charges could 
 be made by the innkeeper and the lien attach to the property 
 of the infant for the amount. Generally, as is well understood, 
 an infant is liable for necessaries and for benefits in certain 
 cases; but to saj' that wine suppers and extravagant extras are 
 necessaries might be an enlargement of the rule of law, to 
 say the least, if not an utter violation of the principle. 
 
 In Proctor v. Nicholson ^ it is said: " The landlord of an inn 
 may supply whatever things the guest orders, and the guest is 
 bound to pay for them, provided the guest be possessed of his 
 reason and is not an infant. In either of these latter cases the 
 landlord must look to himself." The question, however, as to 
 what are necessaries is more or less uncertain and difficult of 
 determination; it is a question for the jury, to be determined 
 under all the circumstances of the case under the direction of 
 the court. 
 
 § 379. The property of third persons. — The English rule 
 seems to have been followed by the courts in some instances, 
 though it would seem not to have been very wisely reasoned 
 out. This rule is, that because of the exceptional liability 
 of the innkeeper, approaching almost that of an insurer of the 
 goods brought within the inn by the guest, and because the 
 law makes it incumbent upon him to receive the goods of 
 the traveler or guest, that therefore he may have a lien for his 
 compensation upon whatever goods or property is brought by 
 the guest into the inn and placed in the custody of the inn- 
 keeper, without reference to the question of ownership; and, 
 indeed, the courts have gone so far as to hold that the inn- 
 keeper may even have a lien upon the property brought within 
 the inn by the guest, although it be property stolen by the 
 guest, if the innkeeper has no knowledge of that fact and re- 
 ceives it into his custody on the faith of the innkeeping rela- 
 tion. 
 
 The most vigorous discussion and contention for this Enghsh 
 rule may be found in the case of Rolins dc Go. v. Grat/.- In 
 that case the court say • " I have no doubt about this case. I 
 protest against being asked, upon some new discovery as to 
 the law of innkeeper's lien, to disturb a well-known and very 
 
 » 7 Car. & p. 67. 2 l. r. 2 Q. B. Div. (1895), 501, 503. 
 
 348 
 
OH. IV.] COMPENSATION AND LIEN OF INNKEEPER. [§ 379. 
 
 large business carried on in this country for centuries. The 
 duties, liabilities and rights of innkeepers with respect to goods 
 brought to inns by guests are founded, not upon bailment, or 
 pledge, or contract, but upon the custom of the realm with 
 regard to innkeepers. Their rights and liabilities are depend- 
 ent upon that, and that alone ; they do not come under any other 
 head of law. What is the liability of an innkeeper in this re- 
 spect? If a traveler comes to an inn with goods which are 
 his luggage — I do not say his personal luggage, but his lug- 
 gage,— the innkeeper by the law of the land is bound to take 
 him and his luggage in. The innkeeper cannot discriminate 
 and say that he will take in the traveler but not his luggage. 
 If the traveler brought something exceptional which is not 
 luggage — such as a tiger or a package of dynamite, — the inn- 
 keeper might refuse to take it in; but the custom of the realm 
 is that, unless there is some reason to the contrary in the ex- 
 ceptional character of the things brought, he must take in the 
 traveler and his goods. He has not to inquire whether the 
 goods are the property of the person who brings them or of 
 some other person. If he does so inquire, the traveler may re- 
 fuse to tell him, and may say, ' what business is that of yours? 
 I bring the goods here as my luggage, and I insist upon your 
 taking them in; ' or he may say, 'they are not my property, 
 but 1 bring them here as my luggage, and I insist upon your 
 taking them in ; ' and then the innkeeper is bound by law to 
 take them in. Again, suppose the things brought are such 
 things as the innkeeper is not bound to take in ; he may, as I 
 have said, refuse to take them in although the traveler de- 
 mands that they shall be taken in as his luggage; but if after 
 that the innkeeper changes his mind and does take them in, 
 then they, are in the same position as goods properly offered 
 to the innkeeper according to the custom of the realm. Then 
 the innkeeper's liability is not that of a bailee or pledgee of 
 goods; he is bound to keep them safely. It signifies not, so 
 far as that obligation is concerned, if they are stolen by burg- 
 lars, or by the servants of the inn, or by another guest; he is 
 liable for not keeping them safely unless they are lost by the 
 fault of the traveler himself. That is a tremendous liability; 
 it is a liability fixed upon the innkeeper by the fact that he 
 has taken the goods in ; and by law he has a lien upon them 
 
 349 
 
§ 379.] INNKEEPEES — BOAEDING-HOUSE KEEPEKS. [PAET III. 
 
 for the expense of keeping them as well as for the cost of the 
 food and entertainment of the traveler. By law that lien can 
 be enforced, not only against the person who has brought the 
 goods into the inn, but against the real and true owner of them. 
 That has been the law for two or three hundred years; but 
 to-day some expressions used by judges, and some questions — 
 immaterial, as it seems to me — which have been left to juries, 
 are relied on to establish that if the innkeeper knows that the 
 goods are not the goods of the person who brings them to the 
 inn, he may refuse to take them in; or, if he does take them 
 in, he has no lien upon them. One cannot help asking, "What 
 is this liability supposed to be if he does take in goods under 
 such circumstances ? It must be borne in mind that goods 
 brought into an inn are not exclusively in the possession of the 
 innkeeper; the person who brings them may deal with them; 
 he may take them out of a box in a room or passage without 
 the knowledge of the innkeeper, though the latter is bound to 
 see that no one interferes with them. Now, is there any de- 
 cided case in which it has been held that, although goods have 
 been brought to an inn as the luggage of the traveler and re- 
 ceived as such by the innkeeper, he has no lien upon them if 
 he knows that they are not the goods of the traveler? There 
 is not one such case to be found in the books." 
 
 In the case of Gordon v. Silver^ the court say: " By the com- 
 mon law of England every person who keeps a common inn is 
 under an obligation to receive and afford proper entertainment 
 to every one who offers himself as a guest, if there be sufficient 
 room for him in the inn, and no good reason for refusing him. 
 The innkeeper is under an obligation to keep the goods of a 
 guest received into the inn safely and securely, and can be sued 
 and made liable in damages if he fails in this respect. As a 
 compensation for the burden thus imposed upon him, the law 
 has given him a lien upon the goods of the guest until he dis- 
 charges the expenses of his lodging and food. If the guest 
 has brought goods to the inn to which he has no title, this will 
 not deprive the innkeeper of his lien, because he is obliged to 
 receive the guest without inquiries as to his title. It seems, 
 therefore, that the lien is commensurate with the obligation to 
 receive the guests and to keep safely and securely his goods. 
 
 iL. E. 25 Q. B. (1890), 491, 493. 
 350 
 
OH. IT.J COMPENSATION AND LIEN OF INNKEEPEE. [§ 379. 
 
 The right of lien of an innkeeper depends upon the fact that 
 the goods came into his possession in his character of inn- 
 keeper, as belonging to a guest." 
 
 Other English cases might be cited ; and there seems to be 
 no variation as to the holding of the English courts. Ameri- 
 can courts have also followed the English rule. 
 
 In an early case, Grinnell v. Gook^ a !New York case, the 
 court say: "The innkeeper is bound to receive and entertain 
 travelers and is answerable for the goods of the guest, although 
 they may be stolen or otherwise lost without any fault on his 
 part. Like a common carrier he is an insurer of the property, 
 and nothing but the act of God or the public enemy would ex- 
 cuse a loss. On account of this extraordinary liability the law 
 gives the innkeeper a lien upon the goods of the guest for the 
 satisfaction of his reasonable charges. It was once held that he 
 might detain the person of the guest, but that doctrine is now 
 exploded, and the lien is confined to the goods. The inquiry 
 then is whether the plaintiff received and kept the horses as 
 an innkeeper. In other words, was he bound to receive and 
 take care of them, and would he have been answerable for the 
 loss if the horses had been stolen without any negligence on 
 his part ? The lien and the liability must stand or fall to- 
 gether. Innkeepers cannot claim the one with any just expec- 
 tation of escaping the other." 
 
 And in a Minnesota case. Singer Mfg. Go. v. Miller,^ it seems 
 to have been conceded by counsel without argument that this 
 was the prevailing rule. The court say: "The plaintiff's 
 counsel does not seriously contest the proposition that the inn- 
 keeper may have such lien on the goods in the possession of 
 his guest infra hospitium, though they belong to a third per- 
 son, provided the innkeeper has no notice of that fact. If the 
 innkeeper's liability would attach in case the sewing-machine 
 was lost or stolen, it would seem but just to hold that his lien 
 attaches whenever there is a corresponding liability." 
 
 The supreme court of Wisconsin, without opposition of coun- 
 sel, seems to concede the English rule, but in the case cited the 
 property was lawfully in the possession of the guest as the 
 agent and traveling salesman of the owner.' 
 
 13 Hill (N. Y.), 485,488. s Manning v. Hollenbeok, 37 Wis. 
 
 2 52 Minn. 516, 518. 202. A most extreme case may be 
 
 351 
 
§ 379.] INNKEEPERS — BOAEDING-HO0SE KEEPERS. [pAET III. 
 
 In Oregon, the court, in Cook v. Kane^ declare this to be the 
 common-law rule; that it is not restricted to the ordinary bag- 
 gage or luggage of the guest. The court say: "Whatever con- 
 troversy may exist in the judicial mind as to the true measure 
 of the innkeeper's responsibility, it cannot be denied that his 
 liability for the loss of the goods of his guest is extraordinary 
 and exceptional. Compelled to afford entertainment to whom- 
 soever may apply and behave with decency, the law as an in- 
 demnity for the extraordinary liabilities which it imposes has 
 clothed the innkeeper with extraordinary privileges. It gives 
 him as a security for unpaid charges a lien upon the property 
 of his guest, and upon the goods put by the guest into his pos- 
 session. Jv^or is the lien confined to property only owned by 
 the guest, but it will attach to the property of third persons 
 for whom the guest is bailee, provided only he received the 
 property on the faith of the innkeeping relation. But the lien 
 will not attach if the innkeeper knew the property taken in 
 his custody was not owned by his guest, nor had no right to 
 deposit it as bailee or otherwise, except, perhaps, some proper 
 charge incurred against the specific chattels." 
 
 In this case, however, there seems to be some comfort and 
 good reasoning in the dissenting opinion by Judge Thayer, 
 who, at page 491, says: "Upon the main question in the case 
 there is some doubt in view of the authorities upon the subject, 
 though upon a common-sense view there would not seem to be 
 any. That the man could pledge the appellant's property for 
 his own hotel bill, or in any way subject it to the payment 
 thereof, would shock all sense of property right. Respondent's 
 counsel, however, have cited numerous cases where such a lien 
 has attached to the property of a third person, and I have no 
 doubt that such lien will in many cases attach to the property 
 taken by the guest to the inn at which he obtains accommoda- 
 tion, though he is not the owner of it. But in such cases it 
 seems to me the property must derive some special benefit or 
 
 found in Black v. Brennau, 5 Dana owner; and in that case the court al- 
 
 (Ky.), 311, where the court held that lowed the property to be sold and 
 
 property brought within the inn by the amount received to be applied 
 
 a guest, which he had stolen, would upon the innkeeper's claim, 
 be subject to the innkeeper's lien, 1 13 Oreg. 483. 
 even though claimed by the true 
 
 358 
 
CH. IV.j COMPENSATION AND LIEN OF INNKEEPEE. [§§ 380, 381. 
 
 else the owner must have intrusted it to a party under circum- 
 stances from which he could reasonably have concluded that 
 the party wonld become the guest of an inn and take the prop- 
 erty with him there as his own, and I do not think the rule 
 should extend further than this." And in Domestio Sewing 
 Machine Co. v. Walters ' the court has broken away from this 
 English rule and based an opinion somewhat upon reason,, 
 holding that the innkeeper has no lien on the goods in pos- 
 session of his guest as against the true owner, unless there 
 be charges upon the specific article on which the lien is claimed. 
 
 § 380. . The further consideration of the cases and the 
 
 law of the subject logically divides itself into three distinct 
 classes, namely: 
 
 (1) "Where the guest in possession of the property is the serv- 
 ant, agent, or bailee of the owner. 
 
 (2) "Where the property in possession of the guest is animate. 
 
 (3) "Where the guest in possession of the property is a wrong- 
 doer in respect to it, having obtained possession of it without 
 the consent of the owner — a trespasser or a thief. 
 
 § 381. The guest a servant, agent, or bailee of the owner. 
 "Where the guest is a servant, agent, or bailee of the owner of 
 the property, and engaged in the business of the owner — as, 
 for example, a traveling salesman, — • and carries the goods into 
 the ifln, and in the course of the business of his principal the 
 property is in the care and custody of the innkeeper in his inn- 
 keeping relation, his right to have the lien attach to secure his 
 compensation would seem to rest upon good legal reasoning; 
 for if the guest is a servant of the owner, and the relation of 
 innkeeper and guest is created at a time when the servant is 
 engaged in the service of the owner, or at a time when a bailee 
 is pursuing the object of the bailment for the benefit of the 
 owner, the owner knowing the facts in such cases, it might be 
 said that the owner impliedly consented that his property should 
 be subjected to the lien of the innkeeper in case his compensa- 
 tion was not paid, for such a situation might be well said to be 
 an incident to the relation into which the owner has entered. 
 Very many of the cases involve such a state of facts.^ 
 
 150 Ga. 573; Wycoflf v. Southern L. R. (1895), 3 Q. B. Div. 501, was one 
 Hotel Co., 34 Mo. App. 382. of a commercial traveler employed 
 
 * The case of Robins & Co. v. Gray, by a firm who dealt in sewing ma- 
 28 358 
 
§g 382-3.J INNKEBPEES BOAEDING-HOUSE KEEPEES. [PAET III. 
 
 § 382. Where the property is animate. — There is greater 
 reason, perhaps, for giving to the innkeeper a lien upon animate 
 property, such as horses or other animals, which are taken to 
 the inn by the agent or servant of the owner in the transac- 
 tion of and in the course of business for the owner and left with 
 the innkeeper in his inn keeping relation; for in such case the 
 subject of the lien must have its keeping and care, and there is 
 a direct benefit derived therefrom by the owner of the prop- 
 erty, and the lien would no doubt attach. 
 
 § 383. Where the guest has wrongfully possessed himself 
 of the property. — • But where the guest has wrongfully pos- 
 sessed himself of the property, it would do violence to every 
 principle of the rights of ownership of property to allow a Jien 
 to attach for the keep and entertainment of the guest at the 
 inn, or for keep of the property whether animate or inanimate. 
 As, for example, in case of stolen property, how can it be said 
 that, consistently with the rights of ownership of property, a 
 thief can steal and carry away the property of another, and 
 although he has no title whatever that can be asserted against 
 the rightful owner, yet he can by taking it to an hotel, and 
 himself becoming a guest and failing to pay the compensation 
 due the hotel keeper, confer upon the innkeeper a lien upon the 
 property paramount to that of the absolute owner? Such a doc- 
 trine would violate every principle of right and justice and the 
 laws governing the title to property. 
 
 What becomes of that legal right which protects every man 
 in the enjoyment of his own — that he may retake it wherever 
 he may find it if he has been feloniously deprived of it? It is 
 hardly an answer to say that because the innkeeper is by law 
 compelled to receive a guest who comes to his inn, if he is a 
 proper person and he has room and can take care of his bag- 
 gage and property brought within the inn, that he is entitled 
 
 chines. He stopped at the inn, and ceived them as the baggage of the 
 while there machines were sent to traveler, who subsequently left them 
 him by his employers, and in the in the inn without paying his bill for 
 ordinary course of business, for the board and lodging. So in the case of 
 purpose of selling them to customers Manning v. HoUenbeck, 37 Wis. 203. 
 in the neighborhood. Before the Tliis was a case of a commercial trav- 
 goods were so sent the innkeeper had eler, a guest at the inn, and the prop- 
 express notice that they were the erty was a trunk of samples belong- 
 property of the employer, but he re- ing to his principal 
 
 354 
 
CH. IV.] COMPENSATION AND LIEN OF INKKEJiPEE, [§ 383. 
 
 to a lien upon the property he brings into the inn; for in this 
 case it would be paramount to holding that he is entitled be- 
 cause of this to deprive a legal owner of his title to property 
 which has been stolen by the guest. In connection with this 
 contention it should be remembered that the innkeeper is not 
 compelled to receive a guest and render service to him as an 
 innkeeper and depend upon receiving compensation therefor 
 when the guest shall leave his house; he may insist upon his 
 legal right that the guest pay for the entertainment in advance. 
 So it is not a case where the innkeeper's only relief is his right 
 to a lien upon the property which the guest brings into the 
 inn. In discussing this matter it would seem that a number of 
 the courts hav& blindly followed the earlier English cases, 
 without discussing the reason of the rule which they adopted ; 
 but adopting it rather by way of following adjudicated cases 
 than by the exercise of good judgment-^ 
 
 When we stop to consider that builded into that great 
 fundamental law of the land, the constitution, is the assurance 
 to every citizen that he shall not be deprived of his property 
 without " due process of law," and that this bulwark of right 
 cannot be set aside, altered or changed, either generally or 
 specially, by courts or executive officers, or by legislatures 
 themselves, the rule under discussion and contended for by 
 some of the English courts would seem to be utterly antago- 
 nistic to the rights of propertj^ vouchsafed to every American 
 citizen. We are therefore, because of these observations, con- 
 strained to say that the law in this country will not give to 
 the innkeeper a lien for his compensation upon the property 
 of third persons brought by the guest into the inn, except there 
 exists a relation between the guest and owner like that of 
 master and servant, principal and agent, or possibly bailor and 
 bailee, and that at the time the guest be engaged in the use of 
 the property in the carrying out of the particular relation; and 
 that this applies as well to animate as inanimate property. 
 
 We are aware that this English rule has been quite largely 
 adopted by the courts of this country, but it seems to us that 
 the arguments and reasoning of the court in arriving at a con- 
 clusion that even property which has been stolen and taken to 
 an inn by a guest can be subjected to a lien of a landlord is 
 
 1 Domestic, etc. Co. v. Waiters, 50 Ga. 573. 
 355 
 
§ 383.] INNKEEPEES BOARDING HOUSE KEEPEES. [PAET III. 
 
 not in accord with our American system; it certainly must be 
 held to run counter to that provision of the constitution to 
 which we have already called attention. 
 
 The court of appeals in the state of Missouri have written 
 somewhat vigorously upon this proposition. The opinion is by 
 Mr. Justice Thompson. He says: "JSTor are we prepared to 
 agree with those courts wbich have found a plain principle of 
 justice in a rule of law by which one man's property is confis- 
 cated to pay another man's debts. It is, to say the least, 
 doubtful whether the extraordinary liability which the com- 
 mon law imposed upon the innkeeper in respect of goods 
 brought to his inn by his guest furnishes a good reason for 
 such a rule. It is also doubtful whether such a rule is not in 
 conflict with the spirit of those guaranties of the right of pri- 
 vate property which are embodied in American constitutions. 
 It would be beyond the power of the legislature to pass a law 
 under which the property of one man should be arbitrarily taken 
 from him and given to another man. If the legislature could 
 not pass such a law, we are not prepared to sanction a course 
 of reasoning by which the conclusion is arrived at that the 
 legislature intended to preserve such a rule of common law, 
 by enacting a statute, the terms of which, read in accordance 
 with their sense, import the contrary. Again, the liability of 
 a common carrier at common law is precisely that of an inn- 
 keeper. He is liable for the loss or damage of the goods com- 
 mitted to him for carriage happening fi'om every other cause 
 except the act of God or the public enemy. Both the liabihty 
 of the carrier and that of the innkeeper were grounded at com- 
 mon law upon what was called the 'custom of the realm.' 
 They were co-extensive with each other, had their origin in 
 the same source, and rested upon the same considerations of 
 public policy. And yet modern American courts have not 
 hesitated to declare that a common carrier has no lien for the 
 carriage of goods, which he has innocently received from a 
 wrong-doer, without the consent of the owner, express or im- 
 plied. Upon the whole, we are satisfied that the lien of an 
 hotel or innkeeper does not exist in this state in such a case 
 as the present." ^ 
 
 iWyckofE V. Southern Hotel Co., 1 Doug. (Mich.) 1: Robinson v. Baken 
 24 Mo. App. 382; Fitch v. Newberry, 5 Cusli. 137; Stevens v. Bostou & 
 
 356 
 
OH. IV.J COMPENSATION AND LIEN OF INNKEEPEE, [§§ 384, 385. 
 
 §384. The lien of the innkeeper fixed by statute. — In 
 
 almost all of the states the lien of the hotel keeper upon the 
 goods and property of the guest for his compensation is fixed 
 and regulated by statute, and by statute the procedure for fore- 
 closing the lien is also provided. At common law the inn- 
 keeper could not sell the property and thus realize the amount of 
 his compensation except by a proceeding in chancery, but now 
 the statutes of the states generally provide for a sale from 
 which an amount may be realized to satisfy the expenses of 
 the sale, the amount of compensation due the innkeeper, if 
 sufficient is obtained, and the balance, if any, be returned to 
 the owner. 
 
 § 385. The lien lost or waived. — The lien of the innkeeper 
 may be lost or waived in the several ways already discussed. 
 
 (1) By a tender to the innkeeper of his proper charges. 
 
 (2) By the innkeeper, upon demand of the property, placing 
 his refusal to deliver it upon some other grounds than that of 
 the non-payment of his compensation and his lien upon the 
 goods.^ 
 
 (3) By an agreement to give credit to the guest, because such 
 an agreement would be inconsistent with the enforcement of 
 a lien.' 
 
 In Stodda/rd Kfg. Go. v. Huntley'^ the court say: " The oper- 
 ation of a lien is to place the property in pledge for the pay- 
 ment of the debt; and where the party agrees to give time for 
 payment, or agrees to receive payment in a particular mode 
 inconsistent with the existence of such a pledge, it is evidence, 
 if nothing appears to the contrary, that he did not intend to 
 rely upon the pledge of the goods in relation to which the debt 
 arose to secure the payment." 
 
 (4) By delivery of the goods to a third party with an agree- 
 ment that the lien is to continue. This would discharge the 
 lien unless the third party is under the control of the inn- 
 keeper. If such party were his servant or his agent in the 
 transaction ef the particular business, in such case it would 
 not be a release of the possession of the property and the lien 
 
 W. E. Corp., 8 Gray, 263; Clark v. 'McMasters v. Merrick, 41 Mich. 
 
 Lowell, etc. R. Co., 9 Gray, 331. 505. 
 
 1 Ante, §73. 48N. H.441. 
 
 2 Hamilton v.McNulty, 145 Mass. 20. 
 
 857 
 
§§ 386-7.] INNKEEPKES — BOAEDING-HOUSE KEEPERS. [PAET III. 
 
 would not be waived ; but if it were a person over whom the 
 Innkeeper had no control, it would be a waiver of the lien. 
 Possession is essential to the existence of the lien, and when it 
 is voluntarily surrendered the lien must necessarily fail. 
 
 (5) A wrongful sale or pledge by the innkeeper would destroy 
 the lien, but a lien acquired by a partnership would not be lost 
 by a dissolution of the partnership and an assignment of the 
 interest of one of the partners to the other. 
 
 § 386. Cannot be revived. — If the innkeeper once parts with 
 the possession of the property voluntarily, or loses or waives 
 the lien in anj' of the ways we have noticed, the lien can- 
 not be revived by again assuming possession of it, unless he has 
 been deprived of the lien by fraud or misrepresentation of the 
 guest and has repossessed himself of the property before there 
 are any intervening rights, as that of innocent purchasers, 
 mortgagees or assignees.^ 
 
 § 387. Boarding-housekeeper. — The right of lien is not ex- 
 tended to boarding-house keepers. There are, however, stat- 
 utes in force in many of the states which confer upon boarding- 
 house keepers rights which are substantially the same as the 
 rights of innkeepers.^ 
 
 1 Robinson v. Larrebee, 63 Me. 116; Hursh v. Buyers, 39 Mo. 469; Cross v. 
 Manning v. Hollenbeck, 37 Wis. 203; Wilkins, 43 N. H. 332; Nichols v. Hol- 
 Hickman v. Thomas, 16 Ala. 606. liday. 37 Wis. 406; Mills v. Shirley, 
 
 2Polleot V. Landis, 36 Iowa, 651; 110 Mass. 158. 
 
 358 
 
PAET FOURTH 
 POSTOFFICE DEPAKTMENT 
 
 CHAPTER I. 
 
 POSTAL SERVICE. 
 
 § 388. Liability of postoffice depart- 1 § 390. Liability. 
 
 ment. I 391. Carriers of malL 
 
 389. Postmasters. " 
 
 § 388. Liability of postoffice department. — One of the ex- 
 ceptional bailments recognized by the law is that of receiving, 
 carrying and delivering the mail. The mail service of the 
 country is intrusted to the postoffice department of the govern- 
 ment; it is under its general supervision and control; and while 
 in the performance of the duties connected with the mail service, 
 not only letters and packages that may be properly denominated 
 as mail matter, but large quantities of merchandise, are re- 
 ceived and carried. But it can hardly be said that the relation 
 of a common carrier of goods exists ; it is more in the nature 
 of a bailment for hire. While there is a small sum paid for 
 the carriage by way of postage, it is not an amount paid for 
 the services, nor considered as adequate or reasonable, but 
 rather an amount paid to the government to aid and support 
 the whole system of postal service; it is a dealing with the 
 government whose agencies are employed to do the particular 
 service. 
 
 While the postoffice department in a way is responsible for 
 the services and the property carried, it cannot be sued by the 
 owner of the mail package, even if it were lost, or failed to be 
 delivered, because it is a department of the government that 
 is engaged in the service and cannot be sued without its con- 
 sent. It is the government itself that undertakes the carrying 
 of the mail through its agents and servants, and any miscon- 
 duct or failure of performance of duty on its part must be cor- 
 
 359 
 
§ 389.] POSTAL SEEVIOE. [PAET IT. 
 
 rected by an investigation of that department carried on by 
 the government or its representatives. 
 
 § 389. Postmasters. — Postmasters, their assistants and 
 clerks, appointed and sworn as required by law, are public of- 
 ficers through whom the service of receiving and forwarding 
 the mails is more directly carried on ; for any dereliction in 
 duty they are responsible to the government, and liable upon 
 their bonds executed as required by the postal laws. But while 
 they are under this direct liability to the general government, 
 there is no doubt a liability to the individual who sends, or is 
 entitled to receive, mail through the particular office over 
 which these officers are installed. They owe to the public and 
 to the government a duty to use at least ordinary diligence in 
 receiving and forwarding or properly delivering the mail. 
 The great importance of the business with which they are in- 
 trusted enhances that duty; through these officers, as is well 
 known and understood, are sent not only important communi- 
 cations requiring care and diligence in their protection and 
 proper delivery, but often property and money of consid- 
 erable amount and value. Every person's mail is sacred to 
 him, and he is entitled to its first possession and perusal. This 
 right and individual privilege is vouchsafed to him by the con- 
 stitution and statutes of the United States, and so the general 
 department of government cannot be held liable for the reasons 
 mentioned. "Whenever the loss, or breach of duty resulting in 
 loss, can be traced to one of these officers of the department, 
 the postmaster, his assistants or clerks commissioned by the 
 government, or to their servants or agents, the individual of- 
 ficer guilty of the negligence or breach of duty may be held 
 liable for the damages resulting therefrom. In Keenan v. 
 SoutJiLOorth.^ Mr. Justice Grey, in rendering the opinion, said: 
 " The law is well settled in England and America that the post- 
 master-general, the deputy postmaster, his assistants and clerks 
 appointed and sworn as required by law, are public oiEcers, 
 each of whom is responsible for his own negligence only, and 
 not for that of any of the others, although selected by him and 
 subject to his rules." 
 
 1110 Mass. 474, 14 Am. Rep. 613; 243; Schuler v. Lynoh,8 Watts(Pa.), 
 Lane v. Cotton, 1 Ld. Raym. 646; 453. 
 Dunlop V. Monroe, 7 CrancU (U. S.)> 
 
 360 
 
OH. I.j POSTAL SERVICE. [§ 390. 
 
 § 390. Liability .^ From what has already been said 
 
 it will be noticed that the liability of the postmaster, whenever 
 he can be held liable for the loss of mail or mail matter, must 
 rest entirely upon his individual negligence, and the recovery 
 is had upon the implied contract upon his part to perform his 
 duty with at least ordinary diligence. But it has been held 
 that the plaintiff in order to recover is not bound to prove 
 •some particular act of negligence in relation to the letter or 
 the package, and that the loss was the direct consequence of 
 ■that particular negligence, but that any general proof of neg- 
 ligence tending to show that the loss was occasioned thereby, 
 which satisfies the jury that it was so occasioned, is sufficient 
 "to sustain the issue for the plaintiff.^ 
 
 In Schroyer v. Zynch^ the court say: "Deputy postmasters 
 have nothing to do with the carrjnng of the mail by means 
 of which letters, packets, etc., are conveyed and transmitted 
 ^ihroughout the Union. . . . And seeing he has neither the 
 appointment nor the control of those who do carry the mail, it 
 would seem, therefore, impossible that he should be made liable 
 as a common carrier, or for any losses or injuries saving those 
 arising from ordinary neglect on his part. Ordinary neglect, 
 when he has no assistant to attend to and perform the duties 
 of the office, may consist in his not attending to the perform- 
 ance of the same himself in person with reasonable vigilance 
 and care; or, where he has assistants and in his not exercising 
 that care and diligence towards them in the performance of the 
 duties assigned to them, which every person of common pru- 
 dence and capable of governing a family takes of his own con- 
 oerns; and for every loss occasioned by the negligence of the 
 deputy postmaster in this respect, I apprehend that he would 
 be held responsible though the loss should be produced imme- 
 diately by an accident, or a force that could not be avoided or 
 resisted. Beyond this, however, as 1 conceive, the responsibil- 
 ity of a deputy postmaster does not extend." 
 
 In considering and summing up the English authorities upon 
 this subject, the court further say: "The ground of these. de- 
 cisions seems to be that the postoffice establishment is to be 
 •considered as an engine of the government created by act of 
 
 1 Christie v. Smith, 33 Vt. 663 ; Dan- 2 8 Watts (Pa.), 453. 
 forth V. Grant, 14 Vt. 283. 
 
 861 
 
§ 391. J POSTOfFICB DEPAETMENT. [PAET IV. 
 
 parliament for the purpose of revenue and police, and that the 
 persons employed therein, being appointed to that end by the 
 government, have no contracts v^ith individuals interested in 
 their services, either express or implied, which would render 
 them liable to the latter for losses occasioned by the negligence 
 of others, or for any losses sustained other than those arising 
 from their own default or neglect of duty; but for losses of 
 this latter description it is clearly settled that each postmaster 
 is liable for his own neglect or delinquency."' 
 
 In Dunlap v. Monroe'^ it was held that, in order to make a 
 postmaster liable for negligence, it must appear that the loss 
 or injury sustained by the plaintiff was the consequence of 
 the negligence, and that in order to make out such negligence 
 it is competent to give in evidence the negligence of his as- 
 sistant. 
 
 § 391. Carriers of mail. — Persons carrying the mail 
 
 upon contract or appointment are employed by the depart 
 nient of the government having supervision of the mails, and 
 are answerable to the postoffice department for any breach of 
 duty of which they may be guilty, upon their bond, which in 
 general must be given and which recites their duties; but out- 
 side of this liability to this department of the general govern- 
 ment is the same liability to the public and the individual that 
 has been mentioned and discussed in what has been said of post- 
 masters. The mail carrier may be made liable to the individ- 
 ual for the loss of letters or packages whenever it can be proven 
 that the loss was the result of his negligence. Like a post- 
 master he is bound to exercise at least ordinary care in pre- 
 serving and carrying the mail that is intrusted to his care and 
 keeping.'' 
 
 • Browning v. Goodchild, 3 Wils. a common carrier nor a private car- 
 
 443; Stock v. Harris, 3 Wils. 449, 450; rier, and is not liable to the owner for 
 
 Whitfield V. La Dispenoer, Cowp.Tlio; money stolen from the mails by his 
 
 2 Kent's Com. 610; Story on Bailm., subordinates; and his promissory 
 
 303. note given therefor is without liabil- 
 
 2 7 Cranch (U. S.), 242. ity as between the parties. Foster v. 
 
 3 One who contracts to carry the Metts, 55 Miss. 77, 30 Am. Eep. 504. 
 mails for the government is neither 
 
 362 
 
PAET FIFTH 
 
 CARRIERS 
 
 CHAPTEK I. 
 
 CARRIERS — GENERALLY. 
 
 § 892. Definition. 
 
 393. As to the history of carriers. 
 
 394. The importance and scope of 
 
 the subject. 
 
 395. Carriers strictly a bailment re- 
 
 lation. 
 
 Carriers are of two kinds. 
 
 Private or special carriers. 
 
 Duties and liabilities of pri- 
 vate and special carriers. 
 
 The carriage of goods, or prop- 
 erty, or passengers for re- 
 ward. 
 
 396. 
 397. 
 
 399. 
 
 400. Increasing or diminishing lia- 
 
 bility by contract. 
 
 401. Can he diminish liability, 
 
 403. When excused from liability 
 
 if no contract. 
 
 403. Compensation and lien of the- 
 
 private carrier. 
 
 404. Lien. 
 
 405. Special or private carriers 
 
 without hire — Gratuitous- 
 service. 
 
 § 392. Definition. — A carrier is defined to be one who un- 
 dertakes to transport persons or property from place to place 
 either with or without reward. 
 
 § 393. As to the history of carriers. — It would no doubt 
 be interesting and perhaps profitable to trace the history of car- 
 riers from their small beginnings through the earlier and inter- 
 esting years of their grovrth; from the time when the business, 
 mainly consisted in transporting packages and light freight by 
 pack animals and lumbering vehicles drawn by cattle or slow 
 coach teams ; the coming into use of the early coach conveying 
 passengers, baggage and freight to and from the great metropo- 
 lis and other points, and notice the favor into which the busi- 
 ness grew ; to consider the history of transportation by water,, 
 and the development of that great trade which has united witK 
 inseparable bonds the interests of continents, kingdoms and 
 republics, and in a measure furnishing them their means of de- 
 
 363 
 
'§§ 394, 395.] CAEKIEES. [PAET T. 
 
 fense; the introduction into our own country of the more 
 .advanced systems of transportation by steamboats and rail- 
 roads, until the magnitude of the business embraced in the 
 carrier trade is almost beyond comprehension; but we are not 
 able to do so at this time, nor is it the object of this treatise; 
 we can only call attention to it by way of introduction. 
 
 §394. The importance and scope of the subject.— There 
 is no business carried on by men of these days that does not 
 touch upon and involve more or less the subject of carriers. 
 The rumbling- wheels of trucks, express wagons and omnibus 
 lines through the streets of our great cities, the immense docks, 
 elevators and freight depots within our seashore towns, the 
 ports of our great lakes piled high with freight, goods of all 
 descriptions and kinds, the palatial steamers transporting thou- 
 sands of passengers, all but speak to us of the immensity of the 
 •carrier trade ; for out from these ports go the great trunk lines 
 of railroads pushing their way into the great cities augmenting 
 their business ; into the smaller towns increasing their market 
 facilities; across the rich farms and prairies; through the rock- 
 bound ridges of the great mountain ranges, and beyond to the 
 coast of oceans, almost as a thing of life; holding within their 
 grasp the business destiny of nations; conveying the products 
 of a continent from the farthest northern boundaries to the 
 most extreme southern point; from the far east to the far west; 
 from every business point to the great markets of the world. 
 
 With the electric telegraph spark we speak, and the producer 
 of the west, by these carrier routes, hands his product of farm 
 and mine and manufactory to the producer and consumer of 
 the east, and he in turn on through wave and storm of ocean 
 to the markets and consumers of the old world. iS'or do steam- 
 ships and vessels and railroads compass entirely the carrier 
 trade. Added to these are the tens of thousands of smaller 
 carriers, transfer lines, expressmen, truckmen, even dcvn to 
 the httle fellow dressed in uniform and cap who delivers pack- 
 ages from house to house. Who can define and comprehend 
 the scope and importance of our subject? 
 
 § 395. Carriers strictly a bailment relation.— The carriage 
 of freight and baggage may be said to be strictly a bailment 
 relation and belongs generally to the mutual-benefit bailments, 
 though there may be gratuitous carrying of goods, or such a 
 
 364 
 
OH. I.] CAEEIEES GENEEALLT. [§§ 396, 397, 
 
 contract relation as will classify the business with almost any of 
 the several kinds of bailments. The goods to be carried are 
 generally put into the exclusive custody and control of the 
 carrier by the owner, or shipper, while being carried to their 
 destination and until delivered to the consignee. 
 
 § 396. Carriers are of two kinds. — Carriers may be said to 
 be of two kinds: (1) Private or special carriers, and (2) public 
 or common carriers ; and these two classes may be said to be 
 again classified as carriers by land and carriers by water. The 
 most important division, however, is that of private or special, 
 and public or common carriers. This subdivision becomes im- 
 portant by way of fixing the liability and duty of the car- 
 rier, whether the relation belongs to the exceptional bailment 
 to which attaches the exceptional or extraordinary liability ,^ 
 or to that class of carriers which are simply bailees of the 
 property or goods carried. 
 
 §397. (1) Private or special carriers. — This class of car- 
 riers is just what the name imports — private or special carriers. 
 A private or special carrier may be said to be one who agrees to 
 transport goods, property or persons by special agreement or 
 contract from place to place, either for hire or gratuitously. 
 As, for example, the owner of a team and wagon, in the small 
 town away from the railroad, contracts with the merchant of 
 his village to haul his goods upon a particular occasion from 
 the neighboring railroad town, for which he is to receive 
 a consideration; the farmer agrees to carry his neighbor's 
 wheat from his farm to the market town, for which he 
 is to receive a compensation, or gratuitously renders the 
 service ; the friend or neighbor who is going upon a journey 
 to a neighboring city, for the accommodation of his friend 
 carries to the creditor of his friend an amount of money which 
 he agrees to pay upon his indebtedness, and to return to him 
 a receipt therefor, this being done either gratuitously or for a 
 compensation. Other examples will occur to the reader. It 
 is the performing of the service of carrying the goods or the 
 property, or even the carrying of the person upon the special 
 occasion, and not the carriage of goods or property or persons 
 by one holding himself out to the public as being engaged in 
 that business for hire. The distinction between the private or 
 
 365 
 
§§ 398, 399.] CAEEiEES. [part v. 
 
 special carrier and the public or common carrier will be more 
 clearly observed hereafter. 
 
 This class of carriers does not belong to the exceptional bail- 
 ment class. They are not bound to receive and carry the goods 
 of all Avho apply to them to do that service, but they may se- 
 lect their customers, fix their compensation, and the time the 
 service is to be performed. They are in this respect, as will 
 be noticed, somewhat analogous to boarding-house keepers; 
 they are in no sense public servants, but are engaged in a pri- 
 vate business. Should they desire to do so, however, there is 
 no doubt but that the private or special carrier could by con- 
 tract assume and become liable to perform the duties of a 
 common or public carrier, and in such case the extraordinary 
 liability would attach to him. 
 
 § 398. Duties and liabilities of private and special carriers. 
 The consideration of the question of the duties and liabilities 
 of the special or private carrier suggests a further classifica- 
 tion, namely, (1) private or special carriers for hire or reward, 
 (2) private or special carriers without hire — gratuitous serv- 
 ice. 
 
 I. 
 
 § 399. The carriage of goods, or property, or passengers 
 for reward. — The private or special carrier who carries goods, 
 property or passengers for hire or reward belongs not to the 
 class of carriers, as we shall see, known as common or public 
 carriers, but to that class which has been designated as bailees 
 for hire, and to that class of bailments known as mutual-bene- 
 fit bailments. It perhaps approximates to the classification 
 already discussed among the looatio bailments — "work and 
 labor upon the thing." The liability, therefore, would be the 
 ordinary liability that applies where the bailment is for the 
 benefit of both parties; in other words, the private or special 
 carrier is bound to exercise ordinary diligence in carrying 
 the goods and delivering them to the consignee, and is liable 
 for ordinary negligence. As a private carrier it has been said 
 he is " bound to use ordinary care and diligence such as a rea- 
 sonably prudent man would exercise'in the conduct of his own 
 business, or in the preservation of his own property."' 
 
 1 United States v. Power, 6 Mont. 271. 
 366 
 
CH. I.] CAEBIKES GENERALLY. [§ 400. 
 
 In. Samms V. Stewart^ it is said: "The general rule in ref- 
 erence to a bailee for hire — that he is only answerable for the 
 loss of the goods where he has been wanting in ordinary care 
 and diligence — is in most cases a reasonable and just one, and 
 is only departed from in the case of a common carrier on ac- 
 count of the peculiar relation that he has assumed to the com- 
 munity. Now we see no reason why the law applicable to a 
 common carrier should be applied to a farmer who makes a 
 personal application to a merchant for a load of goods, on his 
 return trip from market. The merchant has it in his power to 
 make such special bargain as he chooses, as to what shall be 
 the liability of the farmer in case the goods are lost. The 
 farmer has assumed no character to the community entitling 
 him to peculiar confidence, and the merchant is left, as in or- 
 dinary cases, to an inquiry as to his character and qualifica- 
 tions. Nor do we suppose it would make any difference how 
 many applications of this kind had been made by the party 
 thus carrying, or to how many different persons they may 
 have been made — they would still remain so many special and 
 individual transactions." The court in that case held that a 
 person occasionally carrying goods or property may be re- 
 sponsible in case of loss only as an ordinary bailee for hire, and 
 to excuse him from liability he need only show that he has 
 used ordinary care and diligence. 
 
 § 400. Increasing or diminishing liability by contract. — 
 The private carrier may by contract increase his liability even 
 to the extent of that of a common carrier, but the increasing 
 of liability for loss of or injury to the goods carried to the extent 
 of that of an insurer of the property, or that of a common car-^ 
 rier, will not make him a common carrier or change his rela- 
 tions to the public. To do this he would take upon himself all 
 the duties as to receiving goods and carrying the same as well 
 as the extraordinary liability; in fact he would entirely lose 
 his identity as a private carrier and become a common or pub- 
 lic carrier. For example, the private carrier may by contract 
 
 120 Ohio, 70-73; Story on Bail- ship, the owner having no right to 
 
 ments, sec. 399; White v. Bascom, take goods for any other person, the 
 
 28 Vt. 268. In Lamb v. Parkman owner is not a common carrier, but 
 
 (Dist Mass.), 1 Spr. 343, it was held a bailee to transport for hire, and as 
 
 that under a charter-party giving to such is bound for ordinary care, 
 the hirer the whole capacity of the 
 
 367 
 
§§ 401-403.] CAEEIEES. [PAET T^ 
 
 warrant the delivery of goods intrusted to him for carriage, 
 and thus take upon himself the extraordinary liability rather 
 than that of a bailee of whom is required but ordinary dili- 
 gence. 
 
 §401. Can he diminish liability. — There seems to 
 
 be no doubt that a common carrier may also, by contract,, 
 diminish his liability; but the rule applies to him as toother 
 bailees — he cannot by contract excuse himself for fraud or 
 for gross negligence. The rule is somewhat different in the 
 case of a private carrier, and it may be said that where fraud 
 or public policy is not involved, the private carrier could con- 
 tract that he shall not be liable for any loss or injury; but this 
 can only be in cases where the whole matter is free from fraud, 
 or, in other words, it must be a good-faith contract. For ex- 
 ample, a merchant hires a farmer to haul his goods from the 
 railroad to his country store; the farmer may agree to haul 
 them, but may stipulate that he will not be responsible for any 
 damage that may result to them from whatever cause the dam- 
 age may come — as by the breaking down of his vehicle, or for 
 any other reason; but if his contract should be that he would 
 not be liable for loss by theft, and he himself should steal the 
 property, or if he should have an alliance with others who did, 
 in such case he would be held for the value of the property. 
 So the matter rests entirely upon the question of good faith 
 and public policy. 
 
 §402. When excused from liability if no contract.— A 
 private carrier, being much like a bailee of the class known 
 as locatio bailees, — bailees who undertake to do something 
 upon the thing bailed, — the law seems to hold them to the 
 same liability; they are excused from liability where the loss 
 or injur3r occurs by reason of the act of God, the public enemy, 
 or inevitable accident, as for accidental fire, or for loss by rob- 
 bery, or burglary, or larceny; but in all these cases, as in cases 
 already discussed, the carrier must be able to prove that in the 
 exercise of ordinary diligence the loss could not have been 
 avoided. lie must not expose the property to any of these 
 dangers if by ordinary diligence he can avoid it. 
 
 § 403. Compensation and lien of the private carrier.— 
 The private carrier may regulate his compensation and charges- 
 by contract for the carrying of the goods; but if he does not 
 
 368 
 
CH. I.J CAEEIEES — GENEEALLT. [§ 40i. 
 
 do so, and there is no stipulation as to compensation, he is en- 
 titled to a reasonable compensation, to be determined from all 
 of the facts, and to be proven by the testimony of competent 
 "witnesses as to what such service under just such circumstances 
 would be reasonably worth. 
 
 § 404. Lien. — It would seem from the weight of author- 
 ity that the private carrier has no right to a common-law lien 
 upon the goods carried for his compensation. Man}' of the 
 writers upon this subject urge that there is no reason why he 
 should not have such a lien, and that reasoning by analogy he 
 certainly should have one. It is argued' that the same reasons 
 exist, for example, that obtain in the case of the warehouseman, 
 and some have urged that the same reason obtains as in the 
 case of a bailee who benefits the property by his service and 
 materials. 
 
 In Hutchinson on Carriers it is said : " It seems not to be 
 well settled whether a private carrier for hire has a lien upon 
 the goods in respect to which he performs the service or not. 
 There would seem to be no satisfactory reason why he should 
 not have the same right to retain the goods until his charges 
 for their carriage are. paid; as the warehouseman, the wharf- 
 inger or the artisan who by his labor and skill has added to 
 their value. The general rule is, where a bailee of a chattel 
 has increased its value by his labor, he has a specific lien upon 
 it for his compensation, which means no more than the right to 
 retain it until his charges for the particular services are paid, 
 but not for a general balance of account." ^ Jones on Liens 
 states the rule to be that the private carrier has no lien for his 
 services unless he specially reserves it by agreement, but urges 
 that there seems to be no reason why he should not have such 
 lien.^ It would seem, however, to be somewhat questionable 
 whether the criticisms made by these authors are based upon 
 sound reasoning. The lien given to the artisan who performs 
 labor upon the property and adds material by way of mak- 
 ing repairs is given upon the theory that he has bettered 
 
 1 Hutchinson, Carriers, sec. 40. sion say: "The compensation of the 
 
 2 Jones on Liens, sec. 376; Biddle, common carrier is assured to him by 
 Dean & Co. v. N. Y., L. E. & W. R. a lien upon the goods — aright which 
 Co., 1 Int. Com. 594^604 In this case is not enjoyed by a common carrier." 
 the Interstate Commerce Commis- 
 
 24 369 
 
§ 404:.] OAEEIEIiS. [PAET T. 
 
 the property. The innkeeper and common carrier are recoo'- 
 nized as being entitled to a lien because they are in a measure 
 public servants, and bound to perform services and furnish 
 entertainment for all who apply. And it is upon this theory 
 that their lien is given. IS^o such reason can be said to exist 
 in the case of the private carrier; his relation is one created 
 entirely by a contract of his own making in each particular in- 
 stance. He can make the contract and enter upon the service' 
 or he may refuse, as he pleases ; he may perform service to-day, 
 or this week, or next week, or next month, as he pleases, regu- 
 lating all by the particular contract. He may give credit for 
 the services he performs, or he may demand his payment 
 in advance, as he pleases. If the person who employs him, in 
 his judgment, is one who is liable not to compensate him, he 
 can provide for securing his compensation by the contract which 
 he makes for the carriage of the goods. But it is urged that 
 certainly the warehouseman should be no more entitled to a 
 lien for compensation than the private carrier; that he is not 
 bound to receive and store and care for the goods of all who 
 may apply, and that the storing of the property can hardly 
 be said to add benefit to it, as in case of the artisan. While 
 this is true, and while perhaps there can be no more reason 
 why the warehouseman should have a lien than that the private 
 carrier should be secured by lien, yet it seems that there is 
 quite a difference in the relation between a private carrier and 
 a warehouseman; certainly the warehouseman is dealing more 
 largely with the public. .Whereas the law may not compel him 
 to receive the goods of all who apply and store them and care 
 for them, he nevertheless, as a general rule, advertises and 
 asks patronage from the whole public. He builds immense 
 warehouses, and invites all who have goods to store, or grain 
 to put in the elevators, to bring it to his warehouse. He is thus 
 dealing with the public — dealing with those who apply; and 
 it seems to have been on this account that his right to a lien 
 for compensation is recogjiized. It would seem that there is a 
 difference between such cases and cases where one seeks out 
 the individual and makes with him a private contract, which 
 may vary as circumstances vary, as to price, as to the manner 
 of performing the contract, as to the time when it shall be per- 
 formed ; and so it would appear that the same reasoQ does not 
 
 370 
 
OH. I.] OAEEIERS — GENEEALLT. [§ 405. 
 
 exist in the case of the private carrier that exists even in the 
 case of the warehouseman for the giving of secarity for serv- 
 ices by a lien upon the property. 
 
 II. 
 § 405. Special or private carriers without hire — Gratu- 
 itous service. — Where the carrying of the goods is gratuitous, 
 the carrier being a bailee of the property intrusted to hira, it 
 would seem that the same rules as to liability must attach that 
 obtain in the case of bailments for the sole benefit of the bailor — 
 he would be held liable for gross negligence and required to 
 exercise only slight diligence. What is gross negligence or 
 slight diligence can only be determined by the circumstances 
 of each particular case. No general or fixed definition, as we 
 have seen, can be laid down; what would be ordinary dili- 
 gence in one case might be gross negligence in another. The 
 examples of special or private carriers without hire are numer- 
 ous, and no doubt the mere suggestion brings to mind very 
 many examples. A farmer who, for the accommodation of his 
 neighbor, takes into his wagon, while going to the market town, 
 bags of wheat to be left at the mill to be ground, or on return- 
 ing, without compensation but for mere accommodation, brings 
 for the miller flour which is to be delivered to the neighboring 
 farmer; or where the neighbor who is traveling to some 
 other city carries, without recompense, bonds to be delivered 
 to a broker to be sold, or money to be paid upon his neighbor's 
 debts, or any such like service of carrying goods or property, 
 or money, or bonds, simply for accommodation, — in such cases 
 there is no compensation; the sole benefit to be derived is de- 
 rived by the bailor — the one who intrusts the property to the 
 gratuitous carrier. If he receives compensation, as we have 
 seen, he must exercise ordinary diligence, but if he receives 
 no compensation he is not held to so high a degree as ordinary 
 diligence.' 
 
 1 Pender v. Robins, 6 Jones L. (N. that under such circumstances the 
 
 C.) 307. The captain of a vessel re- captain was liable only for gross neg- 
 
 ceived watches which he was to ligence. Colyar v. Taylor, 1 Cold, 
 
 carry for the owner and deliver gra- (Tenn.) 373, where it was held that 
 
 tuitously. He put them in his chest defendant was guilty of gross negli- 
 
 » in the cabin he occupied, and while gence and liable. Fay v. Steamer 
 
 he was asleep thieves broke in and New World, 1 Cal. 348. 
 stole the watches. The court held 
 
 371 
 
OHAPTEE 11. 
 
 PUBLIC OR COMMON CARRIERS. 
 
 406. 
 
 Definition. 
 
 § 416. 
 
 407. 
 
 First essential requisite — 
 
 417. 
 
 
 Tiie important and distin- 
 
 418. 
 
 
 guistiing essentials. 
 
 419. 
 
 408. 
 
 Second essential requisite — 
 
 
 
 Determinate of the relation. 
 
 420. 
 
 409. 
 
 Tlie t'-ue test. 
 
 431. 
 
 410. 
 
 Maj' limit the employment to 
 certain kinds of property. 
 
 423. 
 
 411. 
 
 Third essential requisite — 
 
 433. 
 
 
 Carriage must be for hire. 
 
 434. 
 
 412. 
 
 Carriers by water as well as 
 
 435. 
 
 
 by land. 
 
 436. 
 
 413. 
 
 Who are common carriers. 
 
 
 414 
 
 Tugs and tow-boats 
 
 437. 
 
 415. 
 
 Contrary holdings. 
 
 
 Ferry-boats. 
 
 Carriers by land. 
 
 Hackmen and omnibus men. 
 
 Truckmen, cartmen and 
 
 owners of wagons. 
 
 Street-car companies. 
 
 Express companies. 
 
 Fast-freight lines, dis- 
 patch companies, etc. 
 
 Transfer companies. 
 
 Railroad companies. 
 Receivers and trustees. 
 
 Not all railroad compa- 
 nies common carriers. 
 
 Who are not common car- 
 
 §406. Definition.^ The definition generally conceded to 
 be correct and more often adopted than any other is that of 
 Chief Justice Parker in the case of Dwight v. Brewster: ' "A 
 comnaon carrier is one who undertakes for hire or reward to 
 transport the goods of such as choose to employ him from 
 place to place." This definition is somewhat enlarged by 
 Judge Cooley in his work on Torts: "A common carrier is 
 one who regularly undertakes for hire, either on land or on 
 water, to carry goods, or goods and passengers, between differ- 
 ent places for such as may offer." Another definition that has 
 received commendation is one of an eminent jurist, as follows: 
 " Any man undertaking for hire to carry goods of all persons 
 indifferently." ^ From the accepted definitions of a common 
 carrier it may be said that there are, among others, three most 
 essential requisites: 
 
 1 1 Pick. 50; Cooley on Torts, § 638. Citizens' Bank v. Nantucket Steam- 
 Judge Cooley in his note to the text boat Co., 3 Story, 16, and other cases, 
 cites IMershon v. Hobensack, 32 N. J. ^ Gisbourn v. Hurst, 1 Salt. 349. 
 373. "No person is a common car- This definition is said by Gibson, C. J., 
 rier if not a carrier for hire." Citing in Gordon v. Hutchinson, 1 Watts & 
 
 372 
 
CH. II.j PUBLIC OE COMMON CAEEIEES, [§§ 407, 408. 
 
 1st. He must regularly undertake to carry goods for all who 
 choose to employ him, or goods and passengers between differ- 
 ent places for such as may offer. 
 
 2d. His undertaking and holding himself out to the public 
 as a carrier must be such that in case of his refusal to accept 
 and carry the goods in the regular course of his business he 
 would be liable td an action for the damages that might result. 
 
 3d. The carriage of goods or passengers must be for hire. 
 
 §407. (1) First essential reijuisite — The important and 
 distinguishing essentials.— The most important and distin- 
 guishing essential is, perhaps, the first one mentioned in the 
 above section. The common carrier must regularly undertake 
 to carry goods for all who choose to employ him, and to 
 carry all passengers who apply for carriage. It is this that 
 distinguishes the common carrier from the private or special 
 carrier. The private or special carrier may, like the boarding- 
 house keeper, select his customers; but the common carrier, 
 like the innkeeper, must serve all who apply. The common 
 carrier is therefore called a public carrier, and in some respects 
 may be said to be a public servant, owing to the public the per- 
 formance of certain duties and taking upon himself certain 
 public responsibilities. He cannot, like the private carrier, 
 choose his customers and make special contracts for carrying 
 their goods or transporting them as passengers ; he must carry 
 goods and passengers at the regular rate, not giving to one 
 advantages over others. It is the holding out to the public 
 by the carrier that he is ready and willing to carry the goods 
 of all who apply and pay the price for carrying that gives to 
 him the characteristics that distinguish him from other car- 
 riers and fixes his relation as a common carrier. 
 
 § 408. Second essential requisite — Determinate of the re- 
 lation. — Determinate of this relation, therefore, may be said 
 
 Serg. 285, to be the best definitiou of. kind which he pleases to carry, and 
 a common carrier in its application the persons so applying will agree to 
 to the business of this country, have them carried upon the 'lawful 
 Hutchinson on CaiTiers, sec. 47, is as terms prescribed by the carrier, and 
 follows: "A common or public car- who, if he refuses to carry such goods 
 rier is one who undertakes as a busi- for those who are willing to comply 
 ness for hire or reward to carry from with his terms, becomes liable to an 
 one place to another the goods of all action by the aggrieved party for 
 persons who may apply for such oar- such refusal." 
 riage, provided the goods be of the 
 
 373 
 
§ 409.] OAEEIEES. [PAET V. 
 
 to be the fact, not that he is engaged in a public employment, 
 or that he carries goods to any fixed or particular place, but 
 that, so far as his capacity for transporting goods or passengers 
 will permit, he holds himself out to the public as ready and 
 willing to carry the goods of all persons who choose to employ 
 him and all passengers who apply. The relation must be so 
 thoroughly defined and understood that in case of a refusal to 
 receive and carry the goods, the terms of carriage being com- 
 plied with, an action could be sustained against him for such 
 refusal.^ 
 
 § 409. The true test. — Judge Simpson, for the supreme 
 court of South Carolina, said : ^ " The true test of the character 
 of a party as to the fact whether he is a common carrier or 
 not is his legal duty and obligation with reference to trans- 
 portation. Is it optional with him whether he will or will not 
 carry? If it is his legal duty to carry for all alike who com- 
 ply with the terms as to freight, etc., then he is a common car- 
 rier and subject to all those stringent rules which for wise ends 
 have long since been adopted and uniformly enforced both in 
 England and in all the states upon common carriers. If, on the 
 contrary, he may carry or not as he deems best, he is but a 
 private individual, and is invested like all other private persons 
 Avith the right to make his own contracts, and when made 
 to stand upon them. While the law has imposed duties and 
 heavy responsibilities upon common carriers which they can- 
 not avoid, limit or shake off, yet it has never attempted to 
 hamper and surround those who are not common carriers with 
 the stringent rules applicable to carriers, or to prevent them 
 from exercising their own judgment as to the responsibilities 
 which they are willing to assume in a special case." 
 
 ' Nugent T. Smith, L. R. 1 Com. P. out, either expressly or by a course 
 Div. 37. The court say: "The real of conduct, that he will carry for 
 test of whether a man is a common ,hire, so long as he has room, the goods 
 carrier, wliether by land or water, of all persons indifferently who send 
 therefore really is whether he has him goods to be carried. If he does 
 held out that he will, so long as he this, his first responsibility naturally 
 has room, carry for hire the goods of is that he is bound by a promise im- 
 every person who will bring goods plied by law to carry for a reason- 
 to him to be carried. Tlie test is not able price the goods sent to him upon 
 whether he is can'ying on a public such an invitation." 
 emploj'ment, or whether he carries 2 Piedmont Mfg. Co. v. Columnia 
 to a fixed place, but whether be liolds River Co., 19 S. C. 353. 
 
 374 
 
CH. II.J PUBLIC OE COMMON CAEEIEES. [§ 410. 
 
 § 410. May limit the employment to certain kinds of 
 property. — While from the generally accepted definition of a 
 common carrier it might seem that the carrier will not be per- 
 mitted to limit his employment as to the kind of property 
 he will carry, yet there can be no doubt that he may do so. 
 As, for example, the carrier of freight and passengers cannot 
 be compelled to carry small packages or bundles, or money, or 
 such kind of goods as belong especially to the express com- 
 pany's business. Or the carrier who is engaged in running a 
 ferry-boat for the carriage of passengers could not be com- 
 pelled to carry freight, or be held liable for the carriage of 
 parcels which were delivered to the captain of the boat to be 
 carried to some consignee. He has limited his employment to 
 the carriage of passengers upon his ferry-boat, and he cannot 
 be compelled to cany property which is not in the line of his 
 employment. Judge Story says: " To bring a person within 
 the description of a common carrier he must exercise it as a 
 public employment; he must undertake to carry goods for per- 
 sons generally, and he must hold himself out as ready to en- 
 gage in the transportation of goods for hire as a business, not 
 as a casual occupation jpro hac vice.'" ^ In Citizens' Bank v. 
 Steamhoat Co.,^ Judge Story very clearly states the doctrine: 
 
 1 Story on Bailments, sec. 495 ; Gor- v. Buchanan, 5 Yerg. 71; Turney v. 
 
 don V. Hutchinson, 1 W. & S. (Pa.) Wilson, 7 Yerg. 340. The ruling 
 
 285; Mershon v. Hovensack, 22 N. J. seems to be rather exceptional. See 
 
 Law, 377; Verner v. Switzer, 32 Pa. Hutchinson on Carriers, sec. 52. 
 St. 208. In Moss v. Battis, 4 Heisk. ^ Citizens' Bank v. Nantucket 
 
 (Tenn.) 661, the defendant was a Steamboat Co., 2 Story (U. S.), 66; 
 
 farmer, and, after his crops were Redfield's Law of Railway Carriers 
 
 harvested, he ran a boat for himself (2d ed.), 1. The test as claimed by 
 
 or any one else who would employ some of the authors seems to be, is 
 
 him. He built a flat boat to trans- the business habitual, not merely 
 
 port to market a cargo of his own casual ? Fish v. Chapman, 3 Ga. 349, 
 
 staves, but at the request of the 46 Am. Dec. 393; Samms v. Stewart, 
 
 plaintiff he abandoned his intention 20 Ohio, 69. There are oases, how- 
 
 and loaded his own boat and one ever, that hold that the business need 
 
 furnished by the plaintiff with lum- not be continual, but that the test is 
 
 ber, and undertook to carry it by more confined to his holding himself 
 
 river to market. The boat struck an 'out as ready and willing to carry 
 
 obstruction, was sunk, and a part of property of all who apply. In Gordon 
 
 the lumber was lost. He was held v. Hutchinson, 1 W. & S. (Pa.) 285, 
 
 to be a common carrier. This has the court decidedly holds that it is 
 
 been held in other Tennessee oases, not necessary that transportation 
 
 Johnston v. Friar, 4 Yerg. 48; Gordon should be his principal business; that 
 
 375 
 
§ 410.] CAEEIEES. [PAET T. 
 
 "A steamboat may be employed, although I presume it is 
 rarely the case, solely in the transportation of passengers, and 
 then the liability is incurred only to the extent of the common 
 rights, duties and obligations of carrier vessels of passengers 
 by sea, and carrier vehicles of passengers on land; or thev 
 may be employed solely in the transportation of goods and 
 merchandise, and then, like other carriers of the like character 
 at sea and on land, they are bound to the common duties, ob- 
 ligations and liabilities of common carriers; or the employ- 
 ment may be limited to the mere carriage of particular kinds 
 of property and goods; and when this is so, and the fact is 
 known and avowed, the owners will not be liable as common 
 carriers for any other goods or propert}'' intrusted to their 
 agents without their consent. The transportation of passen- 
 gers or of merchandise, or of both, does not necessarily imply 
 that the owners hold themselves out as common carriers of 
 money or bank bills. It has never been imagined, I presume, 
 that the owners of a ferry-boat, whose ordinary employment 
 is merely to carry passengers and their luggage, would be 
 liable for the loss of money intrusted for carriage to the boat- 
 man or other servants of the owners, where the latter had no 
 knowledge thereof and received no compensation therefor. In 
 like manner the owners of stage-coaches, whose ordinary em- 
 ployment is limited to the transportation of passengers and 
 their luggage, would not be liable for parcels of goods or mer- 
 chandise intrusted to the boatman employed by them to be 
 carried from one place to another on their route where the 
 owners received no compensation therefor, and did not hold 
 themselves out as common carriers of such parcels. A fortiori 
 they would not be liable for the carriage of parcels of money 
 or bank bills, under the like circumstances. So, if money should 
 be intrusted to a common wagoner not authorized to receive 
 it by the ordinary business of his employers and owners, at 
 their risk, I apprehend that they would not be liable for the 
 loss thereof as common carriers, any more than they would be 
 for an injury done by his negligence to a passenger whom he 
 
 even if it is merely an occasional property of all who may apply, 
 business it would be enough, pro- Mores v. Norris, 4 N. H. 306; Haynie 
 vided, of course, he holds himself out v. Baylor, 18 Tex. 498; Farley v. 
 as ready and desirous of carrying the Lavery, 54 S. W. 840. 
 
 37G 
 
OH. 11. J PUBLIC OE COMMON CAEEIEKS. [§ ■±11. 
 
 had casually taken up ou the road. In all these cases the 
 nature and extent of the employment or business which is au- 
 thorized by the owners on their own account and at their own 
 risk, and which either expressly or impliedly they hold them- 
 selves out as undertaking, furnishes the true limits of their 
 rights, obligations, duties and liabilities. The question, there- 
 fore, in all cases of this sort is, what are the true nature and 
 «xteut of the employment and business in which the owners 
 hold themselves out to the public as engaged ? They may un- 
 dertake to be common carriers of passengers, and of goods and 
 merchandise, and of money; or they may limit their employ- 
 ment and business to the carriage of any one or more of these 
 particular matters." 
 
 § 411. (3) Third essential requisite — Carriage must be for 
 hire.— If the carrier is to receive no compensation, and the 
 service is gratuitous, we have seen that the carrier must of 
 necessity be a private or special carrier, for in such case he is 
 but. a gratuitous bailee.' To be a common carrier the service 
 must be for some reward, no matter how small the compensa- 
 tion, or whether it be direct or indirect; if there is any bene- 
 fit whatever derived from it to the carrier, it is enough to make 
 him a common carrier. Even a promise of benefit or payment 
 has been held to be sufficient. In Pierce v. Railroad Co."- the 
 action was to recover the value of eight bundles of bags which 
 had been in use for two seasons in transporting grain by way 
 of the river and defendants' railway. The defendants sought 
 to avoid liability as a common carrier by showing a uniform 
 and long established custom of the river and railway that the 
 bags used in the transportation of grain were carried free of 
 ■charge when empty, and claiming, because of this, that it could 
 be held liable only in case of gross negligence. The court 
 say: "It makes no difference that the custom is described as 
 being to carry the bags free. In determining whether they 
 
 1 In Citizens' Bank v. Nantucket any recompense for his services. Tlie 
 Steamboat Co., 3 Story (U. S.), 35, known definition of a common car- 
 Judge Story, in the opinion, says: " I rier in all our books fully establishes 
 take it to be exceedingly clear that this result." Louisville, etc. E. Co. 
 no person is a common carrier in the v. Gerson, 102 Ala. ■i09; Kemp v. 
 •sense of the law who is not a carrier Coughtry, 11 Johns. 107. 
 for hire,— that is, who does not re- ^33 Wis. 387. 
 ■ceive or is not entitled to receive 
 
 377 
 
§ 412.] CAKEIEES. [PAET V. 
 
 ara ruall_y carried free or not, the whole transaction between 
 the parties must be considered, and when this is done it is 
 found that all that is meant by saying that the empty bags are 
 carried free is, that the customer pays no other consideratioa 
 for it than "the freight derived from the business they give the 
 company. But this, as already seen, is sufficient to prevent 
 the transportation of the bags from being gratuitous.' 
 
 g 412. Carriers by water as well as by land. — Carriers by 
 water, including carriers upon the high seas, where they carry 
 goods for hire and hold themselves out as ready and willing 
 to serve all who come, are held to be common carriers and 
 subject to the liabilities that attach to common carriers. In 
 Liverpool Steamloat Co. v. Phccnix Co.^ Mr. Justice Gray, in 
 rendering the opinion of the court, says: "By the settled law, 
 in the absence of some valid agreement to the contrary, the 
 owner of a general ship carrying goods for hire, whether em- 
 ployed in internal, in coasting, or in foreign commerce, is a 
 common carrier with the liability of an insurer against all 
 losses except only such two irresistible causes as the act of God 
 and public enemies." It has been said, however, that "if the 
 owner of a ship employs it on his own account generally, or if 
 he lets the tonnage with a small exception to a single person, 
 and then, for the accommodation of a particular individual, he 
 
 iSmithv. Railroad Co.. 24N.T.223; pensation; and there was also a 
 
 Steamboat New "World v. King, 16 clause in the contract that "the per- 
 
 How. (U. S.) 469. In this case it was sons riding free to take charge of the 
 
 held that under a general custom of stock do so at their own risk of per- 
 
 steamboats to carry steamboat men sonal injury from whatever cause." 
 
 free, a steamboat man riding on a The court held, howevei-, that it 
 
 free ticket was not to be regarded as could not be considered a free carry- 
 
 a gratuitous passenger; but that the ing of the passengers who had charge 
 
 consideration was to be found in of the stock, and for any injury to 
 
 those advantages which induced the them the company must be held as 
 
 establishment of the custom. In Bis- common carriers, 
 sell V. New York Cent. R. Co., 3.5 N. Y. 2 139 xj. S. 397, 437 ; Story on Bail- 
 
 443, tlie carrier was employed to ments, sec. 501 ; The Niagara, 31 How, 
 
 transport certain live stock, and stip- 7, 23; The Lady Pike, 21 "Wall. 1, 14; 
 
 ulated to carry members of the firm, Portfield v. Humphreys, 8 Humph, 
 
 the plaintiff or such other persons as (Tenn.) 497; The Schooner Emma 
 
 theflrm should employto takecharge Johnston, 1 Sprague (U. S.), 527: The 
 
 of the stock during the transit, de- Propeller Commerce, 1 Black (U. S.), 
 
 fendants claimmg that the carriage 5S2; The Schooner Reeside, 2 Sumn. 
 
 of passengers was without com- (U.S.) 067; Parker v. Flag, 20 Me. 181. 
 
 378 
 
CH. II.] PUBLIC OE COMMON CARRIERS. ' [§§413, 414. 
 
 takes goods ou board for freight (not receiving them for per- 
 sons in general), he will not be deemed a common carrier but 
 a more private carrier, for he does not under such circumstances 
 hold himself out as engaged in a public business or employ- 
 ment." ^ This would seem at first blush not to be in harmony 
 with the class of cases already quoted, where it is held that it 
 is not necessary, in order to be held a common carrier, that the 
 person should be habitually and continually engaged in the 
 business of carrying goods for hire for all who may apply, but 
 that if he carries goods at particular times or seasons for hire, 
 holding himself out as ready and willing to carry for ajl, he 
 would be a common carrier. It will be noticed, however, that 
 these holdings do not include cases where goods are carried 
 for a private person, or for the accommodation of a "particu- 
 lar individual," and that therefore the holding is in harmony 
 with the cases cited. 
 
 § 413. Who are common cai-riers. — Having thus defined 
 common carriers and discussed the essentials, and determined 
 that carriers by water will, if carrying under the same circum- 
 stances, be common carriers the same as carriers by land, we 
 can make the application of the principles noticed to carriers 
 generally, and determine who are common or public carriers. 
 To name them all, however, would be somewhat difficult, for it 
 must be seen that they embrace a very large class. For ex- 
 ample, carriers by water have been held to comprise owners 
 of general ships, masters of steamers, steam vessels engaged in 
 coasting trade, inland trade, canal companies, owners of flat 
 boats holding themselves out as ready and willing to receive 
 freight from the public generally; in fact, the owners of almost 
 any craft, whether plying upon the lakes, upon the high seas 
 in the coasting trade, or in our navigable rivers, are common 
 carriers if engaged in the carriage of goods for hire and hold- 
 ing themselves out to the public generally as ready and will- 
 ing to carry freight or property or passengers for all who apply. 
 
 § 414. Tugs and tow-boats. — In the case of The J. P. Don- 
 aldson"^ the question discussed by the court, among other 
 things, was whether a tug-boat engaged in towing a barge was 
 
 1 Story on Bailments, seo. 501 ; Nu- ^ i67 U. S. 603. 
 gent V. Smith, 1 C. P. Div. 28. 
 
 379 
 
§ Hi.] CAEEIEES. [PAET V. 
 
 a common carrier and subject to the extraordinary liability 
 that attaches to such carriers. This question has been several 
 times before the courts, the contention being that the tug-boat 
 companies hold themselves out as ready and willing to take 
 any and all vessels or transports loaded with freight, or other- 
 wise, in tow for hire, and conduct them to whatever place is 
 desired within the limits of their ability, and that while so 
 having the vessel or transport in tow it is entirely within their 
 control and custody. The weight of autliority seems, however, 
 not to sustain the contention, holding that while the towing- 
 boat or tug may have control of the vessel or transport to the 
 extent of directing her course and controlling her progress, the 
 company or owners of the tug have no control over the cargo; 
 that it is in the immediate control and custody of those in con- 
 trol of the transport upon which it is being carried; and in case 
 of accident they would be expected to take care of the property 
 and protect it to the utmost extent of their ability. 
 
 Mr. Justice Gray, in delivering the opinion of the court in 
 The J. P . Donaldson, said: " While the tug is performing her 
 contract of towing the barges, they may indeed be regarded 
 as part of herself in the sense that her master is bound to use 
 due care to provide for their safety as well as her own, and 
 avoid collision either of them or of herself with other vessels.' 
 But the barges in tow are by no means put under the control 
 of the master of the tug to the same extent as the tug herself, 
 and the cargo, if any, on board of her. A general ship carry- 
 ing goods for hire, whether employed in internal, in coasting 
 or in foreign commerce, is a common carrier, and the ship and 
 her owners, in the absence of a valid agreement to the con- 
 trary, are liable to the owners of the goods carried as insurers 
 against all losses, excepting only such irresistible causes as the 
 act of God and public enemies.- But a tug and her owners 
 are subject to no such liability to the owners of the vessels 
 towed or of the cargoes on board of them. The owners of 
 the vessels or cargoes cannot maintain any action for the loss 
 of either against the tug or her owners, without proving neg- 
 ligence on her part. As was said by Mr. Justice Strong, and 
 
 1 The Syracuse. 9 Wall. 073, 075, 2 Liverpool Steamboat Co. v. Phoe- 
 676; The Civilta, 103 U. S. 699, 701. nix Ins. Co., 129 U. S. 397, 437. 
 
 880 
 
CH. II.J PUBLIC OR COMMON 0AEEIEE3. [§ 415. 
 
 repeated by the present Chief Justice : ' ' An engagement to tow 
 does not impose either an obligation to insure, or the liability 
 of common carriers. The burden is always upon him who 
 alleges the breach of such a contract to show either that there 
 has been no attempt at performance, or that there has been 
 negligence or unskilfulness to his injury in the performance. 
 Unlike the case of common carriers, damage sustained by the 
 tow does not ordinarily raise a presumption that the tug has 
 been in fault. The contract requires no more than that he who 
 undertakes to tow shall carry out his undertaking with that 
 degree of caution and skill which prudent navigators usually 
 employ in similar services.' " 
 
 The authorities, however, are not entirely harmonious upon 
 this subject, and there are jurisdictions vs^here it is maintained 
 that tugs are common carriers, and that the vessel they are 
 towing is being conveyed by them as a common carrier, and 
 that they are subjected to the same extraordinary liability.^ 
 
 §415. Contrary holdings. — The cases cited are such, for 
 example, as where the tug continually and habitually as a busi- 
 ness plies between certain points, holding out to the puhjic that 
 they will take in charge vessels or barges or crafts, and tow 
 them to certain points. In some cases where the vessel being 
 towed would be unable to make her way except when assisted 
 by the tow-boat, it is claimed that in such case the tow-boat 
 company or owner is in entire control of the vessel towed, and 
 that it should be as liable for the cargo of the vessel as though 
 the vessel, cargo and all were loaded upon her decks.' 
 
 iThe Webb, 14 Wall. 406, 414; The that relation would imply. It did 
 
 Burlington, 137 U. S. 386, 391; The not have to pay the master and the 
 
 L. P. Dayton, 130 U. S. 337, 351. In men in charge, nor did it exercise that 
 
 Transportation Line v. Hope, 95 U. S. internal control of her cargo, its stor- 
 
 397, in which the owner of a large age, its protection and the like which 
 
 barge maintained an action against belonged to a bailee, 
 
 the owner of a tug for negligence of ^ Sproul v. Hemingway, 14 Pick. 1, 
 
 the master of the tug by which the 35 Am. Dec. 350; White v. Steam 
 
 barge was totally lost, it was held by Tug Mary Ann, 6 Cal. 463, 65 Am. 
 
 thesupremecourtoftheUnitedStates Dec. 523; Ashmoore v. Pennsylvania 
 
 that while the tug had the control of Steam-towing Co., 28 N. J. L. 180. 
 
 the barge, so far as it was necessary ^ Bussey v. Miss. Valley Transp. Co., 
 
 to enable it to fulfill its contract to 24 La. Ann. 165, 13 Am. Dec. 120, in 
 
 tow the barge she did not occupy the which Judge Howell held that the 
 
 position of a common carrier, not conflict of authorities except in 
 
 having that exclusive control which Brown v. Clegg, 63 Pa. St. 51, is more 
 
 381 
 
§ 416.] 
 
 OAEEIEES. 
 
 [PAET T. 
 
 § 416. Ferry-lboats. — Ferrymen are held to be common car- 
 riei's, and it maj' be said that the authorities generally concede 
 that this relation exists and applies to ferrymen and ferry com- 
 panies. To this rule, however, it must be conceded that there 
 are limitations, but wliich would apply, perhaps, only where the 
 owner of the ferry-boat has not the full custody and control of 
 the property on board. As, for example, where a passenger 
 takes on board hand baggage, or parcels which he keeps in his 
 possession and under his control, in such case it cannot be said 
 that any of the reasons of public policy upon which the ex- 
 treme liability of common carriers is based apply.^ 
 
 imaginary than real, saying: " There 
 are two very different ways in wliich 
 a steamboat may be employed, and 
 it is likely that Mr. Story (Story on 
 Bailm., sec. 496) was contemplating 
 one method and Mr. Kent (3 Kent's 
 Com. 599) the other. In the first 
 place it may be employed as a mere 
 means of locomotion under the entire 
 control of the towed vessel, or the 
 owner of the towed vessel and goods 
 therein may remain in possession and 
 control of the property thus trans- 
 ported to the exclusion of the bailee, 
 or the towing may be casual merely, 
 and not as a regular business be- 
 tween fixed termini. . . . And it 
 might well be said that under such 
 circumstances the tow-boat or tug is 
 not a common carrier. But a second 
 and quite different method of em- 
 ploying a tow-boat is where it plies 
 regularly between fixed termini, 
 towing for hire and for all persons 
 barges ladened with goods, and tak- 
 ing into her full possession and con- 
 trol, and out of the control of the 
 bailor, the property thus transported. 
 ... It seems (meaning the last 
 above f o ulition) to satisfy every re- 
 quiremtnt in the definition of a com- 
 mon carrier. . . . We must think 
 that in all reason the liability of 
 the defendants under such circum- 
 stances would be precisely the same 
 as if the barge, being much smaller, 
 
 had been carried, cargo and all, on 
 the decks of their tug." 
 
 1 Wyckoff V. Queens County Ferry 
 Co., 53 N. y. 32-34. "-While ferry- 
 men, by reason of the nature of the 
 franchise they exercise, and the char- 
 acter of the services they render to 
 the public, are held to extreme dili- 
 gence and care, and to a stringent 
 liability for any neglect or omission 
 of duty, they do not assume all the 
 responsibility of common carriers. 
 Property carried upon a ferry-boat 
 in the custody and control of the 
 owner, a passenger, is not at the sole 
 risk either of the ferryman or the 
 owner. Both have duties to perform 
 in respect to it. If lost or damaged 
 by the act or neglect of the ferry- 
 man, he must respond to the owner. 
 The ordinary rules governing in ac- 
 tions for negligence apply, and a 
 plaintiff cannot recover if he is 
 guilty of negligence on his part, con. 
 tributing to the loss. The liability 
 of a common carrier, in all of its ex- 
 tent, only attaches when there is 
 an actual bailment, and the party 
 sought to be charged had the exclu- 
 sive custody and control of property 
 for carriage. A ferryman does not 
 undertake absolutely for the safety 
 of goods carried with and under the 
 control of the owner; but he does 
 undertake for their safety as against 
 the defects and insufficiencies of his 
 
 S82 
 
CH. II.J PUBLIC OR COMMON OAEEIEES. [§§ 417-419. 
 
 § 417, Carriers by land. — So numerous are the com- 
 mon carriers by land that it would hardly be possible for us to 
 mention them all, nor would it be profitable, as we can deter- 
 mine who are common carriers by an application of the rules 
 already discussed and to be discussed in this section. It may, 
 however, be profitable to mention a few and to discuss the law 
 applicable to their case. 
 
 § 418. Hacktneii and omnibus men. — Persons who are era- 
 ployed for hire in carrying passengers and baggage, and solicit- 
 ing general patronage from the public in that particular line, 
 are common carriers. In Parmelee v. MoNuUy ^ the court say : 
 " The court was authorized to take notice that the owner of an 
 omnibus line is a common carrier just as much as the owner of a 
 railroad or a line of steamboats. The court will take notice of the 
 general meaning of words, and we know that^an omnibus line 
 means a line of coaches for the carriage of passengers and their 
 baggage ; " ^ and in the absence of an express contract, a carrier 
 of passengers by hackney coach was held liable for injuries re- 
 sulting from his negligence to a gratuitous passenger.' 
 
 § 419. Truckmen, cartmen, and owners of wagons. — 
 
 In every city and town, and generally about every railway 
 station, are found those who are engaged in carting freight 
 carrying express, boxes, trunks, packages, and whatever they 
 can obtain within their line to carry for hire. They are en- 
 gaged in a public employment; they are public carriers. To 
 such the owners of property intrust their goods; placing them 
 in their entire custody and control to be carried to the desired 
 destination. Such persons carrying for hire, and holding them- 
 selves out to the public as ready to engage in the carrying 
 trade within the course of their particular employment, are 
 common carriers, and as such are subject to the duties and lia- 
 bilities of common carriers. A rather extreme case is given us 
 by the supreme court of Illinois, but which is undoubtedly 
 sound in principle. In a case involving this question the court 
 
 boat, and other appliances for the 1 19 111. 556; Bonce v. Dubuque, 
 
 performance of the services, and for etc. R. Co., 53 Iowa, 378, 36 Am. Rep. 
 
 the neglect or want of skill of himself 321. 
 
 and his servants." White v. Win- 2 Hutch, on Car., sees. 59, 60; Par- 
 
 nisimet Co., 7 Cush. 155; Will- melee v. Lowitz, 74 111. 116. 
 
 oughby V. Horridge, 13 Com. B. 743; ' Lemon v. Chanslor, 68 Mo. 340, 30 
 
 Walker v. Jackson, 10 M. & W. 161. Am. Rep. 799. 
 
 383 
 
§^ 420, 421. J OAEEIEES. [PAET T. 
 
 held: "Where a person, whose principal pursuit is farmino-, 
 solicits goods to be carried to the market town in his wagoa on 
 certain occasions, he makes himself a common carrier for those 
 Avho employ him.''^ During the time he is engaged in the pub- 
 lic employment he solicits all who have such property or articles 
 to be carried to intrust them to him, and pay him for trans- 
 porting them. 
 
 § 420. Street-car companies. — • Street-car companies 
 
 are without question common carriers of passengers. There 
 seems to be no dissent to this question. In this vocation, how- 
 ever, they are not liable as insurers of their passengers' safety, 
 but, as we shall see, are liable only for negligence in case of 
 injury. They are also common carriers, and subject to liabil- 
 ity as such when they engage in carrj'ing goods for hire or 
 baggage for their passengers, as other common carriers. In 
 later years these companies, having pushed their lines out 
 into the country surrounding their home cities, in the way 
 of suburban lines, have become an important factor in the 
 carrying trade. We find them carrjnng not only passengers 
 but also baggage and freight, and they must unquestionably be 
 classed with railroad companies as being engaged in the same 
 business and subject to the same liabilities.^ 
 
 § 421. Express companies. — There has been a great deal 
 of contention upon the part of the express companies in the 
 
 1 Jackson Agr. Iron Works v. Hurl- science, art and modern improve- 
 burt, 158 N. Y. 34-37, held : " Hack- ments in their application to such 
 men, wagoners and porters who un- transportation." In Levi v. Lynn & 
 dertake to carry goods for hire as Boston R. Co., 11 Allen, 300, in an 
 aconimonemployment ina city, and action against a street railway cor- 
 froni one town to another, are com- poration to recover for the loss of a 
 mon carriers. It is not necessary box of merchandise delivered them 
 that the exclusive business of the to be carried for hire on the front 
 parties shall be carrying." platform of one of their cars, the 
 
 2 Citizens' Street Ry. Co. v. Twi- plaintiff was permitted, for the pur- 
 name, 111 Ind. 587. -'A street rail- pose of showing them to be common 
 way company is a common carrier carriers, to prove that other persons 
 of passengers with duties and respon- had paid money to their conductors, 
 sibilities analogous to those of a rail- with the knowledge of their superin. 
 road company, and is required to ex- tendent, for the carriage of mer- 
 ercise the highest degree of care and chandise by them. The company 
 skill in the transportation of passen- was held liable for the value of tbe 
 gers by providing suitable tracks, box. 
 
 rolling stock, etc., keeping pace with 
 
 3S4 
 
CH. II.J PUBLIC OE COMMON CAEEIEES. [§ 421. 
 
 courts as to whether they are common carriers or simply for- 
 warders, because of the nianner of carrying on their busi- 
 ness, depending as they do for carriage of the goods intrusted 
 to them upon other companies, the express companies, as a 
 rule, having no vehicles of their own, except, perhaps, their 
 trucks or wagons supplied to the different offices for the de- 
 livering of express matter. For these reasons the express com- 
 panies have contended that they should not be held liable to 
 the extraordinary liability that attaches to common carriers 
 of goods, but should be held simply liable as forwarders, and 
 liable only for ordinary negligence and required to exercise 
 only ordinary diligence. These contentions, however, have not 
 found favor in the courts, and it may be said to be settled that 
 express companies are carriers; and this conclusion seems to 
 have been arrived at because of the usual course of business of 
 such companies. The goods are intrusted to them to be carried 
 and delivered to the consignee, not by any particular route or 
 in any particular way; the company may send them by rail- 
 road trains or by steamboats, or by any way it pleases so that 
 they are delivered within a suitable time to the person to whom 
 they are consigned. It is also understood and expected, and 
 fr,Dm the usual course of business the company impliedly agrees, 
 that an agent or manager, as he is called, of the company's own 
 appointing, will accompany the goods and take particular 
 charge and care of them on the route. For this reason it can- 
 not be said that the company does not have entire custody and 
 control of the property during the entire time of transit. Upon 
 their arrival in the city or town to which they are sent, the 
 manager or agent at once delivers them to the local agent of 
 the company, who takes charge of them and delivers or causes 
 them finally to be delivered to the consignee in person, or to 
 his place of business or residence, and to persons authorized to 
 receive them, so that the property sent by express companies 
 may be said to be more exclusively and particularly in the con- 
 trol of the express companies during transit than in most cases 
 where property is transferred by common carriers. The su- 
 preme court of Massachusetts, in BwMcmd v. Adams Express. 
 Go.} very fully and clearly discusses this question, holding 
 
 197 Mass. 124, 93 Am. Deo. 68; 2 Redfield on Railways, 1-16; Ken- 
 D wight V. Brewster, 1 Pick. 50, 53; tuolcy Banii v. Adams Exp. Co., 93 
 25 3S5 
 
§ 421.J 
 
 CAEEIJiES. 
 
 [PAKT V. 
 
 that the name or style under which they assume to carry on 
 their business is wholly immaterial; the real nature of their 
 occupation, and of the legal duties and obligations which it 
 Imposes on them, is to be ascertained from a considei'ation of 
 the kind of service which they hold themselves out to the pub- 
 lic as ready to render to those who may have occasion to em- 
 ploy them. Upon this point there is no room for doubt. They 
 exercise the employment of receiving, carrying and delivering 
 goods, wares and merchandise for hire on behalf of all persons 
 who may see fit to require their services. In this capacity 
 they take property from the custody of the owner, assume en- 
 tire possession and control of it, transport it from place to 
 place, and deliver it at the point of destination to a consignee 
 or agent there authorized to receive it. This statement em- 
 braces all the elements essential to constitute the relation of 
 common carrier on the part of express companies toward the 
 persons who employ them. 
 
 U. S. 17i; Cliristenson v. American of the case, and holding that the ex- 
 
 Exp. Co., 15 Minn. 370, 3 Am. Rep. 
 133. In this case the express com- 
 pany undertook by their receipt to 
 the consignor to limit their liability 
 to mere forwarders. The court in 
 its opinion makes a full statement of 
 the course of business of the express 
 company, stating that they are en- 
 gaged probably in the business of 
 transmitting for hire goods from 
 place to place. That they establish 
 local offices at which agents are sta- 
 tioned whose duty it is to receive 
 goods transmitted and deliver the 
 same to the consignee as well as to 
 receive goods for transmission; that 
 the express companies own no ve- 
 hicles or other means of transporta- 
 tion except such as are kept at their 
 local office and used for carrying 
 goods to and fi-om such office and to 
 their customers; that the practice of 
 the company is to transmit goods by 
 steamboats, railroads, coaches, etc., 
 owned and controlled by other par- 
 ties. That a messenger of the com- 
 pany accompanies the goods in their 
 transmission. After a full statement 
 
 press company is a common earner, 
 the court say: " The defendants style 
 themselves express forwarders and 
 they agree to forward the goods, but 
 this language does not necessarily 
 give them the character of simple 
 forwarders, nor prevent them from 
 being treated as common carriers.'' 
 Read v. Spaulding, 5 Bosw. 404; 
 Sweet V. Barney, 33 N. Y. 335; U. S. 
 Exp. Co. V. Backman, 28 Ohio St 144; 
 Verner v. Sweitzer, 32 Pa. St 208: 
 Southern Exp. Co. v. McVeigh, 20 
 Grat. (Va.) 264; Hutchinson on Car- 
 riers, 68-71; 2 Redfield on Railways, 
 19-30. Merchants' Disp. Co. v Blooh, 
 86 Tenn. 393, held : "A transportation 
 company not owning or controlling 
 any means of conveyance itself, but 
 engaging onits own behalf in thebiisi- 
 ness of transporting goods through 
 the agency and over the lines of 
 other carriers of its own selection 
 and employment, is a common car- 
 rier, and subject to all the responsi- 
 bilities attaching to their character." 
 6 Am. St. Rep. 847. 
 
 386 
 
CH. II.J PUBLIC OE COMMON OAEEIEES.' ' [§§ 422, 423. 
 
 § 432. Fast-freight lines, dispatch companies, etc.— 
 
 A very large trade or class of business has grown up and is 
 carried on by companies calling themselves dispatch compa- 
 nies, fast-freight lines, etc. These companies generally, but 
 not always, own their own vehicles or cars, in which the goods 
 intrusted to them for carriage are transported, employing rail- 
 road companies to haul them to their destination ; but in some, 
 cases when not using their own cars, they emplo}' the railroad 
 companies to transport the freight in their vehicles; all such 
 companies are held to be common carriers and are held to the 
 extraordinary liability that attaches to such carriers. They 
 receive the freight from the consignor, and contract to carry 
 it and deliver it to the consignee. The custody and control of 
 the property is handed over to these companies by the con- 
 signor for the purpose of being transported. They take the 
 property into their custody and control, and are obliged by 
 their contract, express or implied, to carry and deliver it to the 
 consignee. They are bound to comply with all the require- 
 ments incident to the business of a common carrier, and are 
 held to the same liability.^ 
 
 § 423. Transfer companies. — So companies in the sev- 
 eral towns and cities who solicit the business of transferring 
 for all who apply to them and pay the compensation, baggage 
 or freight from one railroad or steamboat station to another, 
 or who deliver baggage or freight to the owners and consign- 
 ees, are common carriers, and as such liable for the loss of or 
 injury to the property. It has been held, however, that when 
 these companies transfer freight between connecting carriers 
 they are acting as the agents of the carriers, and are not liable 
 as common carriers, upon the principle, it would seem, that the 
 control of the goods is not in their hands, but is with the car- 
 
 iBank of Kentucky v. -Adams Ex. constitute another person or corpo- 
 
 Co., 93 U. S. 174. It was held " that ration the agent of his consignor or 
 
 a party engaged as a common carrier consignee ; he may employ an agency, 
 
 by declaring or stipulating that he but it must be subordinate to him- 
 
 shall not be so considered divests self and not to the shipper, who nei- 
 
 himself of the liability attached to ther employs it, pays it. nor has any 
 
 the fixed legal character of that oo- right to interfere with it; its acts be- 
 
 cupatinn. A common carrier who come his because done in his service 
 
 undertakes for himself to perform an and by his direction." Hutchinson 
 
 entire service has no authority to on Carriers, sec. 72, 
 
 387 
 
§ 42-1:.] CAEEIEES. [PAET V. 
 
 riers who employ them. A late case has held that this is the 
 rule when transferring goods at the end of the route to the con- 
 signee, the transfer company acting for the carrier.^ 
 
 § 424. Railroad companies. — Eailroad companies are, as 
 has been said by an eminent jurist, "eminently common car- 
 riers," — common carriers of passengers and common carriers 
 of freight. As common carriers of passengers their duties and 
 liabilities are, as we shall see, very diiierent from their duties 
 and liabilities as common carriers of goods. That tbey hold 
 themselves out to the public as common carriers there can be 
 no doubt. Their whole purpose and aim and course of busi- 
 ness proclaim that their desire and business is to carry the 
 goods of all who call upon them for that service. They are 
 the most important of the carriers. Kailroad companies con- 
 struct their great thoroughfares through the country for the 
 purpose of meeting the demands of the public for the transpor- 
 tation of merchandise and passengers. They have often been 
 the pioneers of new and undeveloped sections of country, push- 
 ing their way across the broad, uncultivated prairies of the 
 west, even scaling the great mountain ranges, opening new 
 agricultural interests, developing the farms, showing the mine 
 owners of the immense coal and iron fields as well as of the 
 more precious metals a way to the great markets of the world, 
 at the same time making it possible to operate and develop these 
 valuable properties, and always soliciting the great carrying 
 trade as common carriers.'' 
 
 1 Nansen v. Jacobs, 12 Mo. App. ger for the safe-keeping and delivery 
 125; afBi-med, 93 Mo. 331; 30 Am. & of the baggage." 
 Eng. R. Cases, 553; Western R. Co. v. 2 Norway Plains Co. v. Boston & 
 Cotton Mills, 81 Ga. 522; Da Pointe M. R. Co., 1 Gray, 263, 269. "That 
 V. New Orleans Transfer Co., 42 La- railroad companies are authorized 
 An. 696; Verner v. Sweitzer, 32 Pa. by law to make roads as public high- 
 St. 208. In Da Pointe v. Transfer ways, to lay down tracks, place cars 
 Co., " a passenger on a railway train, upon them, and carry goods for hire, 
 having arrived at the point of desti- are circumstances which bring them 
 nation, entered into a contract with within all the rules of the common 
 a transfer company for an agreed law, and make them eminently coin- 
 compensation to procure his baggage mon carriers. Their iron roads, though 
 from the railroad company's depot built, in the first instance, by indi- 
 and haul it to his residence, and for vidual capital, are yet regarded as 
 that purpose surrendered his baggage public roads, required by common 
 checks. Held, that the transfer com- convenience and necessity, and their 
 pany was responsible to the passen- allowance by public authority can 
 
 388 
 
CH. II.J PUBLIC OE COMMON CAEEIEES. [§§ 425-427. 
 
 § 425. Receivers and trustees.— And so it may be said 
 that receivers and trustees of railroad companies, who operate 
 the road as such officers, are common carriers ; they are simply 
 the agents of the company, subject to the same liability. 
 
 § 426. Not all railroad companies are common car- 
 riers. — There are, as it is well understood, railroads built and 
 operated by private persons, companies or corporations for 
 their own private use; as, for example, logging roads, built 
 for the purpose of hauling out logs from tracts of timber 
 land ; roads built into coal-mines or iron-mines, used only and 
 exclusively for the accommodation of the particular property 
 of the owners;^ or where the company owns and furnishes 
 the motive power and rolling-stock, all of which is operated 
 and controlled by others.^ It is the offering to use, and oper- 
 ating the road for the public to carry the goods of all who 
 come, that makes the company liable as common carriers. 
 
 § 427. Who are not common carriers. — While we will not 
 at this time enumerate all who are engaged in seemingly 
 quasi-Tpnhlio service or business who are not common car- 
 riers, it perhaps may be well to mention some of the avoca- 
 tions. Warehousemen and forwarding merchants are held 
 simply as bailees of the mutual-benefit class, and liable for 
 
 only be justified on that ground. The but it becomes an agent of the pub- 
 general principle has been uniformly lie in consequence of the power con- 
 50 decided in England and in this ferred upon it." 
 country; and the point is to asoer- i Wade v. Lutcher, etc. Co., 74 Fed. 
 tain the precise limits of their liabil- 517; Avinger v. S. C. E. Co., 29 S. O. 
 ity. . . . Being liable as common 265, 13 Am. St. Rep. 716. 
 carriers, the rule of the common law 2 in Coup v. Wabash, St. L. & P. R. 
 attaches tothem, that they are liable. Co., 56 Mich. Ill, the plaintiff had 
 for losses occurring from any inci- a large circus property, including 
 dent which may befall the goods horses, wild animals and various 
 during the transit, except those aris- paraphernalia, with tents and appli- 
 ing from the act of God or a public ances for exhibition. He own«d 
 enemy." Thomas r. Boston, etc. R. special cars fitted up for the car- 
 Co., 10 Met. 473, 43 Am. Dec 444; riage of performers and properties, 
 Sandford v. Catawissa, etc. R. Co., 24 in which the whole concern was 
 Pa. St. 376, 64 Am. Deo. 667. In Mes- moved from place to place for exhi- 
 senger v. Pa. R. Co., 36 N. J. Law, bition. Plaintiflf made a written 
 407, 13 Am. Dec. 457, the court say: contract with defendants to the ef- 
 " In my opinion a railroad company, feet that the railroad company was 
 constituted under statutory author- to furnish men and motive power to 
 ity, is not only by force of its inher- transfer the circus train by one or 
 ent nature a common cai-rier, . . . more divisions from Cairo to Detroit, 
 
 389 
 
§ 427.] CAEEIEES. [PAET V. 
 
 ordinary negligence and held to ordinary diligence.^ So also 
 sleeping-car companies; these companies do not control the 
 trains which draw their cars, but are simply leased, as a gen- 
 eral rule, by the railroad company that operates the train. The 
 railroad company itself is liable so far as any extraordinary 
 liability might attach. The sleeping-car companies are only 
 liable in cases, as we shall see later, where they have taken 
 the custody or control of the baggage of the passengers. So 
 telegraph and telephone companies, postmasters, mail contract- 
 ors, and many others; none of them are held to be common 
 carriers.- And it has been held that canal companies are not 
 common carriers in the sense that they are bound for the safe, 
 navigable state of the canal, being only bound to the exercise 
 of reasonable care;' and that a canal company is not liable as 
 a common carrier for timber lost from rafts transported by it, 
 by theft, sinking or otherwise.* 
 
 with privilege of stopping for exhi- ings have peculiar features of their 
 
 bition at three places named, fixing own, but they cannot be brought 
 
 the time of starting from each place within the range of common oar- 
 
 of exhibition ; plaintiff to furnish his riage."' Mann v. White River, etc. 
 
 own cars, and two from another Co., 46 Mich. 38; Chicago, etc. R. Co. 
 
 company in good condition and run- v. Wallace, 66 Fed. 506. 
 
 ning order. A stipulated price was l Denny v. N. Y. Cent. R. R. Co., 13 
 
 agreed upon which the plaintiff was Gray, 481, 115 Mass. 333, 8 Cow. 223. 
 
 to pay. Under such a state of facts ^ Mann v. Logging Co., 46 Mich. 33, 
 
 the court held that the railroad com- 41 Am. Rep. 149. ' 
 
 pany was not liable as common car- ' Pa. Canal Co. v. Burd, 90 Pa. St 
 
 riers. The court say it is a misno- 281, 31 Am. Rep. 659. 
 
 mer to speak of such an arrangement * Watts v. S. & O. Canal Co., 64 Ga. 
 
 as an agreement for carriage at all. 88, 37 Am. Rep. 53. 
 
 . . . All thes« special undertak- 
 
 390 
 
CHAPTER III. 
 
 CARRIERS OF GOODS — SOME ESSENTIALS THAT FIX THE LIA- 
 BILITY OF COMMON CARRIERS. 
 
 § 438. Object of the chapter — Some 
 presumptions. 
 439. Certain facts must be proven. 
 
 430. Delivery of the property for 
 
 transportation. 
 
 431. The place of delivery. 
 438. Usage and custom. 
 
 433. Actual notice of deposit of 
 
 goods. 
 
 434. Time of delivery. 
 
 435. By ^frhom must delivery be 
 
 made and to whom. 
 
 436. 
 
 437. 
 
 — To vphom must delivery 
 be made. 
 
 — Facts relied upon to show 
 apparent authority must be 
 clear. 
 
 438. Agents authorized to receive. 
 
 439. Constructive delivery. 
 
 440. Rules permitting constructive 
 
 delivery must be applied 
 with great caution. 
 
 §428. Object of the chapter — Some presumptions.— We 
 
 have discussed in the previous chapter some of the essential 
 requisites of a common carrier, determining that these requi- 
 sites must exist in the given case before one can be held to be 
 a common carrier. It is the object of this chapter to dis- 
 cuss the facts or essentials that must exist in order to fix upon 
 the carrier liability for loss or injury of property delivered to 
 him for carriage. From what has been said it follows that 
 certain persons and companies holding themselves out to the 
 public as ready to transport the goods of others for hire are 
 common carriers, and so unquestionably and notoriously do 
 they possess all the requisites, that the courts without especial 
 proof of these requisites will presume them to be such, and 
 should they deny the relation, namely, that they are common 
 carriers, the burden of proving that they are not would be 
 upon them, as the presumption is so strong and the fact so 
 generally understood; as, for example, railroad companies, 
 steamboat companies, express companies, and all such persons 
 and companies as are generally known to follow the pursuit 
 of carrying goods for all who apply to them and pay the com- 
 pensation. But to fix the liability for loss or injury to the 
 property carried by these common carriers much more is re- 
 
 391 
 
§g 429, 430.] CAEEIEES. [PAET T. 
 
 quired, for the carrier is not called upon to respond in every 
 case of loss, nor is he at all times liable to the extraordinary 
 liability.^ 
 
 § 139. Certain facts must be proven. — Before the extraor- 
 dinary liability can attach it must be shown that the goods 
 lost or injured were delivered to the carrier for transportation 
 in the usual and ordinary manner, and were of such a kind as 
 the carrier holds out to the public he will carry, and as he is 
 reasonably expected by the public to cSirry, The element that 
 has much to do with fixing the liability is the placing of the 
 property in custody and exclusive control of the carrier for the 
 time for transportation. Then, too, the kind of goods, as we 
 shall see, has much to do with fixing the liability, or rather, 
 perhaps, in excusing the carrier from it; as, for example, 
 whether the goods or property are animate or inanimate; 
 whether perishable or otherwise, or whether from their own 
 inherent nature liable to destruction or injury; for the com- 
 mon and ordinary understanding of men would lead one to 
 know that the duties of the common carrier would be very 
 much different in handling animate or inanimate freight, or 
 perishable or destructible property, because of its own inherent 
 nature, from that which was otherwise. Then, too, to fix the 
 liability, it must further appear that the loss or injury occurred 
 while the property was in the course of transportation, and that 
 the loss or injury was not occasioned by any cause for which 
 the common carrier could not be held legally liable. Each of 
 these several questions calls for consideration, together with 
 others that are important in fixing the liability of the carrier. 
 
 § 430. Delivery of the property for transportation.— The 
 primary essential in fixing the liability of the carrier is the de- 
 livery to him of the property by the shipper for carriage, or the 
 tendering of the same in some cases. This delivery may be 
 largely regulated by the reasonable rules and regulations of 
 the carrier, and, when so regulated, the shipper must follow 
 these regulations as well as the requirements of the law. The 
 delivery must be complete; the property placed in the custody 
 and entire control of the carrier for immediate transportation. 
 If it is delivered with the understanding that it is to be held 
 in the common carrier's warehouse for a time, or until the hap- 
 
 1 Hutchinson on Carriers, sec. 73. 
 
OH. III.] ESSENTIALS THAT FIX LIABILITY. [§ 430. 
 
 pening of Dome event which is to decide the question as to 
 where the consignor will ship it, or if it is to be held for any 
 length of time and then shipped, it cannot be said to be a de- 
 livery for shipment in the sense that binds the carrier to the 
 extraordinary liability during the interim between such deliv- 
 ery and shipment; and in such case, as we shall see, the carrier 
 for that time is only an ordinary bailee of the property, from 
 whom is required ordinary diligence in caring for it. It is the 
 complete delivery for immediate transportation, the surrender- 
 ing of the entire custody and control of the property for the 
 time for transportation, that fixes the liability of the common 
 carrier; this is the important essential. And so it has been 
 held that the relation of shipper and carrier does not begin 
 between the owner of the goods and the common carrier, 
 though the former may have delivered the goods to the latter, 
 if, after such delivery, anything is required or remains to be 
 done by the shipper, either because of the contract for ship- 
 ment or on account of any of the rules or regulations of the 
 company.! And where the goods were receipted for by the 
 carrier's agent, who had no knowledge of their delivery except 
 a slip signed by the boatman, it was held that no liability was 
 created, the goods in fact not having been delivered to the 
 carrier.^ And where the agent of the carrier merely gave the 
 shipper permission to place his cattle in the company's yai-ds, 
 no bill of lading having been given, in such case the company 
 
 1 It was held in Wilson v. Atlanta, Iiad still to be loaded, counted and 
 
 etc. E. Co., 83 Ga. 386, that "delivery receipted for. it was held that deliv- 
 
 of goods to a common carrier for ery was not complete, and the com- 
 
 transportatioQ, whether actual or pany could not be held liable for the 
 
 constructive, being a bailment, in- delay. Frazier v. Railroad Co., 48 
 
 volves exclusive possession in the Iowa, 571. 
 
 carrier, and this involves a surrender '^The Willie D. Sandhoval, 93 Fed. 
 
 of custody and control for the time 386; St. Louis K. Co. v. Knight, 122 
 
 by the consignor." St. Louis, M. & U. S. 79, 30 Lawyers' ed. 10T7, held 
 
 S. R. Co. V. Insurance Co., 139 U. S. "that the relation is not established 
 
 333; Leigh v. Smith, 1 Car. & P. 638; until the specifio lots of property in- 
 
 Dixon V. Railroad Co., 110 Ga. 173. tended for the carrier have been sep- 
 
 Where hogs had been brought to the arated and set apart and delivered 
 
 railroad station to be transported, to the carrier for immediate trans- 
 
 but at the time the train arrived portation according to the terms of 
 
 upon which they were to be taken the bill of lading." 
 they were still in a private yard, and 
 
 393 
 
§ 431. j CAEEIEES. [part V. 
 
 is not rendered liable for damages caused by the escape of the 
 cattle.^ 
 
 § 431. The place of delivery. — When the goods have really 
 been delivered to the carrier for shipment, according to the re- 
 quirements mentioned in the previous section, and have been 
 received for that purpose by the carrier or his agent, his lia- 
 bility as a common carrier commences. Indeed, the goods have 
 already legally started upon their journey; they are in transit 
 as much as though they had been loaded into the carrier's ve- 
 hicle and were being carried over the road. The carrier, ho^Y- 
 ever, has the right to know that the property has been delivered 
 for carriage, and it has been said that no legal delivery can be 
 made without his knowledge. The carrier has the right, by 
 reasonable rules and regulations, to fix the place where freight 
 shall be delivered for transportation, and usually in cases of 
 railway companies or transportation companies the place des- 
 ignated is at the warehouse of the company, or at some other 
 convenient place named by the carrier. And so it has been 
 held that freight left upon the platform or upon the dock, or 
 deposited on a switch, or along the roadside, even though one 
 of the company's servants promised to stop the train there and • 
 take it on; or the loading of goods upon a car standing on the 
 side-track at the carrier's depot, done without the knowledge 
 of the agent; or depositing goods in the yard of an inn from 
 which the carrier starts his coaches, and not at a place or one 
 of the places designated for receiving goods for shipment bj^ 
 the company, is not a delivery to the carrier in such a way as 
 to render him liable as such for its loss or injury.^ 
 
 iFt. Worth & D. R. Co. v. Riley, 1 completed. It is Dot enough that the- 
 
 S. W. 446; Louisville & N. R. Co. v. property is delivered upon the prem- 
 
 Echols, 97 Ala. 556, 13 So. 304; Ben- ises unless the delivery is aooompar 
 
 nett v. The Guiding Star (D. C), 53 nied by notice to the proper person. 
 
 Fed. 936; London & L. Ins. Co. v. The liability of the carrier attaches 
 
 Rome, W. & O. R. Co., 33 N.Y. S.231. only from the time of the acceptance 
 
 ^In Grosvenor v. Railroad Co., 39 of the goods by him. To complete the 
 
 N. Y. 34, the court say: " To render delivery of the property, within the 
 
 a party liable as a common carrier it rules laid down in the authorities, 
 
 must be established that the prop- I think it is also essential that the 
 
 erty was actually delivered to the property should be placed in such a 
 
 common carrier, or to some person position that it may be taken care of 
 
 duly authorized to act on his behalf, by the agent or person having charge 
 
 The responsibility of the carrier does of the business and under his irame- 
 
 not commence until the delivery is diate control." Angell on Car., sec. 
 
 394 
 
OH. III. J ESSENTIALS THAT FIX LIABILITY. [§ 432. 
 
 § 432. Usage and custom.— While the law demands a, full 
 compliance with the rules governing the delivery of the goods 
 to the carrier and to the reasonable regulations of the carrier, 
 nevertheless these rules and regulations are more or less varied 
 and limited by usage and custom long continued, and which 
 have become well understood by shippers and the public, and 
 are in good faith acted upon. In fact, where such usage and 
 custom has prevailed and for a long time been acquiesced 
 in without change or objection by the carrier, it may be 
 said that rules and regulations, so far as they infringe upon 
 such usage and custom, have been displaced and are of no 
 legal effect. And so the goods delivered for shipment in 
 accordance with well established usage and custom will ren- 
 der the carrier liable, even though it be at a place outside of 
 the carrier's warehouse, and at another place than that fixed 
 by the express rules and regulations of the company. But 
 in such case the usage must be strictly followed, and where it 
 had become a custom accepted and understood that goods might 
 be delivered to the mate of the ship, it was held that this cus- 
 tom or usage was not complied with by merely leaving the 
 property on the wharf.^ In Wright v. Caldwell,^ the plaintiff, 
 intending to take passage on the steamboat of defendant, de- 
 posited his trunk on board in the usual place for baggage, but 
 without putting it in charge of any person, or notifying any 
 one employed on the boat of such deposit, or of his intention 
 to take passage, and while temporarily absent from the boat 
 she started on her trip and he was left. The trunk could not 
 afterwards be found. The court say: "It is admitted by the 
 counsel for the plaintiff that to hold a common carrier liable 
 in respect to property lost in the course of his employment, it 
 is incumbent on him to show a delivery of the property to the 
 carrier, and its acceptance by him, for purposes contemplated 
 by the parties. But while this general principle of law is un- 
 questioned, its force and effect is sought to be obviated by the 
 
 129; Story on Bailm., see. 533; Pack- v. Atlanta, etc. R. Co., 19 S. C. 39, 13 
 
 ard T. Getman, 6 Cow. 757; Trevor Am. & Eng. R. Cas. 479; Houston p. 
 
 V. U. Sc a R. Co., 7 Hill, 47; Blanch- Co. v. Hodde, 43 Tex. 467; Wilson v. 
 
 ard V. Isaacs, 3 Barb. 388; 3 Kent's Atlanta R. Co., 82 Ga. 386, 40 Am. & 
 
 Com. 604; Dixon v. Railroad Co., 110 Eng. R. Cas. 35. 
 Ga. 178; Louisville R. Co. v. Flanigan, i Leigh v. Smith, 1 Car. & P. 639. 
 113 Ind. 488, 3 Am. St. Rep. 674 ; Brow^n 2 3 Mich. 51. 
 
 395 
 
§ 432.] CAEEIEES. [part Y. 
 
 special oircumstances of this case. It is contended that the 
 general principle is controlled by the usage established by the 
 proof. It is well settled by a series of adjudications of high 
 authority, that if a uniform custom is established and recog- 
 nized by the carrier, and is known to the public, that property 
 intended for carriage may be deposited in a particular place 
 without express notice to him, that a deposit of property for 
 that purpose in accordance with the custom is constructive no- 
 tice, and would render any other form of delivery unneces- 
 sary. The rule is founded in reason; as the usage, if habitual, 
 is a declaration by the carrier to the public that a delivery of 
 property in accordance with the usage will be deemed an ac- 
 ceptance of it by him for the purpose of transportation." And 
 where it appeared that by local custom, well understood and 
 accepted by the shipper and carrier, goods might be deliv- 
 ered for shipment by placing them on the platform of the 
 depot, it was held that such a delivery would support an ac- 
 tion for goods so delivered which were destroyed by lire set 
 by boys allowed to play upon that platform.' And where it was 
 shown to be the " constant and habitual practice and usage 
 of a carrier to receive the goods when they are deposited for 
 him in a particular place without special notice of such de- 
 posit, it was held sufficient to show a public offer by the car- 
 rier to receive goods in that mode, and to constitute an agree- 
 ment between the parties by which the goods when so deposited 
 shall be considered as delivered to him without any further no- 
 tice. Such a practice and usage are tantamount to an open 
 declaration, a public advertisement by the carrier, that such a 
 delivery should of itself be deemed an acceptance by him, and 
 to permit him to set up against those who had been thereby in- 
 duced to omit it, the want of the formality of an express notice 
 which had been thus waived, would be sanctioning injustice 
 and fraud." ^ But where the goods were loaded into a car 
 
 ' Ft. Worth & D. E. Co. v. Martin, And it has been held that an agree- 
 
 12 Tex. Civ. App. 464. ment to receive goods for transporta- 
 
 2 Jlontgomery, etc. R. Co. v. Kolb tion deposited at a particular place, 
 
 et al.. 73 Ala. 396-405, 40 Am. Rep. namely, upon the carrier's private 
 
 54,18Am. &Eng. R. Cas. 513; Hutch, wharf, would be implied where it 
 
 on Car., sec. 90. The above, taken has become a constant practice and 
 
 from the opinion of the court, is usage to receive goods for transporta- 
 
 quoted from Hutchinson on Carriers, tion by the carrier, and take charge 
 
 S90 
 
OH. III.] ESSENTIALS THAT FIX LIABILITY. [§§ 433, 434. 
 
 standing on a side-track, by the owner, who was desirous of 
 shipping them, it was held not to constitute a delivery to the 
 railroad company, where the station agent, being notified 
 thereof, declined to ship the goods, there being no custom or 
 regulation of the railroad company making such loading into 
 the company's car a delivery.^ 
 
 § 433. Actual notice of deposit of goods. — As a general 
 rule, however, if there is no custom or usage which might be 
 said to govern the delivery of the property for shipment as 
 mentioned in the previous section, notice of the delivery of the 
 property, if delivered at some other place than that fixed and 
 required bj' the rules and regulations of the company, must be 
 given to the carrier or his agent, and his acquiescence in such 
 delivery received, otherwise a deposit of the goods at an un- 
 usual place, as on the platform, or loading them in a railroad 
 car, or depositing them upon the wharf instead of the place 
 designated by the company, would not be held to be a delivery.' 
 
 § 434. Time of delivery. — The time of delivering the goods 
 must be at a reasonable hour, and generally in conformity Avith 
 the requirements of the rules and regulations of the carrier,if any. 
 Good sense and business methods dictate that the time the car- 
 rier should be compelled to receive freight for shipment would 
 depend very largely upon the time of the running of its trains, 
 the departure of its boats or other vehicles for transporting the 
 goods. Generally, however, it may be said that the freight 
 should be delivered within customary business hours, and if 
 for transportation upon any particular boat or train, at a rea- 
 sonable time before its departure. All this is subject, however, 
 to the reasonable rules and regulations of the carrier, modified, 
 as we have seen, by custom and usage that have become well 
 known and understood, and seem to have been accepted by the 
 carrier. "Where the shipper delivered the freight to be carried 
 during a storm which afterward resulted in its injury, it was 
 
 of the property so deposited without 313, 41 Iowa, 410; Galena, etc. R. Co. 
 
 any express notice of such deposit, v. Rae, 18 111. 488, 68 Am. Deo. 574. 
 
 Marriam v. Hartford, etc. R. Co., 30 ^ Packard v. Getman, 6 Cow. (N. Y.) 
 
 Conn. 351 758, 16 Am. Dec. 475, 4 Wend. 615; 
 
 ' Evansville & T. H. R. Co. v. Keith, Grosvenor v. N. Y. Cent. R. Co., 39 
 
 Bind. App. 57, 5N. E. 396; Capehart N. Y. 34; Salinger v. Simmons, 57 
 
 V. Granite Mfg. Co. , 97 Ala. 333 ; Union Barb. 513 ; II L Cent. R. Co. v. Smyser, 
 
 Pac. B. Co. V. Hepner, 3 Colo. App. 38 111. 354, 87 Am. Dec. 301. 
 
 397 
 
§ 435. J CAREIEKS. [part V. 
 
 held that the shipper should not be held guilty of contributory 
 negligence if the carrier consented to receive the goods. "What- 
 ever objection he might have made was waived, and he became 
 responsible for the security of his goods from the time of such 
 acceptance.'^ 
 
 § 435. By whom must delivery be made and to whom.— 
 A good delivery of the goods for shipment may be made to the 
 common carrier by the owner, a duly authorized agent, or any 
 person to whom he has delivered the possession and control of 
 the property with all the indicia of ownership. Apparent au- 
 thority, as well as actual authority, may also be relied upon by 
 the carrier in such cases. That principle of agency, too, that 
 the agent is authorized to exercise all the powers necessary to 
 affect the purpose of the agency, may be successfully invoked 
 by the carrier. And so it has been held that " authority to 
 deliver goods to a common carrier for transportation includes 
 all the necessary and usual means of carrying it into effect. It 
 can only be executed by obtaining the consent of the carrier 
 to receive them, and the agent is therefore authorized to stip- 
 ulate for the terms of transportation." Where a cartman, em- 
 ployed by persons from whom a valuable mirror had been pur- 
 chased, and who agreed to forward it by the defendant carrier, 
 signed a contract for the owner as agent, limiting the liability 
 of the carrier in case the mirror was broken, the persons from 
 whom the purchase was made consenting thereto, it was held 
 that the defendant, by reason of the contract, was not liable, 
 and that the authority to sign was incident to the authority to 
 ship.- In Hayes v. CamphelP it was held that where there are 
 facts brought home to the carrier showing that the person 
 shipping the property is a mere agent and not the owner, 
 the carrier is put upon inquiry as to the authority of and the 
 extent of the powers of such agent. Where wool was deliv- 
 ered at the station of a common carrier in sacks marked with 
 the name and address of the owner, whose place of business 
 was m Boston, and with the initial of the agent who had pur- 
 chased it, with the weights and numbers upon all the sacks, and 
 
 • New Brunswick Steamboat & 498; Squire et al. v.,N. Y. Cent. R Co., 
 Trans. Co. v. Tiers, 34 N. J. L. 697, 64 98 Mass. 239; York Co. v. Cent. E. K. 
 Am. Deo. 394. Co., 3 Wall. (U. S.) 107, 113. 
 
 2 Nelson v. H. R. R. Co., 48 N. Y. 3 63 Cal. 143. 
 
 398 
 
<!H. III.] ESSENTIALS THAT FIX LIABILITT. [§ 436. 
 
 it appeared that previous shipments had been made by the 
 same agent at the same place to the same parties during the 
 same season, and that when said agent delivered this wool he 
 piled it into one part of the building and pointed it out to the 
 <3arrier's agent, saying that that pile of wool is for Boston, it 
 was held that this constituted a good and sufHcient delivery.' 
 
 § 436. To whom must delivery be made. — It is a gen- 
 eral rule that to render a common carrier liable for goods to 
 be carried by him, the fact that the goods were actually de- 
 livered to him, or to some person authorized to act in his 
 behalf, must be established. This is important, because his lia- 
 bility attaches only from the time he accepts the goods to be 
 ■carried, or is legally bound to accept them. " To complete the 
 delivery of goods to the carrier it is essential that the property 
 be placed in a position to be cared for, and under the control 
 •of •the carrier or his agent with his knowledge and consent." ^ It 
 is a fact commonly known and understood that carriers gener- 
 ally act through their agents, and the question often arises, 
 who are the duly authorized agents of the carrier? To deter- 
 mine this question we are to apply the ordinarj'^ rules of the 
 law of agency. The shipper is not bound to make a full in- 
 vestigation in order to determine whether one is an agent of 
 • the carrier company. If the person has apparent authority, if 
 he is in the place of the carrier, acting for him in the receiving 
 -of freight and sending it forward, so engaged that to the or- 
 dinarily prudent business man it would appear that he had 
 authority to act and was acting for and with the knowledge 
 ■of the company, it is sufficient. If the person is accustomed 
 to act for the company, and has been so doing for a consider- 
 able time, so long and so often that it could be reasonably in- 
 ferred that the carrier must know that he is acting, he will be 
 held to have authority to act. Where a package for an ex- 
 press company was delivered to a person in charge at the rail- 
 road depot who had been accustomed to receive such packages 
 for the company, it was held, in an action against the company 
 for failure to deliver the package, that the delivery to the com- 
 pany was sufficient.' And where packages were delivered to 
 
 1 Nichols V. Smith, 115 Mass. 333. 3 Express Co. v. Black, 8 Tex. Civ. 
 ^ Grosvenor v. N. Y. Cent. R. Co., App. 863. 
 •39 N. Y. 81 
 
 899 
 
§ 437.] 
 
 CAEEIEES. 
 
 [PAET V. 
 
 an expressman in charge of an express wagon bearing the name 
 of the express company, the wagon being one that called at 
 plaintiff's place every night for goods to be delivered, the ex- 
 pressman signing a receipt on a form used by the company, it 
 was held that the expressman had authority to act for the 
 company in receiving the goods, and the delivery was suffi- 
 cient.^ 
 
 § 437. Facts relied upon to show apparent antliority 
 
 must be clear. — While apparent authority is usually suiBcient, 
 the facts upon which it is claimed must be clear and coaclu- 
 sive and of such a nature as to convince the ordinarily prudent 
 business man that the authority is really possessed by the per- 
 son acting as the agent of the carrier. If the facts relied upon 
 are not sufficient to support such a belief, then delivery to one 
 not having authority would not be sufficient.^ The delivery 
 must be to the carrier or to an agent having actual or apparent 
 authority to act, and not to a mere servant, or a deck hand 
 upon a steamboat, or a brakeman upon a railroad train, or a 
 switchman at the station, for these persons have no authority 
 to receive goods for shipment.' Where one delivered a coat 
 
 1 Lewis V. Vanhorn, 53 N. Y. S. 446, 
 24 Misc. Rep. 765. And in Goodrich 
 V. Tliompson, 44 N. Y. 324, it was 
 held: " If an agent (a clerk), author- 
 ized by the general jnode in which 
 tlie business of his principals (for- 
 warders) is conducted, to make a gen- 
 eral contract in the ordinary course 
 of the business, assumes to make 
 a special contract with a third per- 
 son, who has no notice of any limita^ 
 tion of the authority of such agent, 
 the principals, as between themselves 
 and such third person, are bound by 
 the contract so made." 
 
 2 Abram v. Piatt, 52 N. Y. S. 153, 
 23 Misc. 637. It appeared that "the 
 plaintiff, a regular customer of the 
 defendant express company, exhib- 
 ited the usual card indicative of his 
 wish to ship goods, and in apparent 
 response thereto a man wearing a 
 badge with the name of the defend- 
 ant company entered plaintiff's store, 
 
 receipted for the goods and took 
 them away. The receipt thus signed 
 was in a book of blanks which tbe 
 company had furnished to plaintiff. 
 At the time of this delivery a wagon 
 was seen across the street on which 
 the name of the company appeared, 
 but the man was not seen to come 
 from it or return to it, and it was not 
 shown to have belonged to the com- 
 pany. The man was not the one who 
 usually called for goods, and had 
 never been seen before at plaintiff's 
 store. Held, in an action to recover 
 the value of the goods, which were 
 never delivered, that the evidence 
 failed to show that the man in ques- 
 tion was defendant's agent, and that 
 complainant should have been dis- 
 missed. " 
 
 3 Young V. Can. Pao. R. Co., 1 Mani- 
 toba L. 205 ; Butler v. Hudson River 
 R. Co., 3 E. D. Smith (K. Y.), 571. 
 
 400 
 
CH. III.] ESSENTIALS THAT FIX LIABILITY. [§§ 438, 439. 
 
 to a stage driver to be carried and delivered to another place 
 and asiied that it be put in the waybill, but the driver ob- 
 jected, that he had no authority to do so, but would carry it 
 to the next station and have the agept of the company put it 
 in the bill, it was held that this was not a sufficient delivery 
 to the carrier, and that he could not be held liable for the loss 
 of the coat.i 
 
 § 438. Agents authorized to receive. — It may be said that 
 the agents that are ordinarily authorized to receive freight for 
 the common carrier for transportation are officials at railroad 
 stations ; such as station agents, receiving clerks at the freight- 
 room, draymen of railroad companies, express companies or 
 steamboat companies who are employed to solicit or receive 
 freight at the business houses or other places about the city or 
 town where they do business; agents of steamboat companies,, 
 or shipping clerks at their offices and freight rooms, captains 
 or mates of vessels where the custom of the company has been 
 to allow them to receive shipments, baggage-masters of con- 
 necting carriers, and officers and agents of such carriers, and 
 servants of the different carrier companies employed by such 
 companies to solicit and receive freight for transportation for 
 their respective carriers.^ 
 
 § 439. Constructive delivery. — Thus far we have treated of 
 actual delivery. Delivery may be actual or constructive, but 
 constructive delivery of goods so as to bind the carrier and sub- 
 ject him to liability for their loss or injury will only be recog- 
 nized as sufficient in cases where, by the constant and usual 
 practice and usage of the carrier, such kind of delivery has been 
 permitted. If it has been the usual practice of the carrier — 
 for example, to receive goods delivered for shipment that are 
 left by the shipper upon the platform of their depot, or the 
 dock from which their ships are loaded, from all or from cer- 
 tain of their patrons, then such a delivery would be good and 
 sufficient to bind the carrier. But if there is no such custom or 
 usage or continued practice from which such acquiescence of 
 
 ' Blanohard v. Isaacs, 3 Barb, ity to receive goods for transporta- 
 
 (N. Y.) 388; Fisher v. Geddes, 15 La. tion. Porter v. Chicago R. Co., 41 
 
 Ann. 14 In Trowbridge v. Chapin, Iowa, 358. 
 
 23 Conn. 595, a trunk was delivered - Witbeck v. Schuyler, 44 Barb, 
 
 to one who was shown to be a deck (N. Y.) 469; State v. Frew, 34 W. Va. 
 
 hand. It was held that the servants 434. 
 of defendant had no general author- 
 
 26 401 
 
§ 439.] 
 
 OAREIEKS. 
 
 [PAET T. 
 
 the carrier iu like cases can reasonably be inferred, then 
 such delivery will not be suificient.^ "Where a warehouse re- 
 ceipt for the goods was delivered to the carrier, and the goods 
 to be transported by him were, before being removed from 
 the warehouse, destroyed by fire, it was held not to be such a 
 delivery as would create the extraordinary liability which 
 usually attaches to the common carrier.^ 
 
 1 Witzler v. Collins, 70 Me. 390-299, 
 35 Am. Rep. 327, held " there can be 
 no constructive delivery of goods so 
 as to bind the owner for their car- 
 riage except at such places where 
 by constant practice and usage they 
 have received property left for trans- 
 portation. That can only be vyhen 
 by the constant practice and usage 
 of the carrier he receives property 
 left for transportation at a particular 
 place." Citing 1 Chitty on Car., 686, 
 note. 
 
 2 Stewart, Ralph & Co. v. Gracy & 
 Bro., 98 Tenn. 314-330. The court say: 
 " A contract with a common carrier 
 for the transportation of property 
 being one of bailment, it is necessary, 
 in order to charge him for its loss, 
 that it be delivered to and accepted 
 by him for that purpose. But such 
 acceptance may be actual or con- 
 structive. If, for instance, the prop- 
 erty be deposited at a designated 
 station, in fi,ccordance with a conven- 
 tional arrangement between the par- 
 ties in respect to the mode of deliv- 
 ery, or if it be deposited with a third 
 person who is authorized by the car- 
 rier to execute a bill of lading in the 
 name of the carrier, then such mode 
 of delivery is as complete as if the 
 property had been actually deposited 
 with the carrier." To this efifect was 
 Deming v. Merchants', etc. Co., 6 
 Pick. 306. See also Hutchinson on 
 Carriers, sees. 1, 79, 83; Watson v. 
 Railroad Co., 9 Heisk. 235." Mis- 
 souri Pao. R. Co. V. McFadden, 154 
 U. S. 160: "The elementary rule is 
 that the liability of the common car- 
 rier depends upou the delivery to 
 
 him of the goods which he is to carry. 
 This rule is thus stated in the text- 
 books: ' The liability of a carrier be- 
 gins when the goods are delivered to 
 him or his proper servant authorized 
 to receive them for carriage.' Red- 
 field on Carriers, 80. ' The duties and 
 the obligations of the common car- 
 rier with respect to the goods com- 
 mence with their delivery to him, 
 and this delivery must be complete, 
 so as to put upon him the exclusive 
 duty of seeing to their safety. The 
 law will not divide the duty or the 
 obligation between the carrier and 
 the owner of the goods. It must rest 
 entirely upon the one or the other; 
 and until it has become imposed 
 upon the carrier by a delivery and 
 acceptance he cannot be held re- 
 sponsible for them." Hutchinson on 
 Carriers, 82. This doctrine is sanc- 
 tioned by a unanimous course of 
 English and American decisions. 
 Schooner Freeman v. Buckingham, 
 18 How. 182; The Lady FrankUn, 8 
 Wall. 325; The Delaware, 14 Wall. 
 579; Pollard v. Vinton, 105 U. S. 7; 
 Iron Mountain Ry. Co. v. Knight, 122 
 U. S. 79; Friedlander v. Texas & 
 Pao. R. Co., 130 U. S. 423; St. Louis, 
 Iron Mountain, etc. R. Co. v. Com- 
 mercial Union Ins. Co., 139 U.S. 233; 
 Barron v. Eldridge, 100 Mass. 455; 
 Moses V. Boston & Maine E. Co., 4 
 Fost. (24 N. H.) 71; Brind v. Dale, 8 
 Car. & P. 307; Seway v. Holloway, 1 
 Ld. Raym. 46; Buckman v. Levi, 3 
 Camp. 414; Leigh v. Smith, 1 Car. & 
 P. 638; Grant v. Norway, 10 C. B. 
 665; Hubbersty v. Ward, 8 Exoh. 
 330. Indeed, the citations might be 
 
 403 
 
CH. III.] ESSENTIALS THAT FIX LIABILITY. [§ 440. 
 
 § MO. Rules permitting constructive delivery must be 
 applied with great caution. — The aim and object of the law 
 is to measure out to both the public and the carrier equal and 
 exact justice. The public are to be served and furnished ample 
 accommodations, at least to the extent of the ability of the 
 carrier; on the other hand, the carrier should not be imposed 
 upon by putting upon him unreasonable requirements, or sub- 
 jecting him to liability by slack and unbusiness-like ways on 
 the part of the shipper. As we have seen, constructive deliv- 
 ery depends very materially, if not entirely, upon the usage, 
 custom and usual course of business of the shipper and the 
 carrier. Has it been the long-continued, accepted course of 
 business in the particular case to so deliver the freight, and 
 has it been accepted by the carrier ? Has the particular serv- 
 ant been allowed to so receive the freight for the carrier ? Has 
 freight, by the long, uninterrupted usage of the carrier with 
 the particular shipper or with the public, been received and 
 shipped when left at the particular place, by the roadside, or 
 on the platform or dock, or when delivered to the captain or 
 mate? If these questions can be affirmatively answered ac- 
 cording to the proofs, then, as we have seen, the delivery is 
 sufficient. But great caution should be observed in determin- 
 ing these questions.' 
 
 multiplied indefinitely. Whilst the court say: "It is not claimed that 
 
 authorities may differ upon the point defendant would be liable without a 
 
 of what constitutes delivery to a delivery, either actual or construct- 
 
 carrier, the rule is nowhere ques- ive, of the property to its agent or 
 
 tioned that when delivery has not servant. That a delivery may be 
 
 been made to the carrier, but, on the made at the proper place of reoeiv- 
 
 contrary, the evidence shows that ing such baggage, under the express 
 
 the goods remained in the possession assent or authority of the carrier, 
 
 of the shipper or his agent after the without notice to its employees, will 
 
 signing and the passing of the bill of not, we presume, be disputed. It is 
 
 lading, the carrier is not liable as equally clear upon principle that this 
 
 carrier under the bill. Of course, assent may be presumed from the 
 
 then, the carrier's liability as such course of business or custom of the 
 
 will not attach on issuing the bill in carrier. Upon evidence of this char- 
 
 a case where not only is there a fail- acter, contracts based upon business 
 
 ure to deliver, but there is also an transactions are constantly estab- 
 
 understanding between the parties lished. The citation of authority is 
 
 that delivery shall not be made till not required to support this position, 
 
 a future day, and that the goods See Marriam v. Hartford & N. H. R. 
 
 until then shall remain in the cus- Co.. 20 Conn. 354." 
 tody of the shipper." In Green v. i Hutchinson on Carriers, sec. 93. 
 Milwaukee R. Co., 38 Iowa, 100, the 
 
 403 
 
CHAPTER IV. 
 
 CARRIERS OF GOODS — FIXING THE LIABILITY OF THE CARRIER. 
 
 441. The object of the chapter. 
 443. What must the carrier receive 
 and carry. 
 
 443. Reasonable regulations. 
 
 444. Other legal excuses for 
 
 refusing to receive goods. 
 
 445. Carrier may fix time and 
 
 place for receiving. 
 
 446. That the carrier has no facil- 
 
 ities for carrying the goods. 
 
 447. Extraordinary occasions. 
 
 Press of business. 
 
 448. Carrier not permitted to arbi- 
 
 trarily refuse to receive and 
 ship. 
 
 § 449. Equitable proceedings to en- 
 force the receiving and ship- 
 ping of freight. 
 
 450. Acceptance by the carrier, 
 
 451. When delivery and accept- 
 
 ance completed. 
 
 452. A bill of lading or receipt not 
 
 a requisite to bind carrier. 
 
 453. Action for refusal to accept 
 
 and transport goods. 
 
 454. Tender of the goods and pay- 
 
 ment of freight. 
 
 455. Who may sue. 
 
 456. The liability. 
 
 457. Duty to provide proper ve- 
 
 hicles. 
 
 § 441. The object of the chapter. — The goods being de- 
 livered or offered by the shipper for carriage to the carrier 
 suggests the questions as to what must he receive, and in case of 
 refusal how can the duty be enforced. The discussion of these 
 questions is the object of this chapter. 
 
 §442. What must the carrier receive and carry. — The 
 general rule is that it is the duty of the common carrier to re- 
 ceive the goods and property of all who offer them for carriage 
 and comply with the usual requirements. This general rule, 
 however, is subject to many limitations, some of which have 
 already been mentioned, notably one, that the goods and prop- 
 erty must be of the kind that is within the line of business in 
 "which the carrier is engaged, or in the line of goods or prop- 
 erty he holds himself out to carry, or which, from all the cir- 
 cumstances, the carrier is reasonably expected by the public to 
 carry. He is a quasi-Tpnhlic servant, subject to the demands of 
 the public, and the law and public policy will call upon him to 
 at all times respon.d to such demands if within the scope and 
 line of his business as a carrier. But for all he is thus subjected 
 
 404 
 
CH. IV.] FIXING LIABILITY. [§§ 443, 444. 
 
 to the demands of the public, and for all he is thus bound to 
 carry, as a general rule, all of the freight or property that is 
 tendered to him for carriage and that is within the line of his 
 particular business, there are exceptions and limitations which 
 are suggested by public policy as well as by the common judg- 
 ment of men, and to meet some of these exceptions and limita- 
 tions the carrier is permitted to make reasonable regulations 
 as to the carriage of goods that are presented to him for trans- 
 portation. 
 
 g 443. Reasonable regulations, — Eeasonable rules and 
 
 regulations may be made applicable to all departments of 
 the business of the common carrier. For example, it has been 
 held that he may make regulations as to the manner in which 
 the goods presented for shipment shall be packed or prepared 
 for shipment, and this rule seems entirely reasonable,^ for it is 
 not dilBcuIt to understand that it would be necessary and only 
 just to the carrier that certain kinds of goods should be prop- 
 erly prepared for shipment. For example, the carrier may re- 
 quire that crockery or hardware shall be crated; that hay shall 
 not be shipped loose but shall be baled ; that furniture or ma- 
 chinery shall be put in racks ; that money shall be put in sealed 
 packages; that all goods and property shipped shall be prop- 
 erly marked and directed to the consignee and to the place of 
 destination, and that animals shall not be transported except 
 there be an attendant to care for them en route. And so it 
 follows that the carrier may refuse to receive such like prop- 
 erty for transportation unless the shipper has complied with 
 these reasonable regulations.^ 
 
 § 444. Other legal excuses for refusing to receive 
 
 goods. — And so a carrier may refuse to receive goods for ship- 
 
 1 Hutchinson on Carriers, § 113; in the same case it was further held 
 Union Ex. Co. v. Graham, 26 Ohio St. that " where one whom a steamboat 
 595. carrier had permitted to act as its 
 
 2 In Seasongood v. Tenn. & O. Tr. agent in receiving freight for such 
 Co., 54 S. W. 193, it was held "that a a length of time as to justify the be- 
 steamboat carrier was liable for the lief that he was an authorized agent 
 loss by theft of goods temporarily wrongfully refused to receive freight 
 stored in its warehouse upon its offered, tlie carrier cannot escape 
 wrongful refusal to receive them for liability on the ground that he had 
 shipment, the shipper having had no no authority to receive freight for 
 reasonable opportunity to make a shipment." 
 
 safer disposition of the goods." And 
 
 405 
 
§ 444.J 
 
 OAEEIEES. 
 
 [part t. 
 
 ment where the packages lead him to suspicion that they may 
 contain dangerous or explosive articles which would expose 
 the carrier or his servants to danger, if the shipper refuse to 
 allow the carrier to make an examination and to satisfy him 
 that the goods are fit for shipment. Indeed, it is held to be 
 the duty of the carrier under such circumstances to satisfy 
 himself that the goods are not of a dangerous kind, unfit and 
 dangerous to be handled by the servants of the carrier.' So if 
 the goods are infected with contagious diseases, or if to receive 
 or transport them would 'occasion a riot, or where the prop- 
 erty is such that the law prohibits its being carried,^ or where 
 the goods are perishable and the carrier has no means of 
 immediate transportation, in such cases he may refuse to carry 
 the property, but should notify the shipper that he cannot 
 carry it, that he may ship it by some other carrier, or dispose 
 of it as he sees fit.' And so it has been held that where the 
 line of road was under military control, the carrier would be 
 excused from receiving freight to be transported over it, as he 
 does not control the road;* 'or whenever for any reason the 
 
 1 Nitroglycerine Case, 15 Wall. 
 (U. S.) 524; Boston, etc. R. Co. v. 
 Shanly, 107 Mass. 568. In the Nitro- 
 glycerine Case, above cited, the court 
 say: "The case cited from the com- 
 mon pleas reoognize.s the right of the 
 carrier to refuse to receive packages 
 offered vi'ithout being made ac- 
 quainted vpith their contents when 
 there is good ground for believing 
 that they contain anything of a dan- 
 gerous character. It is only when 
 such grounds exist arising from the 
 appearance of the package or other 
 circumstances tending to excite his 
 suspicion that the carrier is author- 
 ized, in the absence of any special 
 legislation upon the subject, to re- 
 quire a knowledge of the contents of 
 the packages offered as a condition of 
 receiving them for carriage. Crouch 
 V. London & Northwestern R Co., 9 
 Exoh. 556; Brass v. Braitland, 6 El. 
 & Bl. 485." 
 
 2 Where by statute the importation 
 of goods of a certain character is 
 
 prohibited, as, for example, intoxi- 
 cating liquors, the carrier may refuse 
 to receive them, and it has been held 
 that while the carrier was made lia- 
 ble by statute for carrying such ar- 
 ticles, it would be no answer for him 
 to allege that he had no right to re- 
 fuse to carry goods tendered. State 
 V. Goss, 59 Vt. 266, 59 Am. Eep. 706. 
 In Milwaukee Malt Extract Co. v. 
 Chicago, etc. R. Co., 73 Iowa, 98, it 
 was held that where the plaintiff had 
 tendered to defendant for shipment 
 a known intoxicating beverage which 
 was labeled beer, and which thecom- 
 -pany refused, because of the laws of 
 Iowa which prohibited the importa- 
 tion of intoxicating liquors, it was 
 held that the action could not be 
 maintained for such refusal, al- 
 though the beverage may not have 
 been intoxicating, the shipment hav- 
 ing been marked beer. 
 
 3 Tierney v. New York Cent E. Co., 
 76 N. Y. 305. 
 
 i Illinois Cent. E. Co. v. Cobb, 64 
 
 406 
 
OH. IV.] FIXING LIABILITY. [§§ 445, 446. 
 
 goods are unfit for transportation, or wbere the shipper re- 
 fuses to pay the compensation for transportation. But should 
 the carrier accept the goods for transportation in cases where 
 he might properly have refused to receive them, he will be held 
 to have waived his reasonable and legal excuse for not receiving 
 them, and thus become liable for any loss of or injury to the 
 property, the same as in case of other goods; in other words, 
 he will be held to have waived his special exemption from lia- 
 bility.i 
 
 § 445. Carrier may fix time and place for receiving. 
 
 When the goods have been received by the carrier for immedi- 
 ate transportation the extraordinary liability of a common car- 
 rier is at once fixed upon ; there is, therefore, good reason for 
 holding that the carrier should fix a proper time and place for the 
 receiving of the goods and for releasing him from any liability 
 in case the goods are not delivered. It is therefore considered 
 to be a reasonable regulation that the shipper shall offer the 
 goods at a reasonable time and place fixed by the carrier.^ And 
 where goods are not so offered, and such reasonable regula- 
 tions not complied with, the common carrier is not liable for 
 loss of or injury to the goods. 
 
 § 446. That the carrier has no facilities for cari'ying the 
 goods. — From the definition of a common carrier it will be 
 noticed that this limitation is recognized: that he is only bound 
 to carry goods to the extent of his ability. While this is true, 
 there is, however, a very important duty laid upon the carrier 
 by way of requiring him to equip himself for the business he 
 has in hand ; he must furnish equipment reasonably commen- 
 surate with the well-understood and apparent demands upon a 
 carrier operating in the particular locality and in the partic- 
 ular line of goods in which he is engaged. The railroad oper- 
 ating a line of road through a populous manufacturing and agri- 
 cultural country must have equipment that is reasonably and 
 properly demanded in order to handle the shipments of freight 
 from such a country, and if after a reasonable time has elapsed 
 
 111. 128; Illihois Cent. R Co. v. tion R. Co., 13 M. & W. 766; Hutch. 
 Schwartz, 13 111. App. 490. on Car., sec. 117. 
 
 1 The David & Caroline, 5 Blatchf. 2 Cronkite v. Wells, 33 N. Y. 347; 
 (U. S.) 266; Pickford v. Grand June- Louisville R. Co. v. Flannigan, 113 
 
 Ind. 488. 
 407 
 
§ 447.] CAEEIEES. [part T. 
 
 the carrier fails to supply such equipment, and because of 
 this a shipper is damaged, there can be no question that the 
 carrier would be liable in an action for such damage;' and it 
 has been held that the courts may compel, hj mandam.us, the 
 carrier to furnish cars and facilities for the shipment of freight 
 and property tendered for shipment. In State ex rel. etc. v. 
 Texas, etc. li. Co? it was held : " While it is true that the court 
 has no legal right to manage a railroad, or direct the details 
 of its operation, or make contracts for the railroad company, 
 it may issue a writ of mandamus to compel it to perform a duty 
 clearly defined under the law." And therefore may compel it by 
 mandamus to furnish cars and facilities to distribute poles along 
 a^ telegraph line which is to run parallel and adjacent to the right 
 of way of the railroad company. 
 
 § 447. Extraordinary occasions — Press of business. 
 
 It is the ordinary requirements, and not the extraordinary, that 
 measure the legal duty of the carrier to receive and transport 
 the goods of all who call upon him and offer their goods for 
 transportation. It has been said that " the amount of business 
 ordinarily done by a railroad is the only _proper measure of 
 its obligations to furnish transportation. If by reason of a sud- 
 den and unusual demand for stock or produce in the market, 
 or for any other cause, there should be an unexpected influx of 
 business to the railroad, this obligation will be fully met by 
 shipping such stock or produce in the order and priority of 
 time in which it is offered, so as to afford a reasonabk amount 
 of accommodation for all. While it may be difficult to lay dowu 
 any general rule upon this subject, satisfactorily accurately in its 
 terms, to cover all business that may possibly occur, still it can 
 be approximated by saying that its means of transportation 
 must be so distributed at the various stations for receiving pas- 
 sengers and freight along the entire line of road as to afford a 
 
 O DO 
 
 reasonable amount of accommodation for all."' And so a rail- 
 
 1 In 111. Cent. R. Co. v. Cobb, 64111. 2 53 La. An. 1850,' 28 So. 284; In- 
 
 128, it was held that the company man v. Railroad Co., 14 Tex. Civ. App. 
 
 ■was liable for a delay in the trans- 39. 
 
 portation of goods in consequence of ■* Ballentine v. M. N. R. Co., 40 Mo. 
 lack of cars or other facilities unless 491-500. In Mich. Cent. E. Co. v. Bur- 
 it could show good cause for the de- rows, 33 Mich. 6, it appeared that the 
 lay. Chicago R. R. Co. v. Thrapp, .5 plaintiff on the 10th of November, 
 111. App. 503. 1871, shipped four carloads of apples 
 
 408 
 
CH. IV.J 
 
 FIXING LIABILITY. 
 
 [§ 44T. 
 
 road company which is required to satisfactorily meet the or- 
 dinary demands upon it, to receive and carry the freight with 
 out delay that is offered, is not bound to receive freight which 
 it cannot carry because of a temporary press and demand of 
 business occasioned by some unusual and unlooked for occur- 
 rence which the carrier could not prevent. The carrier. 
 
 ■consigned to agents at Minneapolis; 
 there the apples were consigned to 
 the next carrier, November 17th, and 
 arrived in Minneapolis November 
 22d, injm-ed by frost while in transit. 
 The action was for damages. It also 
 appeared that the great Chicago fire 
 occurring October, 1871, destroyed 
 the tracks, freight houses, depot and 
 other facilities of the plaintiff and 
 brought about a great demand for 
 the shipment of goods for relief of 
 the Chicago fire sufferers, and that 
 these shipments were given prefer, 
 etice to any other shipment; that on 
 account of this the road was greatly 
 blocked by an accumulation of 
 freight, and for this reason the 
 freight in question was delayed. The 
 court held: "The law is not so harsh 
 and unjust as to punish a common 
 carrier who makes such a discrimi- 
 nation under the circumstances, but 
 rather commends and approves what 
 was done. While, therefore, it may 
 be true, as a general proposition, that 
 it was the duty of the company to 
 forward freight in the order in which 
 it was received, yet in this case there 
 was a great public necessity to which 
 all general rules must bend, making 
 it the imperative duty of the com- 
 pany to give relief goods a prefer- 
 ence. 'The law itself, and the ad- 
 ministration of it,' said Sir W. Scott 
 (3 Dods. 333-24), 'must yield to that 
 to which everything must bend — to 
 necessity. The law, in its most posi- 
 tive and peremptory injunctions, is 
 understood to disclaim, as it does in 
 its general aphorisms, all intention 
 of compelling to impossibilities, and 
 
 the administration of laws must 
 adopt that general exception in the 
 consideration of all particular cases. 
 In the performance of that duty it 
 has three points to which its atten- 
 tion must be directed. In the first 
 place it must see that the nature of 
 the necessity pleaded be such as the 
 law itself would respect, for there 
 may be a necessity which it would 
 not. A. necessity created by a man's 
 own act, with a fair previous knowl- 
 edge of the consequences that would 
 follow, and under circumstances 
 which he had then a power of con- 
 trolling, is of that nature. Secondly, 
 that the party who was so placed 
 used all practical endeavors to sur- 
 mount the difSculties which already 
 formed that necessity, and which, on 
 fair trial, he found insurmountable. 
 I do not mean all the endeavors 
 which the wit of man, as it exists in 
 the acutest understanding, might 
 suggest, but such as may reasonably 
 be expected from a fair degree of 
 discretion and an ordinary knowl- 
 edge of business. Thirdly, that all 
 this shall appear by distinct and un- 
 suspected testimony; for the positive 
 injunctions of the law, if proved to 
 be violated, can give way to nothing 
 but the clearest proof of the necessity 
 that compelled the violation.' And 
 it is also said to be a general rule, ad- 
 mitting of ample practical illustra- 
 tion, ' that where the law creates a 
 duty or charge, and the party is un- 
 able to perform it without any de- 
 fault in him, and has no remedy over, 
 there the law will in general excuse 
 him.' " 
 
 409 
 
§g US, 449. J OAEEIEKS. [PAET Y. 
 
 under such circumstances, however, should inform those bring- 
 ing freight for carriage of his condition; that he is unable 
 to carry without delay; and that if left the goods will have 
 to wait their order for shipment and until other freight on hand 
 for carriage is shipped, thus affording the shipper an option to 
 leave the goods upon the condition named or take them to an- 
 other carrier. 
 
 § 448. Carrier not permitted to arbitrarily refuse to re- 
 ceive and sliip. — When the shipper has done all that by the 
 law and the reasonable regulations of the company he is bound 
 to do by way of delivering the goods for shipment, the car- 
 rier cannot arbitrarily refuse to accept and transport them. 
 The law will assume that the freight is in his possession and 
 control, and he will be held for its safe custody and ship- 
 ment; and in such case if the carrier should refuse, and an ac- 
 tion at law for damages would not be an adequate remedy, a 
 court of equity could no doubt be successfully invoked and the 
 carrier compelled to transport the goods. 
 
 § 449. Equitable proceedings to enforce tbe receiving and 
 shipping of freight. — A rule of law well settled in the law 
 of carriers is that the carrier is not permitted to make unjust 
 and discriminating preferences by way of receiving and trans- 
 porting freight; the general rule is that all must enjoy the 
 same privileges and be subject to the same proceedings. This 
 applies '.o the matter of receiving the goods for shipment as 
 well as to their transportation, and when the company makes 
 unjust discriminations, and the shipper has no adequate remedy 
 at law for the redress of such wrongs, a court of equity Avill 
 take jurisdiction and by its decree determine the equitable rights 
 of the parties. This question was before the court in the case 
 of Rogers Locomotive, etc. ^Vorhs v. Erie R. Co} It was claimedi 
 on the part of the complainant that there was a combination 
 between the railroad company and certain other of its directors 
 to organize the " Union Locomotive Express Company," with 
 power to forward and carry locomotives and other property, 
 and that by reason of this the shipping rates of the locomotives 
 of the complainant were very much increased; that by the law 
 granting defendant railroad their franchise, they were bound 
 to receive and ship the locomotives of the complainant and 
 
 120N. J. Ch. 379. 
 410 
 
OH. IV.] FIXING LIABILIXT. [§ 450. 
 
 others at a reasonable rate, which was very much less than the 
 rate of shipment by the express company, claiming that there 
 was an unlawful combination to increase the rates. The court 
 said: "If the allegations of the bill are true, and they are sup- 
 ported by the affidavits annexed, and are not denied by answer 
 or affidavit, they present a flagrant case of refusal to perform 
 the duties imposed upon it by law, and for which its franchises 
 were granted, by a corporation public in its object and almost 
 such in its character. Kailway companies have delegated to 
 them as part of their franchises much of the sovereign power 
 of the state, in consideration of their discharging part of what 
 are the proper duties of the government, that is providing the 
 means of commerce and intercourse by constructing the roads 
 which are the avenues of that commerce. The injury 
 
 to the complainant, too, is of that nature, that while there may 
 be a remedy at la^, as by recover^'' of damages for injury, yet 
 is such that cannot be adequately relieved by suits for dam- 
 ages. It is continually recurring, and will require continued 
 and repeated suits, and continued litigation, and the expenses 
 of each suit Would make the recovery of the excess paid an 
 inadequate remedy." 
 
 After a thorough discussion of the question the court de- 
 creed that an injunction be issued to restrain the parties from 
 in any way preventing or hindering the railroad company 
 transporting complainant's locomotives.^ 
 
 § 450. Acceptance by the carrier. — As a general rule, the 
 delivery of the goods must be followed by an acceptance, either 
 actual or implied, upon the part of the carrier or his duly au- 
 thorized agents. But it may be said that before this can occur, 
 except in cases where constructive delivery may be made, the 
 attention of the carrier or his duly authorized agents must 
 be called to the delivery of the property. The acceptance, 
 in other words, will not be said to have taken place unless 
 there is knowledge upon the part of the carrier that the goods 
 are delivered into his custody and control for transportation, 
 or unless at least such facts and circumstances are brought 
 to the attention of the carrier as would justify the conclusion 
 that he ought to have known that the goods had been deliv- 
 ered. An acceptance by the carrier will, however, waive any 
 
 1 Stock Yard Co. v. Louisville R. Co., 67 Fed. 35, 31 U. S. App. 352. 
 
 411 
 
•§§ 451, 452.] CAEEIEES. [PAET V. 
 
 defects in the manner of the delivery of the goods. Where a 
 package was delivered to the agent of a stage-coach company 
 at the postoffice where the stage was standing, and not at the 
 office of the company, and was by the agent, when received, 
 entered on the way-bill, the agent having previously directed 
 the person who had the care of the package to bring it to the 
 postoffice, and the package having been lost before reaching 
 its destination, it was held the owners of the coach were liable 
 to the owner of the package for its value, the delivery at the 
 postoffice having bfeen with the assent of their agent.' 
 
 § 151. When delivery and acceptance completed.— The 
 delivery to and acceptance of the goods by the common carrier 
 at once fixes the liability of the carrier; the custody and con- 
 trol of the goods are transferred to him. Just when this chanofe 
 takes place it is sometimes difficult to prove, but it may be gen- 
 erally said that when the shipper has done all that he can do 
 to effect the shipment of the goods, and has released his pos- 
 session and control by actual dejivery or such constructive de- 
 livery as is legal and sufficient, then the delivery and accept- 
 ance is complete and the carrier's liability at once attaches. 
 
 § 452. A bill of lading or receipt not a reqnisite to bind 
 carrier. — A bill of lading or receipt from the carrier to the 
 shipper, although it is usual Ij^ given, and the course of busi- 
 ness would hardly seem satisfied until such a bill or receipt 
 had been delivered, is, however, not a requisite to a full and 
 complete delivery. It may be said that it is but the evidence 
 of such a delivery; but if no such receipt or bill has been de- 
 livered to the shipper upon the receipt of the goods for trans- 
 portation, it may nevertheless be shown by parol proof that 
 the goods have actually been delivered and the carrier has 
 actually received them for shipment; and so well fixed and set- 
 tled is this rule, that where by statute it was made compulsory 
 upon the carrier to give to the shipper a receipt for the goods 
 or a bill of lading, the delivery and acceptance being complete 
 and no receipt or bill of lading having been given, it was held 
 the carrier was liable.^ 
 
 1 Phillips V. Earle et al.. 8 Pick. 182. riam v. Railroad Co., 20 Conn. 354; 
 There must be acceptance. Hutch- Converse v. Transportation Co., 33 
 inson on Carriers, sec. 87; Cronkite Conn. 166; Green v. Railroad Co., 38 
 V. Wells, 31 N. Y. 2-17. Acceptance Iowa, 100. 
 
 may be actual or constructive. Mer- ^ Montgomery & Co. v. Kolb, 73 
 
 412 
 
OH. IV.J FIXING LIABILITY. [§ 452, 
 
 Where goods were delivered on board a vessel at New- 
 York to be carried to England, " were receipted for, the receipt 
 specifying the price of freight, but before bills of lading were 
 executed, and before the ship sailed, she was burned with the 
 goods on board without any actual negligence on defendants'' 
 part, the defendants were held liable as common carriers for 
 the loss of the goods." ^ And where the shipper loaded goods 
 into a car furnished by the carrier for the purpose of the par- 
 ticular shipment, the agent of the company assenting thereto, 
 it was held that the goods were as much in the possession of 
 the carrier as though they had been delivered at its warehouse 
 for shipment. Such goods so delivered, having been destroyed 
 by fire before the bill of lading had been made out, the carrier 
 was held liable; the liability having attached from the time of 
 accepting the goods for transportation.^ 
 
 And in Shelton v. Merchants' Transportation Go? it was held 
 that when goods were delivered to a carrier marked with the 
 name and address of the assignee, the common-law liability at- 
 taches even though no contract or bill of lading was given the 
 shipper. Upon the delivery of the goods in the warehouse of 
 the carrier with the name of the assignee and place of desti- 
 nation, the agent of the carrier having notice of such delivery, 
 and that it is for the purpose of transportation as marked, all 
 is done that the shipper can do; the goods are in the possession 
 and Control of the carrier; they are actually, as we have seen, 
 in transit, and the liability as common carrier attaches at once, 
 and the mere failure or even refusal of the agent of the carrier 
 to give and deliver to the shipper a bill of lading or a receipt 
 for the goods will not relieve the carrier from liability at least 
 
 Ala. 396. Held, "where the statute The Water Witch, 4 Fed. Cas. No. 
 
 makes it the duty of the common 1,971. A carrier is liable for goods 
 
 carrier to give a receipt for the mer- from the time they are shipped, al- 
 
 chandise delivered to them for trans- though the bill of lading may be 
 
 portation, their failure to do so can- actually signed subsequent to the 
 
 not vary their liability if delivery is loss. Snow et al. v. Carruth et al., 
 
 sufficiently shown." A master who 32 Fed. Cas. No. 13,144. 
 
 receives goods on board his vessel i Lakeman v. Grinnell, 18 N. Y. 
 
 and carries them to their destination Sup. Ct. (5 Bosw.) 62.5. 
 
 subjects the vessel to the common- ^Illinois Cent. R. Co. v. Smyser, 38- 
 
 law liability of a carrier, though 111. 354; Toledo R Co. v. Gilvin, 81 
 
 there is no bill of lading or other 111. 511. 
 
 agreement entered into. Brower v. 8 36 N. Y. Sup. Ct. 527. 
 
 413 
 
§ § 453, 45 i.J CAEEIEES. [PAET V. 
 
 for ordinary diligence;^ but the receipt for the goods, or that 
 part of the bill of lading which is held to be a receipt, given 
 by the common carrier to the shipper on delivery of the goods, 
 may be varied or even contradicted by parol proof. So, in 
 case no goods were actually delivered, although a bill of lad- 
 ing was made out and delivered to the shipper, the carrier can- 
 not be held liable upon it for the goods described or receipted 
 in it.2 
 
 § 453. Action for refusal to accept and transport goods.— 
 This subject has already been somewhat considered,' but, in 
 discussing the subject of delivery, the duty of the shipper in 
 that respect, the accepting and transporting of property, it 
 seems necessary to call attention to some requisites to the sus- 
 taining of an action for failure of the carrier to perform his duty. 
 In order to sustain an action against the carrier for refusal to 
 receive and transport the goods, it will at once occur to the 
 reader that the following requisites on the part of the shipper 
 and carrier must be observed: (1) A tender of the goods; 
 (2) payment of the freight if demanded, and if not, an oifer or 
 willingness to pay; (3) an ability to receive and transport the 
 goods. 
 
 §454. Tender of the goods and payment of freight.— It 
 has been said that in order " to sustain an action against a rail- 
 road company for non-transportation of freight there must be 
 evidence of a tender on the part of the plaintiff, or of a will- 
 ingness to pay the customary price of such carriage. But it 
 has been generally held that the payment of the freight is not 
 necessary to sustain an action against a carrier for refusing to 
 carry or delay in carrying freight unless it is required by the 
 
 1 Aiken v. Chicago, etc. R Co., 68 A. 863. . "A carrier's duty is not lim- 
 lowa, 363, 25 Am. & Eng. R, Cases, ited to the transportation of goods 
 377; Cragin v. N. Y. Cent. R. Co., 51 delivered for carriage. He mustex- 
 N. Y. 63. " A shipper's knowledge ercise such diligence as is required 
 of directions to the carrier's agent by law to protect the goods from de- 
 uot to receive certain articles for struotion and injury from any 
 transportation will not relieve the source which may be averted, and 
 carrier from liability if their trans- which in the exercise of care and 
 portation is actually undertaken." ordinary intelligence may be known 
 Bennett v. American Trans. Co., 83 or anticipated." Beard v. 111. Cent. 
 Me. 236. R. Co., 79 Iowa, 518, 7 L. R. A. 280. 
 
 2 National Bank of Commerce v. 8 Ante, § 430. 
 Chicago R. Co., 44 Minn. 324, 9 L. R. 
 
 414 
 
CH. IV.J FIXING LIABILITY. [§§ 455, 456. 
 
 carrier.'" But where an action was brought for a refusal on 
 the part of the carrier to transport coal, it was held that " a 
 refusal of the carrier to transport the coal does not, in the ab- 
 sence of the actual tender of a definite amount for transporta- 
 tion, amount to a waiver of such tender so as to subject the 
 -carrier to liability for loss of business caused by relying upon 
 such refusal."^ 
 
 § 455. Who may sue. — The action, as will be seen, must 
 necessarily arise from the business transacted between the 
 shipper and the railroad company. It is because of the refusal 
 of the railroad company to receive the goods for transporta- 
 tion from the shipper that the suit is commenced; therefore it 
 follows that the parties directly in interest are the shipper and 
 the carrier; it is therefore the holding of the courts that the 
 refusal of the carrier to take goods for a particular assignee is 
 in violation of an obligation to the shipper, and not to the con- 
 signee, and that an action therefor for damages by the con- 
 signee would not lie; that the proper plaintiff would be the 
 shipper.' 
 
 § 456, The liability. — The action, it will be remembered, 
 is for refusing to receive and transport the goods. In this case 
 the carrier does not receive the property into his custody and 
 control. The property is merely left with the shipper; it 
 tvould therefore follow that the extraordinary liability which 
 the common law places upon the carrier could not attach in 
 this case, for in order that the carrier be liable for the extraor- 
 dinary liability, he must have received the goods into his cus- 
 tody and control; therefore the liability in such case is based 
 upon the question of actual damage that results to the shipper 
 by reason of the refusal to accept and transport the property.* 
 
 • Galena & Car. Co. v. Eae, 18 111. transportation of property should be 
 
 488, 68 Am. Deo. 574. such as to do justice and to award 
 
 2 Wilder v. Johnsburg & L. C. Ry. full compensation and no more to 
 
 Co., 66 Vt. 636, 30 Atl. 41. the party injured." And it was there 
 
 ' Lafaye v. Harris, 13 La. Ann. 553. held " that the true measure of dam- 
 
 *In Cobb, Blasdel & Co. v. I. C. R. age would be the difference between 
 
 Co., 38 Iowa, 601, 630, the conten- the price paid for the goods and the 
 
 tion, among other things, was as to price under their contract which was 
 
 the measure of damages, and it was with the government, less the freight 
 
 held "that the measure of damages to the point of destination." Bridge- 
 
 against the carrier for a violation of man v. Steamboat Emily, 18 Iowa, 
 
 his duty or act in respect to the 510; Jamison v. Gray, 29 Iowa, 537; 
 
 415 
 
§ 4r)7.] CAEEIEES. [PA'ET V. 
 
 § 457. Duty to provide proper vehicles. — After having re- 
 ceived the goods for shipment it goes without saying that it is 
 the duty of the carrier to furnish proper vehicles and proper 
 conveyance for the transportation of the freight. 'Now, what 
 would be proper vehicles is a question that must be determined 
 largely by the class of freight that is to be shipped. If a 
 railroad company is employed to transport railroad iron, a flat- 
 car is a very proper vehicle; on the other hand, such a car 
 would be very inappropriate if the freight were bales of hay 
 or kegs of powder, and in this connection the times and cus- 
 toms of the times will have something to do with the ques- 
 tion. In these days of refrigerator cars it would not be ex- 
 pected that a carrier would be excused if loss occurred on ac- 
 count of shipping dressed beef a long distance in a common 
 car, or in a refrigerator car without ice. Or, if he is shipping 
 fruit or other perishable property, if he fails to properly care 
 for it, according to modern usage in that respect; and where 
 strawberries were shipped from California to Xew York and 
 Philadelphia in a refrigerator car that was furnished to the 
 railroad company by a transportation company which agreed 
 to keep the goods properly refrigerated, but failed to do so, 
 and for lack of ice the berries were lost, it was held that the 
 railroad company was liable, and the agreement of the trans- 
 portation company could not be considered a defense.' And 
 
 Mioh. Southern R Co. v. Caster, 13 and expeditious carriage and preser- 
 
 Ind. 164; Toledo, W. & W. R. Co. v. vation of the freight it undertook to 
 
 Roberts, 71 111. 540; Louisville, etc. carry. A railroad company cannot 
 
 R. Co. V. Flannigan. 113 Ind. 488, 14 escape responsibility for its failure 
 
 N. E. 307; Ward's Cen. & P. Lake to provide cars reasonably fit for the 
 
 Co. V. Elkins, 34Mich. 439; O'Conner conveyance of the particular class of 
 
 V. Forster, 10 Watts, 418; Laurent v. goods it undertakes to carry by al- 
 
 Vaughan, 80 Vt. 90. leging that the cars used for the' 
 
 1 New York, etc. v. Cromvrell (Va.), purposes of its ovpn transit were the 
 
 49L. R. A. 462. The court say :" The property of another. The undertak- 
 
 California Fruit Transportation Com- ing of the plaintiff in error was to 
 
 pany, for a consideration, furnished properly care for and safely carry the 
 
 its cars to the plaintiff in error, fruit of the defendant in error, and 
 
 These cars were agencies or means it is immaterial that the oars in 
 
 employed by the plaintiff in error which they were carried were owned 
 
 for carrying on his business and per- by the California Fruit Transporta- 
 
 forming its duty to the public as a tion Company, or that such company 
 
 common carrier, one of which was undertook to ice said cars or to pay 
 
 to provide suitable cars for the safe for the ice. As between the plaintiff 
 
 416 
 
CH. IV.J FIXING LIABILITY. [§ 457. 
 
 SO where butter was received for transportation from a point 
 in Iowa to New Orleans, the butter was put into a refrigerator 
 car by the company receiving it and afterwards put into a com- 
 mon box-car, the second company having no refrigerator cars. 
 It was held that, notwithstanding this, the company was liable 
 for the loss of the butter; the court saying, " a carrier's duty is 
 not limited to the transportation of goods delivered for car- 
 riage. He must exercise such diligence as is required by law 
 to protect the goods from destruction and injury resulting 
 from conditions which, in the exercise of due care, may 
 be averted or counteracted. He must guard it from destruc- 
 tion or injury by the elements, from the effects of delay, in- 
 deed, from every source of injury which he may avert, and 
 which in the exercise of care and ordinary intelligence may be 
 known or anticipated. Unknown causes, or those which are 
 inherent in the nature of the goods, and cannot be in the ex- 
 ercise of diligence averted, will not render the carrier liable. 
 The nature of the goods must be considered in determining the 
 carrier's duty. Some metals may be transported in open cars. 
 Many articles of commerce when transported must be pro- 
 tected from rain, sunshine and heat, and must have cars fit for 
 their safe transportation. Live animals must have food and 
 water when the distance of transportation demands it. Fruit 
 and some other perishable articles must be carried with expedi- 
 tion and protected from frost. So the carrier must attend to 
 
 in error and defendant in error, the barge and its unfitness for holding 
 
 California Fruit Transportation Com- the cargo thus loaded, the wheat 
 
 pany and its employees were the was damaged. It was. held in this 
 
 agents of the plaintiff in error. So case that the carrier must know, at 
 
 far as the defendant in error was con- his own peril, the condition of the 
 
 cerned, the plaintiff in error was vehicle in which he carries the goods 
 
 under the same obligation to care for of the shipper, for the reason that 
 
 the fruit that it would have been had the owner of the cargo is under no 
 
 tile refrigerator cars belonged to it. obligation to look after this matter, 
 
 For t.hese reasons the judgment is and he has no means of obtaining 
 
 affirmed." In The Northern Belle, 9 any positive information if he should 
 
 Wall. 526, the court discussed the attempt it; that it is the duty of the 
 
 modern manner of loading grain carrier to furnish a vehicle which is 
 
 through conductors into the oars or entirely adapted to the particular 
 
 boats instead of putting it in sacks work; and when from any cause it 
 
 as was formerly done, the coaten- is not fit or not adapted to the carry- 
 
 tion being in the case that, on ac- ing of goods, and damage results, the 
 
 count of the unseaworthiness of the cai-rier will be liable. 
 37 417 
 
§ 457.] CAEEIEES. [part V. 
 
 the character of the goods he transports. He is informed 
 thereof by inspection of the freight bills, or by other papers 
 accompanying the shipment. In the case before us, the marks 
 on the baggage and the way-bill disclosed that the subject of 
 the shipment was butter. The employees of defendant were 
 endowed with intelligence which taught them that the season 
 was summer, when warm weather prevailed; that butter in 
 common cars would be greatly injured by the ordinary heat 
 of the climate, and that the butter as it approached its destina- 
 tion would be subject, by reason of the change of latitude, to 
 greatly increased heat from the weather. All of these things 
 are familiarly known to all men. Surely, the law will presume 
 that defendant's emploj^ees had full knowledge thereof. The 
 law required the defendant, having received the perishable 
 cargo involved in this suit, to exercise the care and diligence 
 necessary to protect it, and if improved cars for the transpor- 
 tation of articles of commerce liable to injury from heat were 
 in use, it was defendant's duty to use such cars in carrying the 
 butter." 1 
 
 And so the obligation or duty would be the same upon the 
 carrier in case it were necessary in the carrying of the goods to 
 preserve them from frost; and iu order that the carrier may 
 meet these requirements, he must provide himself with vehicles 
 that are appropriate for the carriage of the property he accepts 
 for transportation, and if he is negligent in the providing of 
 such vehicles and such improved facilities, be will be held 
 liable for any damage that may result because of such failure 
 or negligence. 
 
 1 Beard v. 111. Cent. R. Co., 79 la. Colo. 280; Hutchinson on Carriers, 
 510, 7 L. R. A. 280, citing numerous sec. 394; Steinway v. Erie R Co., 43 
 cases; Hewett v. Chicago, B. & Q. R. N. Y. 123; Boscowitz v. Adams Ex. 
 Co., 63 la. 611; Sager v. Portsmouth, Co., 93 111. 525; Hannibal & St. J. R 
 St. P. & E. R. Co., 31 Mo. 238; Haw- Co. v. Swift, 12 Wall. 263; Belliwell 
 kins V. Great Western R. Co., 17 v. Grand Trunk R. Co., 7 Fed. 76; Par- 
 Mich. 63; Railway Co. v. Pratt, 22 amore v. Western R. Co., 53 Ga. 385; 
 Wall. 133; Wing v. N. Y. & E. R. Co., Dixon v. Richmond & D. B. Co., 74 
 1 Hilt. (N. Y.) 241; Merchants' Dis- N. C. 538. 
 patch Transp. Co. v. Cornforth, 3 
 
 418 
 
CHAPTER V. 
 
 FIXING LIABILITY OF CARRIER— THE BILL OF LADING. 
 
 g 458. Description and office of the 
 bill of lading. 
 
 459. Its negotiability. 
 
 460. The consignor consigns goods 
 
 to himself. 
 
 461. The bill of lading with draft 
 
 attached. 
 
 § 462. 
 463. 
 
 464. 
 
 465. 
 
 Bill of lading as proof. 
 
 Authorities not entirely 
 
 harmonious. 
 
 Conclusiveness as to condi- 
 tion, weight, contents or 
 value. 
 
 By whom issued. 
 
 § 458. Description and office of tlie bill of lading.— The 
 
 bill of lading is both a receipt for the goods delivered for ship- 
 ment, from the common carrier to the shipper or consignor, 
 and a contract on the part of the carrier and the shipper tl^at 
 the carrier will transport the goods to their destination if on 
 its road, and if not, that he will deliver them to another car- 
 rier if there is such an one, who will carry them to their desti- 
 nation. To the bill of lading are generally attached the limita- 
 tions that the common carrier's demands shall be a part of the 
 contract. It is not necessary, in order to fix the liability of 
 the carrier, that he shall issue to the shipper a bill of lading, 
 but it is very important, as evidence of the acceptance of the 
 goods delivered for immediate transportation and as showing 
 when the relation commenced. This bill of lading also evi- 
 dences very largely the duty and liability of the carrier as to 
 the particular freight received for shipment while in transit, 
 and his duty at the termination of the route. It is often issued 
 in triplicate, a copy being kept by the carrier, the original 
 given to the shipper, together with a copy either to be kept by 
 the shipper or transmitted by him to the consignee. It is the 
 original bill of lading that is the most important. This original 
 is the bill that the common carrier will demand at the end of 
 the route before the delivery of the goods. 
 
 The bill of lading has another important office, and that is 
 as commercial paper or security. By it the carrier acknowl- 
 edges that he has received from the owner or shipper the 
 
 419 
 
§§ 459, 460.] CAEEIERS. [PAET V. 
 
 goods described for immediate transportation and that they 
 are consigned to the person therein named as consignee; be- 
 cause of this the bill of lading at once becomes valuable to the 
 consignee, its value being co-extensive with the value of the 
 goods shipped; for the carrier by it acknowledges not only 
 that he has the possession of the property for transportation, 
 but that he is in duty bound to deliver the property named in the 
 bill at its destination to the consignee therein named. The 
 bill thus becomes an evidence of ownership of the consignee, 
 coupled with the duty of the carrier to see that he receives 
 the property; and so the consignee may use the bill of lading 
 as property. 
 
 § 459. Its negotiability. — While, as we have seen in a for- 
 mer discussion, it is not negotiable paper in the sense of the 
 law merchant, it may, however, be transferred by indorsement 
 so as to become, in the hands of the consignee, or his order, a 
 claim for the delivery of the property ; that is to saj"^, it is not 
 commercial paper which will pass current as do promissory 
 notes, or that class of commercial paper which passes by in- 
 dorsement, but it is rather the title to the goods described in 
 it that passes. It stands for the goods themselves and not for 
 any particular amount of money. It is a claim for the deliv- 
 ery of the property from the carrier company; it is in the nat- 
 ure of a ^-Masi-negotiable instrument. It is upon the theory 
 that the common carrier can satisfy his contract and obliga- 
 tion onlj' by delivering the property to the person or company 
 who presents the bill of lading, and then only by following 
 the instructions of the shipper that the carrier is bound to 
 follow. 
 
 §460. The consignor consigns goods to himself. — The 
 shipper, in order to protect himself, often consigns the goods 
 to himself, this giving him the privilege to control the deliv- 
 ery of the property at the end of the route ; and it often be- 
 comes important in oases where goods are transported to be 
 marketed at the termination of the shipment; or he may, of 
 course, consign them to a third party. In either case it will 
 become the duty of the common carrier to deliver the property 
 according to the contract in the bill of lading and to the per- 
 son named as consignee, or his order, and to no one else. And 
 in order that the carrier may protect himself, he may require 
 
 420 
 
CH. v.] FIXING LIABILITY BILL OF LADING. [§ 461. 
 
 that the original bill of lading shall be surrendered to hina at 
 the time be delivers the goods shipped. 
 
 § 461. The bill of lading with draft attached.— This has 
 come to be a matter of very great importance in the com- 
 mercial world. The shipper, for greater security, at the time 
 of obtaining his bill of lading for goods intended for the mar- 
 ket at their destination, often consigns them to himself or 
 order; he then attaches to the bill of lading a draft for the 
 amount of money that he is to receive from the buyer with 
 his indorsement upon the bill -of lading which will obtain a 
 deliver}'' of the property; he sends the bill of lading, with the 
 draft attached, to some bank in the city where the goods are to 
 be delivered, with instructions to deliver the bill of lading to 
 the purchaser upon payment of the draft attached. Or, if the 
 goods are consigned to the purchaser, he may pursue the same 
 course: attach the draft to the bill of lading, and transmit it to 
 the bank with instructions that it be delivered upon the payment 
 of the draft. Often, and generally, the shipper makes this 
 draft through his home bank and thus obtains a credit at 
 his home bank for the amount in advance. This manner of 
 shipment and the collection at once shows to us the impor- 
 tance of the business, and the reasons for a strict compliance 
 with the rules of law governing the transaction, and particu- 
 larly the liability of the common carrier as well as the bank 
 to whom the instructions are given as to the delivery of the bill 
 of lading.' 
 
 1 We here append a copy of the bill of lading made up with fictitious 
 names and amounts; also a copy of the conditions that are usually printed 
 upon the back of the bill. This bill of lading, with the conditions, is the 
 bill of lading adopted by the Eastern Traffic Association. We also append 
 a draft for the amount. The draft, as we have said, is usually attached to 
 the bill of lading. It is the practice of some of the railroad companies to 
 consign the goods to the consignor or order, which indicates to them that 
 a draft is to be attached. The banks often adopt the stamping upon the 
 draft itself of certain initials, as D. A. (meaning "draft attached "). With 
 this bill of lading and draft attached are instructions forwarded to the bank 
 not to deliver the bill of lading to the consignee until the draft is paid. As, 
 for example, in the case made up by this bill of lading with draft attached, 
 John Jones goes to his bank, the Detroit National, draws his draft on John 
 Hoe, the purchaser in New York, for the amount of the shipment, .§6.000, de- 
 livers the bill of lading to the Detroit National Bank, which attaches it to the 
 draft and sends it forward to the bank upon which it is drawn, to wit, 
 
 421 
 
4r.2.] 
 
 CARKIEES, 
 
 [part v. 
 
 "National Bank, New York,'' the consignor, taking credit at its home 
 bank; or, if the home bank does not desire to give him credit for the 
 amount, awaits the collection of the amount through the bank. If tlie 
 goods are shipped with the draft drawn against the bill, the following form 
 of bill is used: 
 
 MICHIGAN CENTRAL RAILROAD CO. 
 
 BILL OF LADING. 
 
 Detroit, Mich., December IS, 1901. 
 
 Received from, owner by Michigan Central Railroad Company, the property described 
 below, in apparent good order, except as noted (contents and condition of contents of pack- 
 ages unknown), marked, consigned and destined as indicated below, which said Company 
 a^Tees to carry to the said destination, if on its road, otherwise to deliver to another carrier 
 on the route to said destination. 
 
 It is mutually agreed, in consideration of the rate of freight hereinafter named, as to 
 each carrier of all or any of said property over all or any portion of said route to destination, 
 and as to each party at any time interested in all or any of said property, that every service 
 to be performed hereunder shall be subject to all the conditions, whether printed or im-itten, 
 herein contained, both on the face and on tJie back hereof, and which are hereby agreed to 
 by the shipper and by him accepted for himself and his assigns as just and reasonable. 
 
 Upon all the conditions, whether printed or written, herein contained, both on the face 
 
 and on the back hereof, it is mutually agreed that the rate of freight from to is to 
 
 be, in cents per 100 lbs: 
 
 If.. Times 
 First 
 Class. 
 
 If First 
 Class. 
 
 If Second 
 Class. 
 
 If Third 
 Class. 
 
 If Fourth 
 Class. 
 
 If Fifth 
 Class. 
 
 If Sixth 
 Class. 
 
 Ip Special. 
 
 Class. 
 
 Eate. 
 
 
 
 
 
 
 
 
 
 
 And advanced charges at , $- 
 
 Marks, Consignees and Destination. 
 
 Shippers order. 
 
 Notify 
 
 John Doe, 
 54 Broadway, New York, N. T. 
 
 Description of Articles. 
 
 Wheat 
 
 10,000 bushels 
 
 More or less. 
 
 Weight, Subject to 
 Correction. 
 
 SAMUEL JACKSON, Freight Agent. 
 
 Note. — Upon the back of this bdl are printed certain conditions which we do not append.— 
 Author. 
 
 The draft on the consignee, John Doe, which is sent through the bank for 
 payment before the wheat is delivered by the carrier, may be as follows: 
 
 $6,000. Detroit, Mich., December 12, 1901. 
 
 One day after sight , Pay to the 
 
 order of National Bank, New York. 
 
 Six thousand Dollars. 
 
 Value received and charge the same to account of 
 To John Doe, .,_,.). 
 
 No. 1666. 
 
 54 Broadway, New York. 
 
 John Jones. 
 
 § 462. Bill of lading as proof.— The bill of lading is both 
 a receipt for the goods delivered to the carrier and an agree- 
 ment 6a the part of the carrier to transport the goods to their 
 destination and deliver them to the consignee or his order. So 
 far as the bill is a receipt of the delivery of the goods, it is sub- 
 
 422 
 
CH. V.J FIXING LIABILITY BILL OF LADING. [§ 402. 
 
 ject to the law of evidence governing receipts and may be ex- 
 plained, modified or varied, or even entirely avoided, for fraud 
 or mistake, and this by parol proof. But so far as the bill of 
 lading is a contract between the parties that the carrier will 
 carry the goods to the place of destination designated in the 
 bill and deliver them to the persons named, as the consignee or 
 his order, or as to any other contract or stipulation contained 
 in the bill, it is subject to the law of evidence governing writ- 
 ten contracts and cannot be changed, altered or varied by 
 parol proof. So, where no goods were actually delivered to the 
 carrier at the time of the issuing of the bill of lading, but 
 through fraud and collusion the shipper and the agent of the 
 carrier falsely represent that goods have been delivered, it has 
 been frequently held that the carrier would not be liable for 
 the goods described in the bill, and this though the statutes 
 of the state forbid the issuing of a bill of lading unless the 
 goods described in it were actually in the possession of the 
 carrier at the time.' 
 
 Pollard V. Vinton ^ was a case where a bill of lading was 
 made and delivered for a quantity of cotton in the usual form. 
 The parties to whom it was delivered immediately drew a 
 draft on the plaintiffs in JSTew York, payable at sight, with bill 
 of lading attached, which draft was accepted and paid. No 
 cotton was shipped on the steamboat or delivered on the wharf, 
 
 ^ St. Louis, etc. R. Co. v. Insurance signed a bill of lading for thirty-two 
 Co.. 139 U. S. 223; The Wellington, bales of cotton which were not on 
 1 Biss. 279. " A bill, so far as it is a hand and were never delivered to 
 contract, cannot be affected by pa- the railroad company or any agent 
 rol, though subject to explanation for it. The plaintiffs paid a draft 
 as a receipt." McTyre v. Steel, 26 for the price of the cotton on the 
 Ala. 487; O'Brien v. Gilchrist, 34 Me. faith of the bill of lading attached 
 554; Witzler v. Collins, 70 Me. 290, 35 to it and indorsed to them, and never 
 Am. Rep. 327. But where a bill of having received the cotton sued the 
 lading expressly provides that goods railroad company for its non-deliv- 
 named therein may be carried on ery.'' Held, "thab the carrier was 
 deck, parol evidence is inadmissible not estopped to show that no cotton 
 to show that the shipper agreed that was in fact delivered for transporta- 
 an additional portion of the goods tion ; that the agent had no author- 
 should be so carried. Saward v. Ste- ity, real or apparent, to sign a receipt 
 vens, 69 Mass. 97. or bill of lading until actual delivery 
 
 ^105 U. S. 7: Robinson et al. v. of the cotton, and the company was 
 
 Memphis, etc. R. Co., 9 Fed. 139. 'The not liable." 
 freight agent of a railroad company 
 
 423 
 
§ 4('i2.] CARRIERS. [part V. 
 
 or to its agent for shipment, as stated in the bill of lading, the 
 s^tatement to that effect being untrae. The plaintiff, upon 
 whom the draft was drawn and the bill assigned, having paid 
 the draft, brought suit against the owner of the steamboat. 
 The court in its opinion say: "A bill of lading is an instru- 
 ment well known in commercial transactions, and its charac- 
 ter and effect have been defined by judicial decisions. In the 
 hands of the holder it is evidence of ownership, special or gen- 
 eral, of the property mentioned in it, and of the right to re- 
 ceive said property at the place of delivery. Notwithstanding 
 it is designed to pass from hand to hand, with or without in- 
 dorsement, and it is efficacious for its ordinary purposes in the 
 hands of the holder,it is not a negotia ble instrument or obligation 
 in the sense that a bill of exchange or a promissory note is. 
 Its transfer does not preclude, as in those cases, all inquiry into 
 the transaction in which it originated, because it has come into 
 the hands of persons who have innocently paid value for it. 
 The doctrine of 'bona fide purchasers applies to ^t only in a 
 limited sense. It is an instrument of a twofold character. It 
 is at once a receipt and a contract. In the former character 
 it is an acknowledgment of the receipt of property on board 
 his vessel by the owner of the vessel. In the latter it is a 
 contract to carry safely and deliver. The receipt of the 
 goods lies at the foundation of the contract to carry and 
 deliver. If no goods are actually received, there can be 
 no valid contract to carry or to deliver. To these ele- 
 mentary truths the reply is that the agent of defendant 
 has acknowledged in writing the receipt of the goods, and 
 promised for him that they should be safely delivered, and 
 that the principal cannot repudiate the act of his agent in this 
 matter, because it was within the scope of his employment. It 
 will probably be conceded that the effect of the bill of lading 
 and its binding force on the defendant is no stronger than if 
 signed by himself as master of his own vessel. In such case we 
 think the proposition cannot be successfulh'' disputed that the 
 person to whom such a bill of lading was first delivered cannot 
 hold the signer responsible for goods not received by the car- 
 rier. . . . Before the power to make and deliver a bill of 
 lading could arise, some person must have shipped goods on 
 the vessel. Only then could there be a shipper, and only then 
 
 484 
 
OH. v.] FIXING LIABILITY — BILL OF LADING. [§ 402. 
 
 could there be goods shipped. In saying this we do not mean 
 that the goods must have been actually placed on the deck of 
 the vessel. If they came within the control and ^custody of 
 the officers of the boat for the purpose of shipment, the con- 
 tract of carriage had commenced, and the evidence of it in the 
 form of a bill of lading would be binding. But without such 
 a delivery there was no contract of carrying, as the agents 
 of defendant had no authority to make one. They had no 
 authority to sell cotton and contract for delivery. They 
 had no authority to sell bills of lading. They had no power 
 tb execute these instruments and go out and sell them to pur- 
 chasers. No man had a right to buy such a bill of lading of 
 them who had not delivered them 'the goods to be shipped." 
 
 The court say, further, citing Tlie Schooner Freeman; Hickox 
 V. Buchingham: ' " In that case the schooner was libeled in 
 admiralty for failing to deliver flour for which the master had 
 given two bills of lading, certifying that it had been delivered 
 on board the vessel at Cleveland to be carried to Buffalo and 
 safely delivered. The libelants, who resided in the city of 
 New York, had advanced money to the consignee on these bills 
 of lading, which were delivered to them. It turned out that 
 no such flour had been shipped, and that the master had been 
 induced, by the fraudulent orders of a person in control of the 
 vessel at the time, to make and deliver the bills of lading to 
 him, and that he had sold the drafts on which libelants had 
 paid the money and received the bills of lading in good faith. 
 A question arose how far the claimant, who was the real owner 
 of the vessel, could be bound by the acts of the master appointed 
 by one to whom he had confided the control of the vessel ; 
 and the court held that, having consented to this delivery of 
 the vessel, he was bound by all the acts by which a master 
 could lawfully bind a vessel or its owner." The court in fur- 
 ther discussing the question say : " Even if the master had been 
 appointed by the claimant, a wilful fraud committed by him 
 on a third person, by signing false bills of lading, would not 
 be within his agency. If a signer of a bill of lading was not 
 the master of the vessel, no one would suppose the vessel bound ; 
 and the reason is, because the bill is signed by one not in priv- 
 ity with the owner. But the same reason applies to a signa- 
 
 1 18 How. 183. 
 423 
 
§ 402.] CAEEIEKS. [PAET y, 
 
 ture made by a master out of the course of his employment. 
 The taker assumes the risk, not only of the genuineness of the 
 signature, and of the fact that the signer was master of the 
 vessel, but also of the apparent authority of the master to 
 issue the bill of lading. We say the apparent authority, be- 
 cause any secret instructions by the owner, inconsistent with 
 the authority with which the master appears to be clothed, 
 would not affect third persons. But the master of a vessel 
 has no more apparent authority to sign bills of lading than he 
 has to sign bills of sale of the ship. He has an apparent au- 
 thority, if the ship be a gen&ral one, to sign bills of lading for 
 cargo actually shipped; and he has also authority to sign a 
 bill of sale of the ship, when, in case of disaster, his power of 
 sale arises. But the authority in each case, arises out of, and 
 depends upon, a particular state of facts. It is not an un- 
 limited authority in one case more than in the other; and his 
 act, in either case, does not bind the owner, even in favor of 
 an innocent purchaser, if the facts on which his power de- 
 pended did not exist; and it is incumbent upon those who are 
 about to change their condition, upon the faith of his author- 
 ity, to ascertain the existence of all the facts upon which his 
 authority depends." ^ 
 
 1 It is said by the court in Robins Eng. C. L. 664, has withstood the as- 
 
 V. Memphis, 9 Fed. 139, "these au- saults upon it and is established law. 
 
 thorities establish beyond dispute It has been approved by the supreme 
 
 that where a master signs a bill of court of the United States, and di- 
 
 lading for goods not received, or for rectly or in principle by other federal 
 
 more than are received, he acts be- courts." Vandewater v. Mills, 1& 
 
 yond his Huthority, and the owner is How. 90; The Lady Franklin, 8 Wall, 
 
 not liable either to the original ship- 325; The Keokuk, 9 Wall. 517-519; 
 
 per or any assignee of the bill of lad- Buckley v. Naumkeag Co., 24 How. 
 
 ing, whether he makes advances on 386, 892; The Loon, 7 Blatohf 244; 
 
 the faith of it or gives value for it or The Edwin, 1 Sprague, 477; Relyea 
 
 not; neither is the owner estopped v. Roliing Mill Co.. 42 Conn. 579; 
 
 to show the facts as they really ex- King v. Shepherd, 3 Story, 349, 360; 
 
 ist. Some courts have reluctantly Hutchinson on Carriers, sees. 123, 
 
 yielded to this principle, and some 124; Miller v. Railroad Co., 99 N. Y. 
 
 have sought to restrict or qualify it 430; Friedlander v. Railway Co., 130 
 
 in the supposed interest of commer- U. S. 460; Nat. Bank v. Railroad Co., 
 
 cial dealing; but in England, al- 44 Minn. 224. In Gibbons v. Robin- 
 
 though a statute makes the Individ- son, 63 Mich. 146, the court held: "A 
 
 ual signing the bill of lading liable, bill of lading constitutes a contract 
 
 it goes no further, and the doctrine between the parties thereto, and is 
 
 of Grant v. Norway, 10 C. B. 665, 70 evidence of the receipt of the goods, 
 
 426 
 
OH. v.] FIXING LIABILITY — BILL OF LADING. [§ 403. 
 
 § 463. Authorities not entirely harmonious. — While 
 
 it would seem that the great weight of authority is as stated 
 in the text and cases just cited, there is, however, a very re- 
 spectable line of cases holding that where a third party, rely- 
 ing upon the statement of the carrier in the bill of lading, has 
 invested his money by way of paying the draft attached to the 
 bill, the carrier is estopped from denying the facts stated 
 in the bill. These courts do not base their holding upon the 
 negotiability of the bill of lading, but upon the ground of es- 
 toppel in pais. 
 
 The supreme court, in Brooks v. Railway Co.^ say: "As be- 
 tween principal and third parties, the true limit of the agent's 
 authority to bind the former is the apparent authority with 
 which the agent is invested ; but, as between the principal and 
 the agent, the true limit is the express authority or instruction 
 given to the agent. The principal is bound by all the acts of 
 his.ageut within the scope of the authority which he held him 
 out to the world as j.ossessing, notwithstanding the agent acted 
 contrary to instructions; and this is especially the case with 
 officers and agents of corporations. Since a corporation acts 
 only through agents, it is bound by its agents' contracts when 
 made ostensibly within the range of their office. One who 
 authorizes another to act for him in a certain class of contracts 
 undertakes for the absence of fraud in the agent acting within 
 
 of their condition when received, of Peck, 28 N. Y. 290; Baltimore v. 
 
 the contract of carriage, and to Brown, 54 Pa. St. 77; Glass v. Gold- 
 
 whom they are to be delivered. It smith, 22 Wis. 488. But see St. Louis 
 
 is not, however, conclusive evidence & S. F. R. Co. v. Adams, 4 Kan. App. 
 
 of such receipt or condition between 305, 45 Pac. 920, where the court 
 
 the owner and shipper, but so far as held that " railroad companies are 
 
 it is an undertaking to transport and estopped from denying the recitals 
 
 deliver the goods as therein stipu- in the bill that the consignment had 
 
 lated, in the absence of fraud or mis- in fact been received." Also Smith 
 
 take, its terms cannot be altered or v. Missouri Pac. R. Co., 74 Mo. App. 48, 
 
 varied by parol proof where it forms where it was held "that as against a 
 
 the basis or subject-matter of an bona fide holder, where the bill of 
 
 action between the parties to the lading was issued by a railroad com- 
 
 contract." Pereira v. Cent. Pac. R. pany, the company is estopped from 
 
 Co., 66Cal. 92; Bissell V. Price, 16 111. denying that the goods were not 
 
 408; Chapin v. Chicago, etc. R. Co., 79 actually received by the company." 
 Iowa, 582; Kirkman v. Bowman, 8 1108 Pa. St. 529; Adams Exp. Co. 
 
 Rob. (La.) 246; Atwell v. Miller, 11 v. Schlessinger, 75 Pa. St. 246; Evans' 
 
 Md. 348, 69 Am. Deo. 206; Meyer v. Agency, 594, 606, 193. 
 
 427 
 
§ 463.] CAREIEES. [PAET V. 
 
 the scope of his authority. The authority of an agent to act 
 for and bind his principal will be implied from the accustomed 
 performance by the agent of acts of the same general charac- 
 ter for the principal with his knowledge and consent. These 
 elementary principles are founded on the doctrine that where 
 one of two persons must suffer by the act of a third person, he 
 who has held that person out as worthy of trust and confidence, 
 and as having authority in that matter, should be bound by 
 it. It is conceded in this case that the company did not au- 
 thorize the issuance of bills of lading without receipt of the 
 goods, but it put the agent in its place to do that class of acts 
 and it should be answerable for the manner in which he con- 
 ducted himself within the range of his agency. Public policy, 
 as well as the ultimate good of corporations themselves, re- 
 quires that this should be the rule." 
 
 In a case in the New York court, where bills of lading were 
 issued for a quantity of lard consigned to the plaintiff, the con- 
 signor drawing upon the plaintiff with the bill of lading at- 
 tached, and upon the faith of the bill of lading the drafts were 
 paid, but no lard was ever received by the railroad company, 
 the court held that, as the agent had authority to issue bills of 
 lading for goods received for shipment, the bills in question 
 being in the usual form, the agent must be considered as hav- 
 ing the necessary authority.' 
 
 1 Armour et al. v. Mich. Cent. R. It is now well settled that fraud is 
 
 Co., 65 N. Y. 111. The court say: not necessary to constitute a case of 
 
 " They were issued with the expecta- estoppel. Though the defendant was 
 
 tion that they would be acted upon induced by the fraud or mistate of 
 
 by bankers or other capitalists. It Michaels to issue these bills, that is 
 
 cannot complain if the bills accom- immaterial. Its liability depends on 
 
 plished the purpose for which they the fact that, no matter what its iii- 
 
 were designed. The representations ducements may have been, it has 
 
 in tlie bills were made to any one made certain representations upon 
 
 who, in the course of business, might which the plaintiffs have advanced 
 
 think tit to make advances on the their money in good faith. If the 
 
 faith of them. There is thus present defendant placed undue confidence 
 
 every element necessary to oonsti- in Michaels, it is but the familiar 
 
 tute a case of estoppel in pais, a case of imposing the burden upon 
 
 representation made with the knowl- him who unwisely Qr unguardedly 
 
 edge that it might be acted upon, reposed the confidence.'' Brown v. 
 
 and subsequent action upon the Bowen, 30 N. Y. 519; Mfg. & Traders' 
 
 faith of it to such an extent that it Bank v. Hazard, id. 226; Shapley v. 
 
 would injure the plaintiffs if the Abbott, 42 id. 443; Rawls v. Deshler, 
 
 representation was not made good. 4 Abb. Ct. App. 12; Batavia Bank v. 
 
 428 
 
OH. v.] FIXING LIABILITY- BILL OF LADING. [§§404,465. 
 
 § 464. Conclusiveness as to condition, weight, contents or 
 Talue. — The carrier, it may be said, as a rule, is not supposed 
 to know the condition of the contents of packages or boxes of 
 goods brought to him for shipment; he can only determine that 
 as to their external appearance they are in good condition, and 
 so if their condition is found to have been otherwise on account 
 of natural decay, or propensities of the goods delivered, that 
 they have spoiled or wasted because of leakage, or on account 
 of unskilful packing, or even that they were not in good con- 
 dition at the time they were delivered, these facts may be 
 shown and the carrier excused from liability. But if the loss 
 or damaged condition was the result of the carrier's own neg- 
 ligence, and this fact can be shown, then of course he would be 
 liable. 
 
 In Ridhards et al. v. Doe et aU it was held "that a recital by 
 the defendants in the bill of lading that the goods were received 
 •in good order and condition, thoxxgh. prima facie, is not conclu- 
 sive evidence that the goods were free from internal injuries." 
 The carrier may no doubt bind himself by the bill of lading so 
 as to become liable as to weight or contents, or even value of 
 the goods, but usually he excludes liability in this respect by 
 words of limitation ; that is, reciting in the bill of lading or the 
 shipping bill that as to contents or the value of the goods, 
 or weight, it is unknown. And so it may be said as a general 
 rule, that, as between the original parties, the bill is merely 
 prima facie evidence as to weight pv quantity, and not con- 
 clusive, and that the carrier may show by parol evidence that 
 a smaller quantity was actually received, or the shipper may 
 show that the carrier received a larger quantity.^ 
 
 § 465. By wliom issued. — The bill of lading may be issued 
 by the carrier or his duly authorized agent. It is not neces- 
 sary that there should be any particular form of appointment; 
 the principles of the law of agency will apply. Eatification on 
 the part of the carrier, knowing all the facts as to the acts of one 
 
 N. Y. E. Co., 106 N. Y. 195, 60 Am. Mich. 206; Ryder v. Hall, 7 Allen, 456; 
 
 Rep. 440. Meyer v. Peck, 88 N. Y. 590; Dean v. 
 
 1 100 Mass. 534. King. 23 Ohio St. 118; Chapin v. CM- 
 
 ^ The Lady Franklin, 8 Wall. (U.S.) cago R Co., 79 Iowa, 583, 43 Am. & 
 
 325; The Ethel, 59 Fed. Rep. 473; Eng. E. Cases, 542. 
 
 Strong V. Grand Trunk R. Co., 15 
 
 429 
 
§ H'lO.] CAREIEES. [part V. 
 
 claiming to act in behalf of the carrier, will be considered to 
 be a sufficient appointment. The master of a vessel, because 
 of the nature of his appointment, has been held to have author- 
 ity to receive freight and issue a bill of lading therefor.' The 
 person issuing the bill of lading must have authority to siga 
 the carrier's name to the bill, for the bill must be signed by the 
 carrier or some one by him duly authorized before it can have 
 any binding effect. 
 
 » Costello V. Laths, 44 Fed. 105; The Mary Bradford, 18 Fed. 189. 
 
 430 
 
CHAPTEE YI. 
 
 LIABILITY AND LIMITATIONS UPON THE LIABILITY OF THE 
 COMMON CARRIER. 
 
 § 466. Liability <)f the common car- 
 rier. 
 
 467. Reasons for extraordinary lia- 
 
 bility. 
 
 468. Inanimate and animate 
 
 freight 
 
 I. When the Loss or Injury is 
 Caused by the Act of God. 
 
 469. The act of God. 
 
 470. Does not always excuse the 
 
 carrier from all care. 
 
 471. The act of God must be the 
 
 conclusive and proximate 
 cause. 
 
 472. What will and what will not 
 
 excuse — Summary. 
 
 473. Burden of proof. 
 
 IL By the Public Enemy. 
 
 474. The public enemy. 
 
 475. The diligence required on the 
 
 part of the carrier. 
 
 476. Diligence, even though the 
 
 property is injured or de- 
 stroyed after the event has 
 occurred. 
 
 477. Strikers, rioters and robbers 
 
 not the public enemy. 
 
 IIL Where the Loss or Injury is 
 THE Result of the Acts of 
 THE Shipper. 
 
 47& Reasons of the liability of the 
 carrier. 
 
 § 479. Contributory negligence. 
 
 480. Improperly marking goods by 
 
 the consignor. 
 
 481. Goods improperly marked or 
 
 loaded. 
 
 482. Neglect of the shipper to dis- 
 
 close contents or value. 
 
 483. Loss from mistake or inter- 
 
 meddling on the part of the 
 shipper. 
 
 484. Negligence of the carrier. 
 
 IV. Where the Loss or Injury is 
 Caused by the Inherent 
 Natube op the Goods. 
 
 485. The exception. 
 
 486. Animate freight. 
 
 V. Carrying of Live Stock. 
 
 487. The exception applies. 
 
 488. Michigan rule. 
 
 489. The duty of the common car- 
 
 rier. 
 
 490. Statutes of United States with 
 
 reference to duties of the 
 carrier. 
 
 491. The shipper must deal fairly 
 
 with the carrier. 
 
 VL When the Loss or Injury is 
 Occasioned from the Ex- 
 ercise of Public Author- 
 ity. 
 493. The reasons for the exception. 
 
 § 466, Liability of the common carrier. — Common carriers 
 belong to the extraordinary class of bailments, and though 
 many of the reasons in which their extraordinary liability had 
 its origin have long since ceased to exist, nevertheless the ex- 
 traordinary liability still continues with but slight variance. 
 
 431 
 
§ 467.] CAEEIEES. [PAET V. 
 
 The common-law liability of the common carrier of goods is 
 that of an insurer against loss or injury of the property while 
 in his custody or under his control as a common carrier, ex- 
 cept (1) where the loss or injury is caused by the act of God; 
 or (2) by the public enemy. To these exceptions, which have 
 long been exceptions by the common law, the m'ore modern 
 adjudications have added three others: (3) when the loss or in- 
 jury is the result of the acts of the shipper; or (4) caused by 
 the inherent nature of the goods; or (5) from public authority. 
 
 § 467. Reasons for extraordinary liability. — The reasons 
 for the extraordinary liability were discussed by Lord Holt in 
 the celebrated case of Coggs v. Barnard^ in this language: 
 "The law charges this person (the carrier), thus intrusted to 
 carry goods, against all events but acts of God and of the ene- 
 mies of the king. For, though the force be never so great, as 
 if an irresistible multitude of people should rob him, neverthe- 
 less he is chargeable. And this is a politic establishment, con- 
 trived by the policy of the law for the safety of all persons, the 
 necessity of whose affairs obliges them to trust these sorts of 
 persons, that they may be safe in their ways of dealing; for else 
 these carriers might have an opportunity of undoing all per- 
 sons that had any dealings with them, by combining with 
 thieves, etc. ; and yet doing it in such a clandestine manner 
 as would not be possible to be discovered. And this is the 
 reason the law is founded upon in that point." 
 
 Mr. Chief Justice Best, in Eiley v. Horne^ commenting upon 
 the foundation of the rule in its bearings upon the commercial 
 interests of the country, said : " When goods are delivered to a 
 carrier, they are usually no longer under the eye of the owner; 
 he seldom follows or sends any servants with them to the place 
 of their destination. If they should be lost or injured by the 
 grossest negligence of the carrier or his servants, or stolen by 
 them, or by thieves in collusion with them, the owner would 
 be unable to prove either of these causes of loss. His witnesses 
 must be the carrier's servants; and they, knowing that they 
 could not be contradicted, would excuse their masters and 
 themselves. To give due security to property, the law has 
 added to that responsibility of a carrier, which immediately 
 
 1 3 Lord Raymond, 909. 2 5 Bing. 317. 
 
 433 
 
OH. VI.] LIMITATIONS UPON LIABILITY. [§ 468. 
 
 arises out of his contract to carry for a reward, namely, that 
 of taking all reasonable care of it, the responsibility of an in- 
 surer. From his liability as an insurer, the carrier is only to be 
 relieved by two things, both so well known to all the country 
 when they happen, that no person would be so rash as to at- 
 tempt to prove that they had happened when they had not, — 
 namely, the act of God and the king's enemies." 
 
 Judge Story, discussing the liability, says:' "In questions, 
 therefore, as to the liability of the carrier, the point ordinarily 
 is not so much whether he has been guilty of negligence or 
 not, as whether the loss comes within either of the excepted 
 cases. Not but that, if the carrier is actually guilty of negli- 
 gence, he will be liable for a loss, which otherwise might be 
 deemed a loss by an inevitable casualty." 
 
 § 468. Inanimate and animate freight. — From the 
 
 statement of the exceptions or limitations to the liability of 
 the common carrier it will be noticed that the extent of the 
 liability and the application of the rules of limitation must be 
 largely affected by the kind of goods that are being transported. 
 If the freight is inanimate it can be, and is, subjected to the 
 entire control of the carrier; he can lay it away in his vehicle 
 where he chooses, and to his will and desire in this respect there 
 is no opposition or restraint. A load of grain in sacks may 
 be piled into one of the carrier's cars or vehicles, and if well 
 loaded, and there are no mishaps in the transit, the goods at 
 the end of the journey will be found in the same place and in 
 the same condition as when they started in transit; but if the 
 freight is animate, very different results may be looked for. If, 
 for example, it be a load of horses or cattle stowed into a car, 
 they become nervous and discontented, and often injure each 
 other. The very fact that they possess life is an added ele- 
 ment of uncertainty in the safety of their transportation, and 
 so much does this change the nature of the liability that some 
 of the courts have held that live animals are not goods and 
 merchandise, and that the carrier's liability in transporting 
 them is not the extraordinary common-law liability; that this 
 extraordinary liability that attaches in case of inanimate freight 
 does not apply in case of animate freight. Upon this, however, 
 
 1 Story on Bailm., sec. 493. 
 28 433 
 
§ 469.] CAEEIEES. [part V. 
 
 there is a diversity of opinion, the weight of authority hold- 
 ing, as we shall see, that the liability is the extraordinary liabil- 
 ity, limited only by the inherent nature of the freight.' 
 
 Section I. 
 When the Loss or Injtjet is Caused bt the Act of God. 
 
 § 469. The act of God. — It is sometimes very difficult to de- 
 termine what is and what is not the act of God. There has 
 been a great deal of discussion among the courts and authors 
 with reference to this subject. The definition that is perhaps 
 as often used as any is that of Anderson. An act of God is 
 defined to be " such inevitable accident as cannot be prevented 
 by human care, skill or foresight, but results from natural 
 causes, such as lightning, tempest, floods and inundations — 
 something superhuman, or something in opposition to the act 
 of man."^ 
 
 The supreme court of the United States, in The Majestic^ 
 have quoted with approval Chancellor Kent : " ' The act of God,' 
 said Chancellor Kent, ' means inevitable accident, without 
 the intervention of man and public enemies; ' and again, that 
 'perils of the sea denote natural accidents peculiar to that ele- 
 ment, which do not happen by the intervention of man, nor 
 are to be prevented by human prudence. It is a loss happen- 
 ing in spite of all human effort and sagacity.' The words 
 ' perils of the sea ' may, indeed, have grown to have a broader 
 signification than ' the act of God,' but that is unimportant 
 here." And further, from Judge Parsons : " the ' act of God ' is 
 limited, as we conceive, to causes in which no man has any 
 agency whatever; because it was intended never to raise, in 
 
 i"The liability of a common car- pany, for an agreed compensation, 
 rier of goods is that of an insurer, and undertakes to carry goods and de- 
 in oases of loss no excuse avails such liver them at destination, it is respon- 
 carrier unless occasioned by the act sible for their loss irrespective of 
 of God or public enemy." Central R liability as a common carrier. Trim- 
 Co. V. Lippman, 110 Ga. 665. Com- ble v. New York Co., 57 N. Y. Sup. 
 mou carriers of freight are liable for 437. 
 
 any damage not caused by the act of 2 MoHenry v. Philadelphia E, Co., 
 
 God or the public enemy, and are in- 4 Harr. (Del.) 449; Chicago, etc. E, 
 
 surers. Grand Rapids & Ind. R. Co. Co. v. Sawyer, 69 111. 289; And. Die, 
 
 V. Huntley, 38 Mich. 537; Reed v. 23; Express Co. v. Jackson, 93 Tenn. 
 
 Wilmington Steamboat Co., 40 Atl. 326. 
 
 955 (Del.). Where a railroad com- 3 166 XJ. S, 375. 
 
 434 
 
CH. VI.] LIMITATIONS UPON LIABILITY. [§ 470. 
 
 the case of the common carrier, the dangerous and difficult 
 question whether he actually had any agency in causing the 
 loss; for, if this were possible, he should be held." And so an 
 unprecedented flood by reason of which the baggage of a pas- 
 senger was swept away was held to be an act of God.^ And in 
 Longv. Pennsylvania M. Co? it was held: " That the Johnstown 
 flood in 1889, which was of such extraordinary character that 
 a party was not bound to anticipate or provide against it, and 
 which came with such suddenness and power that escape from 
 it was impossible, was an inevitable accident or act of God in 
 respect to the loss of baggage on a railroad train where the 
 utmost care was exercised by the agents and employees of the 
 carrier to escape the dangers of which they had knowledge or 
 reasonable grounds of apprehension." 
 
 § 170. Does not always excuse the carrier from all care. 
 While the act of God, or such inevitable accident as is defined 
 to be the act of God, will exempt the common carrier from 
 the extraordinary liability that the common law imposes upon 
 him in case of loss or injury of the property, it cannot be said 
 to be an absolute excuse for all care or diligence upon the part 
 of the carrier. If the goods are entirely destroyed by reason 
 of the act of God, and the destruction was occasioned where 
 there was no possibility of escaping the result, or any portion 
 of it, it might be said that the defense would be a complete 
 defense to an action against the carrier; but if the destruction 
 is not total, then, while the carrier may be excused from the 
 same liability, the law imposes upon him the duty of using or- 
 dinary diligence in preserving and caring for the property that 
 is not entirely destroyed and is still in his custody. As where 
 a shipper shipped with the plaintiff a carload of hogs, and 
 the train upon which the car was being drawn was blocked by 
 a snow storm, and detained upon the track for some time, 
 during which time sixteen of the hogs died, it was held that 
 while the train was undoubtedly detained by reason of the 
 
 1 Wald V. Pittsburg R. Co., 163 111. and unexpected. People v. Utica 
 
 545, 35 L. R. A. 356. Cement Co., 33 111. App. 159; Bow- 
 
 2 147 Pa. St. 343, 14 L. R. A. 741. A man v. Teall, 33 Wend. 306; Parsons 
 
 storm or freshet, to constitute an act v. Hardy, 14 Wend. 315; Harris v. 
 
 of Providence, need not be unprece- Raad, 4 N. H. 359; Crosbey v. Fitch, 
 
 dented, if it is unusual, extraordinary 13 Conn. 410. 
 
 435 
 
§ 471.J OAEEIEKS. [PAET V. 
 
 act of God, notwithstanding this fact it was the duty of the 
 carrier to exercise ordinary care in taking care of the property 
 under all the circumstances/ and if he fails to do so, he is lia- 
 ble for the loss resulting therefrom. 
 
 § 471. The act of God must be the conclusive and prox- 
 imate cause.— If the loss or injury was the result in the 
 slightest degree of any human action, or any admixture of 
 human means with that which is determined to be the act of 
 God, in such case the carrier could not be excused but would 
 be held to the extraordinary liability. If the carrier has been 
 guilty of any previous negligence or misconduct which would 
 bring the property in contact with the destructive force of the 
 actus Dei, or unnecessarily expose it thereto, he would not be 
 exempt from liability ; the loss or injury must have been oc- 
 casioned by the direct and exclusive cause, — the act of God, — in 
 order to exempt the carrier. Where the plaintiff brought suit 
 against the railroad company alleging the loss of his trunk 
 upon a train destroyed in the Johnstown iiood, while it was- 
 held that the Johnstown flood was unquestionably an act 
 of God and that the trunk was destroyed by reason of 
 it, still, the court further held that if the trunk had gone 
 upon the same train with the passenger, the plaintiff, and 
 the train it should have been put upon, it would have passed 
 where the flood occurred before it happened, and thus the 
 property would not have been destroyed; holding, therefore, 
 that the loss was not entirely the result of the act of God, but 
 was probably caused by human acts.^ And in a case where a 
 car was blown over by a furious wind, and the goods in the 
 car afterwards and almost immediately destroyed by fire, it 
 was held that the jury might properly find that the failure of 
 the carrier to rescue the goods from the car which had been 
 overturned by the force of the wind before they were con- 
 sumed by fire was not negligence, where the evidence shows 
 that the wind was so strong as to render it almost impossible 
 for men to stand or walk, while the air was so full of dust and 
 
 1 Black V. Chicago, B. & Q. R Co., v. Spaulding, 30 N. Y. 630, 86 Am. 
 30 Neb. 197, 46 N. W. 428; Smith v. Dec. 426; McGraw v. Baltimore & 
 Railroad Co., 91 Ala. 455. Ohio R Co., 18 W. Va. 361, 41 Am. 
 
 2 Wald V. Railroad Co., 162 111. 545; Eep. 696. 
 M. C. R Co. V. Curtis, 80 IlL 324; Read 
 
 486 
 
CH. VI.] LIMITATIONS UPON LIABILITY. [§ 472. 
 
 flying material that scarcely anything could be seen, and that 
 the fire succeeded the overturning of the car almost instanta- 
 neously, so that even a messenger within the car escaped with 
 great difiiculty.^ 
 
 § 472. What will and what will not excuse — Summary. — 
 So it may be said that the carrier will be excused beyond ques- 
 tion where the loss was occasioned solely by the act of God ; 
 such as sudden inundation, lightning, fire by lightning, land- 
 slides, tornadoes, or wind storms, earthquakes, snow storms and 
 rain storms, but that he will not be excused where the fire is 
 not caused by lightning but originated from some human 
 agency or negligence, nor will he be excused even where the 
 fire is blown along by a wind which sometimes arises and drives 
 it upoa the property which is destroyed; nor by explosion of 
 steam boilers, although it is necessary that steam boilers shall 
 be used for propelling the boats and drawing the vehicles of 
 the carrier; nor by collisions, even though the collision may 
 have happened because of dense fog, or by reason of a tempest, 
 or by severe storm; the theory being that wherever human 
 activity has a part in that which causes the destruction or in- 
 jury, the carrier would be liable. As, for example, where the 
 fire is blown by the wind, or where the boiler explodes upon 
 the steamboat, or where the collision takes place in a fog, the 
 boat or the vehicle is managed and under the care of human 
 agency, and the loss or injury cannot be said to be caused by 
 the act of God.> 
 
 1 Blythe et al. v. Denver, etc. E. Co., 405. " The act of God which will ex- 
 
 15 Colo. 333, 11 L, R. A. 615; Davis cusea common carrier must be the 
 
 V. Wabash, etc. R. Co., 89 Mo. 349; proximate and not the remote cause 
 
 Chidister v. Consolidated Ditch Co., of the loss." King v. Shepherd, 3 
 
 59Cal. 203. " Where human agency Story, 356, "The act of God must 
 
 intervenes, the act of God cannot be not only be proximate but the sole 
 
 sustained as a defense; as where a cause of the loss." Wolf v. Am. Ex. 
 
 steamer was sunk by running into a Co., 43 Mo. 421. See notes to Hull v. 
 
 mast of a sloop, a day or two previ- Chicago R Co., 41 Minn. 510, 5 L. R. 
 
 ously; the squall which sunk the A. 587; Insurance Co. v. Easton, 73 
 
 sloop was too remote." Merritt v. Tex. 167, 3 L. R. A. 434; Hartwell v. 
 
 Earle, 39 N. Y. 115. "Any act or Northern Pao. Ex. Co., 5 Dak. 463, 3 
 
 omission on the part of the carrier L. R. A. 443; also notes, 11 L. R. A. 
 
 contributing to the loss takes way 615. 
 
 the protection of the defense that the ^ Forward v. Pittard, 1 T. R. 33; 
 
 loss was occasioned by the act of Holliscer v. Nowlen, 19 Wend. 234; 
 
 God." Dibble v. Morgan, 1 Woods, Blythe v. Railroad Co., 15 Col. 333; 
 
 437 
 
§§ 473, 474.] OAEEIEES. [PAET T. 
 
 § 4-73. Burden of proof. — If the carrier relies for his defense 
 upon this excuse, the burden of proof is upon him to make out 
 his defense, having the affirmative of that issue.^ 
 
 Section ll. 
 
 By the Public Enemy. 
 
 § 474. The public enemy.— The public enemy, or, as it is 
 ^called in the English cases, the king's enemies, may be defined 
 to be enemies with whom the nation is at war, 'including also 
 robbers or pirates upon the high seas. From this definition 
 it will be understood that it does not include insurgents or those 
 in rebellion with the state or nation, nor strikers, robbers or 
 marauding bands of thieves, but rather presupposes that they 
 must be the soldiers or armies of one or more of the govern- 
 ments among the powers, as a nation or independent govern- 
 ment, devolution, however, may grow to such proportions that 
 it dominates the government and country where it exists, that 
 is, becomes the ruling power, as did the revolutionists of the 
 American colonies, and, as such, force recognition by other 
 nations. The revolution of the states which brought on the 
 war of the rebellion forced the courts of our own country to 
 recognize their captures and destruction of property as coming 
 within the exception, although such recognition was conceded 
 with great reluctance. In the case of Mauran v. Insurance Co.f 
 the question was very ably discussed by learned counsel in their 
 briefs printed with the case, where authorities are cited, and 
 by Justice Nelson, who rendered the opinion of the court. In 
 the opinion is found this language: "Now, applying these 
 principles to the case before us, it will be seen that the question 
 is not whether this so-called Confederate government, under 
 whose authority the capture was made, was a lawful govern- 
 ment, but whether or not it was a government in fact, that is, 
 one in the possession of the supreme power of the district of 
 country over which its jurisdiction extended? We agree that 
 all the proceedings of these eleven states, either severally or in 
 conjunction, by means of which the existing governments were 
 
 Hale V. N. J. S. N. Co., 15 Conn. 539; Heisk. 271; Nashville, etc. R. Co. v. 
 The Northern Belle, 9 Wall. 536; Plais- King, 6 Heisk. 269. 
 ted V. Navigation Co., 27 Me. 123; ' Story on Bailm., see. 493. 
 Nashville, etc. R. Co. v. Jackson, 6 2 e Wall 1. 
 
 438 
 
OH. VI.J LIMITATIONS UPON LIABILITY. [§ 474. 
 
 overthrown and new governments erected in their stead, were 
 wholly illegal and void, and that they remained after the at- 
 tempted separation and change of government, in judgment of 
 law, as completely under all their constitutional obligations as 
 before. The constitution of the United States, which is the 
 fundamental law of each and all of them, not only afforded no 
 countenance or authority for these proceedings, but they were, 
 in every part of them, in express disregard and violation of it. 
 Still, it cannot be denied but that by the use of these unlawful 
 and unconstitutional means a government, in fact, was erected 
 greater in territory than many of the old governments in 
 Europe, complete in the organization of all its parts, containing 
 within its limits more than eleven millions of people, and of 
 sufBcient resources, in men and money, to carry on a civil war 
 of unexampled dimensions; and during all which time the ex- 
 ercise of many belligerent rights were either conceded to it, or 
 were acquiesced in by the supreme government, such as the 
 treatment of captives, both on land and sea, as prisoners of war ; 
 the exchange of prisoners; their vessels captured recognized 
 as prizes of war, and dealt with accordingly; their property 
 seized on land referred to the judicial tribunals for adjudica- 
 tion; their ports blockaded, and the blockade maintained by a 
 suitable force, and duly notified to neutral powers the same as 
 in open and public war. 
 
 ""We do not inquire whether these were rights conceded to 
 the enemy by the laws of war among civilized nations, or were 
 dictated by humanity to mitigate the vindictive passions grow- 
 ing out of a civil conflict. We refer to the conduct of the war 
 as a matter of fact for the purpose of showing that the so-called 
 Confederate States were in the possession of many of the highest 
 attributes of government, sufficiently so to be regarded as the 
 ruling or supreme power of the country, and hence captures 
 under its commission were among those excepted out of the 
 policy by the warranty of the insured." 1 Bobbers or pirates 
 upon the high seas are adjudged to be the public enemy upon 
 
 iThe Prize Cases, 2 Black, 635; or domestic. Insurrection, however 
 
 Thoringtonv.Smith, 8 Wall. 1; Bland violent or hovi'ever formidable, is 
 
 V. Adams Exp. Co., 1 Duv. (Ky.) 332. not vi^ar. Civil vpar is preceded by 
 
 Chief Justice Robertson, in the opin- insurrection, which becomes magni- 
 
 ion, uses this language: "War is fied and matured into war in the 
 
 either international or civil, foreign legitimate sense, and when so char- 
 
 439 
 
§§ 476, 476.] OAEEIEES. [PAET T. 
 
 the theory that they are the enemies of all mankind, and so 
 the enemies of every nation. 
 § 475. The diligence required on the part of the carrier. 
 
 In this, as in the case where the act of God is claimed as aa 
 exemption from liability, the common carrier is held to at 
 least ordinary diligence in avoiding the loss of or injury to the 
 property; and where, by negligence upon his part, there is a 
 delay which would result in the destruction or injury of the 
 property, even though it were by the public enemy, or where 
 by his negligence there was a deviation in the route which 
 would carry the property unnecessarily into a country invested 
 by the armies of the enemy, and the property was destroyed 
 or injured by them; in all such cases the common carrier 
 would be liable, and could not successfully invoke the defense 
 that the injury or destruction was the result of the acts of the 
 public enemy. And the same rule would apply in cases where 
 the property was injured or destroyed by pirates upon the 
 high seas. It is, in other words, the duty of the public carrier 
 to exercise at least ordinary diligence; such diligence as an 
 ordinarily prudent man, under just such circurAstances, would 
 use with reference to his own affairs. 
 
 § 476. Diligence, even though the property is injured or 
 destroyed after the event has occurred. — And in this as in 
 the cases already discussed under the act of God, it is the duty 
 of the carrier to exercise ordinary diligence in caring for the 
 property that is injured, though the injury occurred by reason 
 of acts of the public enemj'^. He must do all that he can to 
 take care of the property that is saved from destruction, and 
 even though it is injured, he must care for all that would 
 be of value to the shipper or his consignee ; if by the use of 
 such ordinary diligence valuable property could be saved or re- 
 stored after the injury or destruction has occurred, it is the 
 dut}' of the carrier to exercise that diligence, and it would be 
 no defense for the carrier to show that, even though in the par- 
 ticular case he failed to exercise diligence, the property would 
 have been destroyed on account of other like calamities that 
 certainly would have overtaken it. As, for example, if the 
 
 acterized the parties are belligerents Exp. Co. v. Womaok, 1 Heisk. 356; 
 and entitled to belligerent rights." Fiefield v. Insurance Co., 47 Pa. St. 
 Frank v. Keith, 3 Bush, 133 ; Southern 166. 
 
 440 
 
<3H. VI.] LIMITATIONS UPON LIABILITY. [§ 477. 
 
 property, on account of unnecessary deviation from the usual 
 route, was injured or destroyed even by the act of God or the 
 public enemy, it would be no defense for the carrier to show 
 that if the route had not been deviated, and the property had 
 been carried upon the usual course, it would probably have suf- 
 fered the same injury or destruction. The law, in other words, 
 will not speculate and accept the theories and conclusions of 
 men; in such a case the actual injury or destruction is the ques- 
 tion that is to be adjudicated upon and adjusted, and where it 
 has taken place under such circumstances the carrier must an- 
 swer to the extraordinary liability that is required in his case.^ 
 Should it be a case, however, where there could be no question 
 but that the property would have been destroyed had the car- 
 rier pursued the usual and regular course, and the deviation 
 was dictated by ordinary judgment and prudence, but resulted 
 in disaster by reason of the act of God or other reason which 
 would ordinarily excuse the carrier, in such case it seems the 
 carrier would be excused.^ 
 
 § 477. Strikers, rioters and robbers not the public enemy. 
 Strikers, rioters and robbers are not deemed to be the public 
 enemy, and so their action will not relieve the carrier from 
 the extraordinary liability which attaches to a common car- 
 rier of goods, except so far as to excuse deviation and delay. 
 This seemingly severe rule as to the liability of the carrier 
 seems to have had its origin in the very early opinion that the 
 carrier should be held to meet such force with force ; if at- 
 tacked by robbers, that he should have at his call sufficient 
 force to meet and repel the attack.' More recently this rule, 
 which seems to have generally prevailed in the earlier times, 
 has been abandoned by the courts and the liability rested upon 
 a different theory, namely, that of a probability of collusion 
 between the carrier and third parties to defraud the shipper, 
 unless deterred by severe rules and penalties, which seemed to 
 be demanded by public policy. 
 
 ' This was the discussion in the that which a person of ordinary pru- 
 
 case of Davis v. Garrett, 6 Bing. 716. dence and caution would use if his 
 
 2 Story on Bailm., sees. 413a, 4136, own interests were to be affected 
 413c, 413d The Nitro-glycerine Case, and the whole risk were his own. 
 15 Wall. 524, held the measure of 'Coggs v. Bernard, 3 Lord Ray- 
 care against accident which one mond, 909. 
 must take to avoid responsibility is 
 
 441 
 
§ 478.] CAEEIEES. [PAET V. 
 
 Lord Mansfield in commenting upon this subject said: "If 
 an armed force came to rob the carrier of the goods, he is 
 liable ; and a reason is given in the books which is a bad oae, 
 namely, that he ought to have sufficient force to repel it. But 
 that would be impossible in some cases; as, for instance, in the 
 riots of 1780 (the Lord George Gordon riots). The true rea- 
 son is for fear it may give room for collusion ; that the carrier 
 maj^ contrive to be robbed on purpose and share the spoils." 
 And so it would seem that this rests upon the -theory that 
 seems to have originated the extraordinary liability itself, 
 namely, to meet the possibility of the collusion of the carrier 
 with robbers, rioters, strikers or thieves. 
 
 Section III. 
 
 Wheee the Loss oe Injuey is the Result of the Acts of 
 
 THE Shipper. 
 
 § 478. Reasons of the liability of the carrier. — The limita- 
 tion stated in the third general heading is one of the more 
 recently added exceptions to the rule governing the liability 
 of the carrier. The early rule of the common law excused the 
 carrier from liability only in cases where the loss or injury vYas 
 the result of an act of God or the public enemy; in all other 
 cases he was an insurer. But to say that the carrier should 
 not be excused when the injury or destruction of the property 
 was the direct result of the shipper's own acts, or because of 
 his own fraud, would be a travesty upon justice which the 
 good judgment of men and that sense of justice which all pos- 
 sess would condemn, and condemning would demand a change 
 so as to better comport with justice and right. So, growing 
 out of the experience and well-balanced judgment of men, there 
 has been added to this rule the just exception now under dis- 
 cussion: so when the loss or injury is the result of the acts of 
 the shipper, the carrier shall be excused from the extraordinary 
 liability. Among the well-defined reasons for placing the car- 
 rier under the extraordinary liability amounting to an insurer of 
 the property, is that he has the entire possession, custody and 
 control of the property throughout the entire time of ship- 
 ment; therefore, because he must bear this extraordinary lia- 
 bility, he has the right to insist that his custody and control 
 shall be absolute and without interference ; even by the owner or 
 
 443 
 
CH. TI.] LIMITATIONS UPON LIABILITY. [§ 479. 
 
 the shipper. Then, too, as we shall see, the shipper by his ac- 
 tions before placing the goods into the custody of the carrier 
 might by some act of his own have impeded the facilities of 
 the carrier, or in fact been the cause of his inability to trans- 
 port the property with that safety that is required, and for such 
 acts upon the part of the shipper common justice and right 
 would demand that the shipper and not the carrier should 
 be liable. 
 
 § 479. Contributory negligence. — As we have already se«n, 
 a very high degree of diligence in caring for and transporting 
 the property is demanded of the carrier; even to the extent 
 that in case of loss of the property his liability is held to be 
 that of an insurer. Where, however, there are duties to be 
 performed upon the part of the shipper and the loss of the 
 property is occasioned by his failure to perform these duties, 
 or where any omission or negligent act of the shipper is a 
 partial cause of the loss or injury, in connection with the 
 duties to be performed by the carrier, it may be said that he 
 has contributed to the loss or injury, and in such case, being 
 himself guilty of contributory negligence, he would not be per- 
 mitted to recover from the common carrier. 
 
 Where the owner of cotton placed it upon a platform for 
 shipment, not leaving any watch, the cotton being destroyed 
 by fire negligently set by the railroad company, it was held 
 in an action against the railroad company for the cotton de- 
 stroyed that it was not contributory negligence per se for the 
 shipper to place the cotton on the platform.' This rule is un- 
 doubtedly based upon the theory that good faith and reason- 
 able diligence from the owner in his dealings with the carrier 
 are required. And so, where the owner of property accompa- 
 nied it for the purpose of taking care of it, and the property 
 was lost and destroyed through negligence of the owner in 
 failing properly to care for it, it was held that he was not en- 
 titled to recover in an action againgt the carrier. The court, 
 in delivering the opinion, said: "It is the right of the owner 
 to commit his property to the exclusive custody of the carrier, 
 and the latter has no right to decline to receive it; but if the 
 owner sees fit to take upon himself any duty connected with 
 the carriage, he does not lose his position as an independent 
 
 1 St. Louis, A. & T. Ey. Co. v. Fire Ass'n of Phila., 55 Ark. 163. 
 443 
 
§§ 480, 481. j CAEEIEES. [PAET V. 
 
 party to the contract, and is bound to discharge it with fidel- 
 ity."' 
 
 § 480. Improperly marking goods by the consignor.— It 
 
 is the duty of the shipper of goods to see that they are prop- 
 ■erlj marked to their destination in order that the consignee of 
 the property and th-e place where the shipment is to be made 
 may be properly entered upon the books of the carrier. It has 
 been held to be the duty of the owner of goods to_ have them 
 properly marked and present them to the carrier or his servants 
 that they may be entered in the books of the carrier, and if he 
 neglects to do this, and there is a misdelivery and loss in con- 
 sequence without any fault on the part of the carrier, the car- 
 rier will not be held liable for the loss.^ But where the goods 
 were incorrectly addressed, but the carrier's agent at the time 
 he received them had knowledge of the error, it was held that 
 the liability of the carrier could not be defeated upon the 
 ground of contributory negligence of the owner, but the car- 
 rier, having knowledge of the error, should have acted upon 
 that knowledge.' 
 
 § 481. Goods improperly packed or loaded. — The duty of 
 packing the goods for shipment, as, for example, in the case of 
 crockery or glassware, or other property which requires proper 
 packing, usually devolves upon the shipper. As we have already 
 seen, the carrier company may demand that the goods shall be 
 properly packed and ready for shipment before it is compelled 
 to receive them for transportation. It would therefore fol- 
 low that where the goods were improperly packed, and for 
 this reason injury or loss resulted, the carrier could not be 
 held liable. So, it is often the duty of the shipper to load 
 the goods into the vehicles of the carrier, and thus put them 
 
 1 Wilson V. Hamilton, 4 Ohio St. not liable. So. Ex. Co. v. Kaufman, 
 
 723. 59 Tenn. (12 Heisk.) 161. And where 
 
 - The Huntress, 12 Fed. Cas. No. fruit trees were missent by the oar- 
 
 ■6,914. rier, the plaintiff having marked the 
 
 3 O'Eourke v. C, B. & Q. R. Co., 44 goods luka, Iowa, without designat- 
 
 lowa, 526; Forsythe v. Walker. 9 Pa. ing Tama county, there being two 
 
 St. 148. An express package was towns named luka in Keokuk county, 
 
 misdirected by the consignors, in con- it was held that the shipper was 
 
 .sequence of which it was delivered guilty of contributory negligence in 
 
 .at a wrong place, and without de- marking the goods. Conger v. Chi- 
 
 fault of the company was destroyed cago & N. W. R. Co., 24 Wis. loV. 
 by fire. Held, that the company was 
 
 444 
 
CH. VI.] LIMITATIONS UPON LIABILITT. [§ 482, 
 
 in readiness for shipment. And where the shipper loaded 
 upon a platform car heavy machinery, and insufficiently 
 packed the wheels, by reason of which the machinery, while 
 being transported by the defendant carrier, broke from its- 
 fastenings without any fault of the defendant in the running 
 of the train, or in maintenance of the track, and was injured,, 
 it was held' that the carrier was not liable therefor, although 
 one of its servants, the yardmaster and forwarder of freight, 
 cars, saw the fastenings and noticed that they were insufficient. 
 The court say in the opinion: "Had the fastenings been 
 sufficient the accident would not have happened. Is the de- 
 fendant chargeable with the consequences of that insufficiency ? 
 We think not, in the sense in which the county court seema 
 to have regarded it. The undertaking and duty of the defend- 
 ant was to transport and deliver safely against all contingen- 
 cies except the act of God, public enemies, and the acts of the 
 parties shipping the property. It was the insurer against 
 everything but those; but as against them, it was bound only 
 to the exercise of reasonable care and diligence. In this case 
 it undertook to transport the goods safely, in the condition in 
 which the plaintiff had packed them, insuring against every- 
 thing but that condition and its consequences, and bound tO' 
 use reasonable care and diligence against injury resulting from 
 that condition." 1 And so reason and justice dictate that if 
 boxes in which goods are packed by the shipper for transpor- 
 tation should be broken upon the journey, and loss is thereby 
 occasioned, and without SiXiy fault on the part of the carrier the 
 goods are destroyed, the carrier could not be held liable.^ 
 
 § 482. Neglect of the shipper to disclose contents or value. 
 The neglect of the shipper to disclose to the common carrier 
 the value of the package delivered for shipment may in some 
 cases be considered as fraudulent upon the part of the shipper, 
 and at least as not comporting with that reasonable rule which 
 the law imposes upon the bailor that he shall deal fairly with 
 
 1 Ross V. Troy & B. R Co., 49 Vt the weight of the hogshead and the 
 
 364. contents thereof were lost. Heid, 
 
 ^" The owner of a hogshead of mo- that the owner could not maintain 
 
 lasses furnished a common carrier an action against the carrier for the 
 
 with skids wherewith to unload the loss." Loveland v. Burke, 120 Mass. 
 
 same from his wagon; but the skids, 139, 31 Am. Rep. 507. 
 owing to a latent defect, broke under 
 
 445 
 
§ 482.] CAEEIEES. [part V. 
 
 the bailee. Cases have often been presented to the courts 
 where valuable articles, and often money, has been stowed 
 away in packages that were delivered for transportation, with- 
 out apprising the carrier of the value of the package; the 
 carrier, thus being misled, failing to exercise the high degree of 
 diligence that he would have exercised had he known the con- 
 tents of the package. In all such cases, if it can be shown 
 that the owner of the property fraudulently secreted the valu- 
 able articles and intentionally kept the fact from the carrier, 
 the courts have excused the carrier from the extraordinary 
 liability. And, indeed, the authorities have gone so far as to 
 hold that the intention to impose upon the carrier is not ma- 
 terial; that it is enough if the conduct of the shipper resulted 
 in an imposition upon the carrier. ""Where a party forwarded 
 jewelry worth a large amount of money in a box by express, 
 taking a receipt which disclosed on its face that the com- 
 pany should not be held liable for anj^ loss or damage of any 
 box, package or thing over $50, unless the just and true value 
 thereof was therein stated, and failed to state the value, and in 
 consequence thereof was charged a less premium than other- 
 wise would have been required," it was held "that it showed 
 that there was a designed suppression of the value of the goods, 
 and that it was unfair conduct on the part of the shipper of 
 the goods, and that the effect of such conduct was to relieve 
 the carrier from his liability as insurer; that had the true value 
 of the goods been disclosed, there would have been an extra 
 charge, and increased precaution would have been taken for 
 the safety of the goods, and that the goods on account of this 
 would have been saved; that the consignor by his conduct 
 elected to take the risk of the loss rather than to subject plaint- 
 iff to the enhanced charges that would have been made had 
 the value of the property been disclosed." ' 
 
 The rule in this respect is thus laid down by the supreme 
 court of Kew York: " If the carrier has given general notice 
 that he will not be liable over a certain amount unless the value is 
 made known to him at the time of delivery and a premium for 
 insurance paid, such notice, being brought home to the knowl- 
 edge of the owner (and courts and juries are liberal in infer- 
 ring such knowledge from the publication of the notice), is as 
 
 1 Oppenheimer & Co. v. U. a Exp. Co., 69 IlL 63. 
 
 446 
 
OH. TI.J LIMITATIONS UPON LIABILITY. [§ 482. 
 
 effectual in qualifying the acceptance of the goods as a special 
 agreement, and the owner, at his peril, must disclose the value 
 and pay the premium. The carrier in such case is not bound 
 to make the inquiry, and if the owner omits to make known 
 the value, and does not therefore pay the premium at the time 
 of delivery, it is considered as dealing unfairly with the carrier, 
 and he is liable only to the amount mentioned in his notice, or 
 not at all, according to the terms of his notice." ^ 
 
 And where valuable goods were delivered to the carrier, an 
 express company, for carriage, the shipper remaining silent as 
 to their real value, the carrier giving him a receipt stating 
 among other things that if the value of the propertj'' described 
 is not stated by the shipper, the holder will not demand of the 
 company a sum exceeding $50 for the loss or detention or dam- 
 age of the property, it was held that a disclosure of the value 
 of the goods was a condition precedent to the attaching of any 
 liability to the carrier, or mereh' ordinary neglect unaccom- 
 panied with any misfeasance or wilful act; and that if goods of 
 greater value are so delivered, silence on the part of the shipper 
 as to the real value, although there is no inquiry and no arti- 
 fice to conceal the value or to deceive, is a legal fraud which 
 discharges the carrier from liability or ordinary negligence for 
 an amount exceeding the limitation made by the carrier.^ 
 
 "And where a shipper delivered to a carrier for transportation 
 a bundle having the appearance of bedding only, but which in 
 fact contained inside of the bedding valuable clothing, such as a 
 silk dress, a brocha shawl and furs of the value of $200 or more, 
 which fact was not disclosed, and thereby shipped them at a 
 low rate of freight, it was held that this was such an imposi- 
 tion and fraud practiced upon the carrier as to release him 
 from any liability for loss, except as to what might properly 
 be termed bedding.'" And where a package containing articles 
 of a brittle nature is delivered to an express company to be 
 transported from one point to another, and the company is 
 not informed what the package contained, so that a degree of 
 
 'Orange Co. Bank v. Brown, 9 2]y[agmn v. Dinsmore. 70 N. Y. 410; 
 
 Wend. 115; Angell on Carriers, sec. Hayes v. Wells, Fargo &Co., 23Cal. 
 
 245; Farmers' Bank v. Champlain 185. 
 
 Trans. Co.. 23 "Vt. 186; Western Trans. 3 Chicago, etc. R. Co. v. Shea, 66 
 
 Co. V. Newhall, 24 111. 466; Hollister IlL 471. 
 V. Nowlen, 19 Wend. 244. 
 
 447 
 
§§ 483-485.] CAEEIEES. [PAET V. 
 
 care may be used proportionate to its fragile character, the com- 
 pany will not be held liable to the extent of common carriers. 
 
 § 483. Loss from mistake or intermeddling on the part 
 of the shipper. — As has often been said, the liability of the 
 carrier is based largely upon the fact of his possession and en- 
 tire control of the goods shipped ; and so, if the shipper inter- 
 meddles or is guilty of any unwarranted interference which 
 occasions loss of or injury to the property, he must suffer for his 
 own acts, and not the carrier. And so where an owner of a 
 horse shipped the horse by placing him in a car and insisted 
 that the door should be left open, and would not allow the 
 servants of the carrier to shut the door of the car, saying that 
 he would take care of the horse himself, and the horse, falhng 
 out through the door of the car, was injured, it was held that 
 the common carrier was not liable for the injury to the horse; 
 it was occasioned by the improper and unwarrantable inter- 
 ference of the plaintiff.' And in a case where a horse was in- 
 jured by jumping through an open window in the car which 
 was left open by the owner, it was held negligence upon the 
 part of the owner, and recovery against the common carrier 
 was not allowed.^ 
 
 § 484. Negligence of the carrier. — "While for these reasons 
 the common carrier is excused from the extraordinary liabil- 
 ity, the rule obtains that was discussed under the other lim- 
 itations, namely : where the injury or loss was occasioned by 
 reason of the act of God or the public enemy, the carrier must 
 at all times exercise at least ordinary diligence in caring for 
 and transporting the injured property, if any, safely for the 
 consignee to the destination of the shipment. 
 
 Section IV. 
 
 "Where the Loss oe Injuey is Caused bt the Inheeent 
 Natuee of the Goods. 
 
 § 485. The exception. — This subject has been so often re- 
 ferred to in previous sections of this volume that it hardly 
 seems necessary to discuss it here. It can be very readily seen 
 
 1 Roderick v. Railroad Co., 7 W. Va» R Co., 37 Minn. 524; Cougar v. Eail- 
 54. road Co., 24 Wis. 157. 
 
 2 Hutchinson v. C, St. P., M. & O. 
 
 448 
 
CH. VI.] LIMITATIONS UPON LIABILITY. [§§ 486, 487. 
 
 that if tbe loss of the property is the result of the inherent nat- 
 ure of the goods or of the property being shipped, and is not 
 the result of any fault of the carrier, it would be at least un- 
 just to hold the carrier to an extraordinary liability, namely, 
 as an insurer for the delivery of such property. As, for ex- 
 ample, where the goods are perishable,^ and because of unfore- 
 seen delay that could not be prevented by the carrier thQ goods 
 have spoiled or become damaged, it would be unjust to hold 
 the carrier in such case. Also in the case of liquids that evap- 
 orate. The loss or damage falling within this exception, when 
 the freight is inanimate, is such that no diligence however great 
 on the part of the carrier could divert, but is entirely attributa- 
 ble to the nature of the goods. 
 
 §486. Animate freight. — In connection with this excep- 
 tion belongs the discussion of its application to the carriage of 
 animate freight. If the freight has life and activity it must of 
 necessity introduce a new element into the question of the lia- 
 bility of the carrier. The fact that he is able by himself or his 
 servants to absolutely control the freight, as he can if it is in- 
 animate, materially adds to the reasonableness of the common- 
 law rule that held the common carrier to the extraordinary 
 liability as an insurer. There is no danger from the action of 
 the freight itself. If it is inanimate it remains where it was 
 packed or loaded or stored; it is only a matter of handling 
 and transporting and delivering it. But where the freight is 
 animate the carrier meets a very different condition. The 
 freight is active, and added to the care of the property merely 
 as freight, is the care that is required because of its life and 
 activity. 
 
 Section V. 
 
 Careting of Live Stock. 
 
 § 487. The exception applies. — Good conscience and fair 
 dealing demand that the rigorous rule of the common-law 
 liability be modified in respect to the carrying of live stock ; 
 
 1 American Ex. Co. v. Smith, 33 them further; the carrier sold them 
 Ohio St. 511. Peaches were shipped for the best price obtainable. It was 
 by the carrier. On account of a held that he was not liable, and dis- 
 bridge being washed away by a charged his duty in selling the prop- 
 freshet it was impossible to carry erty. 
 29 449 
 
§ 487.] CAEEIEES. [PAET T. 
 
 and so it has been held without dissent that where animals 
 are injured or lost while in transit, and the damage or loss is 
 not in any way attributable to the fault of the carrier, but is 
 the result of the inherent nature, vice, condition or disease of 
 the animals, the carrier should be excused from the extraor- 
 dinary liability, and held answerable only for ordinary dili- 
 gence which he must exercise in protecting the shipper so far 
 as possible from loss. 
 
 The rule has been stated in a very recent case as follows: 
 " While a common carrier of goods, who transports live stock, 
 is, as to the latter property, a common carrier, he is exempt 
 from liability for loss or injury caused by the nature and 
 propensities of the animals, and which cannot be prevented by 
 foresight, vigilance and care." ^ 
 
 It has also been held in a well-considered case: "In the 
 transportation of such stock, in the absence of negligence, the 
 carrier is relieved from responsibility for such injuries as occur 
 in consequence of the vitality of the freight. He does not ab- 
 solutely warrant live freight against the consequences of its 
 own vitality. Animals may injure or destroy themselves or 
 each other; they may die from fright or from starvation be- 
 cause they refuse to eat, or they may die from heat or cold. In 
 all such cases the carrier is relieved from responsibility if he 
 can show that he has provided all suitable means of transporta- 
 tion and exercised that degree of care which the nature of the 
 property requires."^ 
 
 Where plaintiff shipped over the defendant's road a span 
 of horses that had been driven together, and had been pre- 
 viously kind and well disposed, and it was found on arrival at 
 their destination that one of them had been very badly kicked, 
 although they had been tied in opposite corners of the car, 
 it was said by the Massachusetts court in its opinion: "Ac- 
 cording to the established rule as to the liability of a common 
 carrier, he is understood to guarantee that (with the well- 
 known exception of the act of God and of public enemies) the 
 goods intrusted to him shall seasonably reach their destina- 
 
 1 Cooper V. Raleigh, etc. R Co., 110 Co., 14 N. Y. 570; Bissell v. N. T. 
 Ga. 659. Cent. R. Co., 25 N. Y. 443; Smith v. 
 
 2 Cragin et al. v. N. Y. Cent. R. Co., M. H. & N. R. Co., 13 Allen, 531. 
 51 N. Y. 61, 63; Clark v. Railroad 
 
 450 
 
OH. TI.J LIMITATIONS UPON LIABILITY. [§ 487. 
 
 tion, and that they shall receive no injury from the manner in 
 which their transportation is accomplished. But he is not, 
 necessarily and under all circumstances, responsible for the 
 condition in which they may be found upon their arrival. The 
 ordinary and natural decay of fruit, vegetables and other per- 
 ishable articles, the fermentation, evaporation or unavoidable 
 leakage of liquids, the spontaneous combustion of some kinds 
 of goods, are matters to which the implied obligation of the 
 carrier, as an insurer, does not extend. He is liable for all 
 accidents and mismanagement incident to the transportation 
 and to the means and appliances by which it is effected ; but 
 not for injuries produced by, or resulting from, the inherent 
 defects or essential qualities of the articles which he under- 
 takes to transport. The extent of his duty in this respect is 
 to take all reasonable care and use all proper precautions to 
 prevent such injuries, or to diminish their effect as far as he 
 •can; but his liability, in such cases, is by no means that of an 
 insurer. . . . They would be unconditionally liable for all 
 injuries occasioned by the improper construction or unsafe con- 
 dition of the carriage in which the horses were conveyed, or 
 by its improper position in the train, or by the want of 'rea- 
 :Sonable equipment, or by any mismanagement, or want of due 
 care, or by any other accident (not within the well-known ex- 
 ception) affecting either the train generally or that particular 
 carriage. But the transportation of horses and other domestic 
 animals is not subject to precisely the same rules as that of 
 packages and inanimate chattels. Living animals have excita- 
 bilities and volitions of their own which greatly increase the 
 risks and difficulties of management. They are carried in a 
 ■mode entirely opposed to their instincts and habits; they may 
 be made uncontrollable by fright, or, notwithstanding every 
 precaution, may destroy themselves in attempting to break 
 loose, or may kill each other." > And so it has been held, " where 
 horses or other animals were being transported by water, and 
 in consequence of a storm broke down the partitions between 
 them, and by kicking each other some of them were killed, 
 "that the carrier would not be held responsible." ^ 
 
 ' Evans v. Fitchburg R. Co., Ill 2 Lawrence v. Aberdein, 5 B. & 
 Mass. 143, 143; Story on Bailm., Aid. 107; Angell on Carriers, sec. 
 .sec. 576. 314a. 
 
 451 
 
§ iS8.J OAEEIEES. [PAET V. 
 
 The United States supreme court have held that " although 
 a railroad company is not a common carrier of live animals in 
 the same sense that it is a carrier of goods, its responsibilities 
 being in many respects different, yet, vphen it undertakes gener- 
 ally to carry such freight, it assumes under similar conditions 
 the same obligations so far as the route is concerned over which 
 the freight is to be carried."' And, indeed, it may be said 
 that there is great unanimity in the decisions of the states upon 
 this question. The Michigan court, however, has adopted a 
 different rule. 
 
 § 488. ■ Michigan rule. — The Michigan court has steadily 
 
 held that, as to the carriage of live stock, railroad companies are 
 not common carriers and can only be held to the exercise of 
 ordinary diligence. This doctrine was very ably discussed in 
 the case of Michigan Southern & N. Ind. 0. R. Co. v. McDonough? 
 The court say: "The transportation of cattle and live stock by 
 common carriers by land was unknown to the common law 
 when the duties and responsibilities of common carriers were 
 fixed, making them insurers against all losses and injuries not 
 arising from the act of God or of the public enemies. These 
 responsibilities and duties were fixed with reference to kinds 
 of property involving, in their transportation, much fewer 
 risks, and of quite a different kind, from those which are inci- 
 dent to the transportation of live stock by railroad. Animals 
 have wants of their own to be supplied; and this is a mode of 
 conveyance at which, from their nature and habits, most ani- 
 mals instinctively revolt; and cattle especially, crowded in a 
 dense mass, frightened by the noise of the engine, the rattling, 
 jolting and frequent concussions of the cars, in their frenzy 
 injure each other by trampling, plunging, goring, or throwing 
 down; and frequently, on long routes, their strength exhausted 
 by hunger and thirst, fatigue and fright, the weak easily fall 
 and are trampled upon, and unless helped up must soon die. 
 . . . It is a mode of transportation which, but for its neces- 
 
 1 Myrriok v. Mich. Cent. R. Co., 107 insurers against losses or injuries re- 
 
 U. S. 103, 107. In Cash v. Wabash R. suiting from the inherent nature, 
 
 Co., 81 Mo. App. 109, it was said: propensities and habits of the animals 
 
 " The duties and responsibilities of a themselves." McCoy v. K & D. R. 
 
 carrier of live animals are those of a Co., 44 Iowa, 434. 
 common carrier with respect to other ^ 31 Mich. 165. 
 property, except that they are not 
 
 453 
 
CH. VI.j LIMITATIONS UPON LIABILITY. [§ 489. 
 
 sity, would be gross cruelty and indictable as such. The risk 
 may be greatly lessened by care and vigilance, by feeding and 
 watering at proper intervals, by getting up those that are 
 down, and otherwise. But this imposes a degree of care and 
 an amount of labor so different from what is required in refer- 
 ence to other kinds of property, that I do not think this kind 
 of property falls within the reasons upon which the common- 
 law liability of common carriers was fixed.' . . , Upon 
 sound principle and upon the English authorities above cited, I 
 think it clear the transportation of cattle by railroad does not 
 come within the reasons of the law applicable to common car- 
 riers, so far as relates to the care of the property and respon- 
 sibility for its loss or injury." ^ 
 
 While the Michigan court is not sustained by the authorities 
 generally, and seems to stand alone upon the general question 
 of liability, a careful analysis of the holdings of the court will 
 show that they are in harmony with most of the courts of 
 the states upon all other questions touching the duties and lia- 
 bilities of the carrier. 
 
 § 489. The duty of the common carrier. — The duty of the 
 common carrier as to the shipment of live stock does not differ 
 very materially in many particulars from the duty of the com- 
 mon carrier as to the shipment of inanimate freight. The car- 
 rier must furnish for the shipper suitable stockyards at their 
 stational point, and what are suitable stockyards is a question 
 for the jury, depending, of course, upon the country surround- 
 ing the station, and the extent of the business of shipping 
 
 1 TheMichigan court cites M'Manus 2 Lake Shore v. Perkins, 25 Mich. 
 TT. Lancashire Ry. Co., 3 Hurl. & Nor- 339; American Ex. Co. v. Phillips,, 29 
 man, 703; Palmer v. Grand Junction Mich. 515; Mich. Cent. R. Co. v. Hale, 
 Ry. Co., 4 M. & W. 758. quoting 6 Mich. 343; GreatWestern R. Co. v. 
 from Parke, Baron: "Does the rule Hawkins, 18 Mich. 427; Smith v. 
 as to negligence apply to live ani- Mich. Cent. R. Co., 100 Mich. 148; 
 mals, as horses? Of course if they Heller v. Chicago, etc. R. Co., 109 
 were stolen it would, but is it so Mich. 53, where the court held " that 
 when they are delivered altliough a railroad company in carrying live 
 hurt or damaged? If misdelivered, stock is not chargeable with the com- 
 the carrier would be liable, but they mon-law liability of a common car- 
 would not be liable for a mere acoi- rier, but is only bound to transport 
 dent to a live animal supposing the with ordinary diligence, skill and 
 carriage to be safe and good and care, and with reasonable dispatch." 
 properly conducted." 
 
 453 
 
§ 489.] OAEEIEES. [PAET V. 
 
 stock.' They must also furnish suitable facilities for loadino' 
 stock into cars, and it should be remembered that the same 
 rule attaches in this class of freight as that which obtains 
 where the freight was inanimate, namely, that when the stock 
 is delivered into the custody and control of the carrier by deliv- 
 ering it for immediate shipment at their stockyards, it is from 
 that time in transit. It is the duty of the company to furnisli 
 suitable cars for feeding the stock. This is a matter that has 
 often been before the courts.^ There must be cars suited to the 
 particular season of the year, the climate of the country, as far 
 as may be, and it has been held that they must be free from in- 
 fectious or contagious diseases that the stock would be liable 
 to contract by shipment in them.' And where stock con- 
 tracted a disease by reason of shipment in the cars of the com- 
 pany, the company was held liable for the damage; in other 
 words, it was held that this was negligence upon the part of 
 the carrier. It is also the duty of the company to properly 
 feed, water and care for the stock where there is no contract 
 exempting them from that liability. This, however, is a mat- 
 ter that is largely governed by special contract.* But even 
 where the shipper by contract takes upon himself the duty to 
 look after the feeding and watering of the stock, it is incum- 
 bent upon the carrier to furnish suitable places and means for 
 feeding and watering. The running of the trains and the 
 
 1 Covington Stockyards Co. v. in them, renders the railroad com- 
 
 Keith, 139 U. S. 128; Gulf R. Co. v. pany liable for damages." InBettsv. 
 
 Trawick, 80 Tex. 370; Tex. & Pac. R Chicago, etc. R. Co., 92 la. 343, 25 L. 
 
 Co. V. Fainbrough, 55 S. W. 182. R. A. 248, it was held, " a carrier is 
 
 ^Coupelandv. Housatonic R. Co., liable for injuries to live stock oar- 
 
 61 Conn. 531, 15 L. R. A. 534, held, ried by it if it fails to provide cars 
 
 " the carrier is not an insurer of live reasonably safe to transport it." 
 stock, but must provide suitable '' In Missouri Pac. R. Co. v. Fagin. 
 
 means for its conveyance and use all 72 Tex. 137, 2 L. R. A. 75, it was held, 
 
 reasonable diligence and forethought "a carrier has the duty to feed and 
 
 in the varying circumstances aris- water stock during transportation, 
 
 ing in the business." Bells v. Chicago, and cannot transfer it to the shipper 
 
 etc. R. Co., 92 la. 343; Great Western, by a custom requiring him to go 
 
 etc. R. Co. V. Hawkins, 18 Mich. 427; along on the same train with the 
 
 Pratt V. Ogdensburg R. Co., 103 Mass. stock to feed and water them at his 
 
 557. his own risk and expense." 111. Cent. 
 
 3 In 111. Cent. R. Co. v. Harris, 184 R. Co. v. Adams, 43 111. 474; Toledo, 
 
 111. 57, 48 L. R. A, 175, it was held, W. & W. R. Co. v. Thompson, 71111. 
 
 "the communication of Texas fever 734. See note to Missouri Pao. R. Co. 
 
 by infected oars, to cattle transported v. Fagin, 2 L. R. A. 75, 
 
 454 
 
OH. VI.] LIMITATIONS UPON LIABILITY. [§ 489. 
 
 transporting of the stock is always under the supervision and 
 control of the carrier. And it is the carrier's duty to stop his 
 trains at suitable places, and facilitate the unloading, yarding 
 and caring for the stock, giving suitable time for feeding and 
 watering, and loading them again into the cars. And where 
 by contract it was expressly agreed that the company was not 
 to be charged with the duty of feeding or watering the ani- 
 mals that were being shipped, but was to afiford the shipper 
 proper facilities for doing so, the company was held liable for 
 damage occasioned by reason of carrying^the stock forty miles 
 beyond the station where they were to be fed, and keeping 
 them in the cars for two days without food or water or care, 
 beyond A., where they were to be delivered.' 
 
 "And where a railroad company accepts horses for ship- 
 ment over its road under a contract which provides that they 
 are to be loaded, unloaded, fed, watered and cared for while 
 in the cars by the shipper or owner, and at his expense and 
 risk," it was held " that the company, as a bailee for hire, hav- 
 ing control of the oars in which the horses are placed, is bound 
 at least to furnish the shipper an opportunity to give the ani- 
 mals the care which they require." The court in an opinion 
 say: " The provision in the contract that the stock is to be 
 loaded, unloaded, fed, watered and otherwise cared for while 
 in the cars by the shipper or owner does not mean that the 
 duty is to be performed by the shipper while the train is in 
 motion, and without 'being afforded an opportunity by the com- 
 pany to perform the duty. If the provision should be given 
 any force, it creates a very fair inference that the company 
 will afiford the shipper the opportunity to perform the duty 
 which it has seen fit to provide shall rest upon him." ^ 
 
 It is also the duty of the carrier to furnish facilities for un- 
 loading the stock at its destination and for keeping them until 
 dehvered to the consignee.' And so where the carrier al- 
 lowed its stock pens to become in a condition unfit to hold 
 the stock on account of the fences being rotten and insecure, 
 
 ' Bryant v. S. W. Ry. Co., 68 Ga. ' Chesapeake R. Co. v. American 
 805. Exchange Bank, 92 Va. 495; Gulf, 
 
 2 Smith V. Railway Co., 100 Mich. etc. Co. v. York, 2 Tex. App. Civ. 
 US, 156, 45 Am. & Eng. R. Cas. 348. Cases, sec. 812. 
 
 455 
 
g§ 4'JU, 491.J CAEKIEES. [part V. 
 
 the carrier was held liable for cattle that escaped from them.' 
 All these duties aud obligatious are laid upon the carrier be- 
 cause of the rule of law that demands that he shall at all times 
 be diligent and do whatever is necessary to be done in order 
 to safely transport the stock which he is employed to carry, 
 and deliver it to the consignee. As, for example, it has been 
 held that it was the duty of the carrier to prevent the injury 
 of animals because of excessive heat when it can be reasonably 
 done.^ 
 
 § 490. Statutes of United States with reference to duties 
 of the carrier. — Statutes have been passed both by the United 
 States congress and the legislatures of the states regulating the 
 duties of common carriers, especially their duties with refer- 
 ence to the carriage of live stock. We have not space here to 
 cite and quote statutes. Notable among the statutes in this 
 respect are those requiring the common carrier to feed and 
 water stock in transit, providing that they shall not be in the 
 cars consecutively for more than twenty-eight hours. Xotice 
 the statutes of the different states and of the United States. 
 
 § 491. The shipper must deal fairly with the carrier.— It 
 is a duty incumbent upon the shipper to deal fairly with the 
 carrier. If he knows of any peculiarity of the animals that 
 would increase the risk or liability of the carrier, he should 
 disclose it at the time of making the shipment. As, for exam- 
 ple, that the animals, or any of them, are wild, ungovernable 
 or vicious, or liable to injure the others; or, if they have been 
 exposed to any disease, especially infectious or contagious dis- 
 ease which might be communicated or infect the cars or yards 
 of the carrier. 
 
 It goes without saying that if the shipper has by reason of 
 failure to disclose any conditions or facts known to him, the 
 withholding of which results m injury or damage to others, and 
 also in subjecting the carrier to the payment of damages, he 
 is liable to the carrier for the damages which are shown to 
 result from such unfair action upon his part; It is but another 
 application of the principle that the shipper must be held 
 
 1 Cooke V. Kansas City, etc. R. Co., 76 III. 393; Sturgeon v. St. Louis, eta 
 57 Mo. App. 471. R. Co., 65 Mo. 569; Heller v. Chicago 
 
 2 111. Cent. R. Co. v. Adams, 43 111. & Grand Trunk R. Co., 109 Mich. 5'3. 
 474; Toledo, etc. R. Co. v. Hamilton, 
 
 456 
 
CH. VI.] LIMITATIONS UPON LIABILITY. [§ 492. 
 
 liable for damages resulting from his own fault; but such con- 
 duct of the shipper will not excuse the carrier for negligence 
 in shipping, transporting or delivering the goods.^ 
 
 Section VI. 
 
 Where the Loss oe Injuey is Occasioned feom the Exee- 
 ciSE of Public Authoeity. 
 § 492. The reasons for the exception. — The reason that 
 this exception obtains is apparent. Public law and authority- 
 must dominate and govern all persons, companies and business 
 within its jurisdiction. Upon that depends their protection, 
 and at its hands they must accept rules governing their lia- 
 bility. So, where the law or public authority is set in motion 
 it is presumed to do justice, and whomsoever it affects must 
 accept the consequences of its just adjudication. As where 
 goods are delivered to a common carrier for shipment, and 
 are levied or attached in the hands of the carrier upon a 
 valid writ of attachment or execution, by means of which 
 the carrier is deprived of the possession of the property by 
 the officer who serves the writ, the carrier is not liable for 
 the non-delivery of the goods, provided the writ upon its face 
 is a valid writ, and from a court having competent juris- 
 diction to issue it. Where plaintiffs delivered to defendants 
 certain goods consigned to themselves which were seized and 
 talien from the carrier by a sheriff upon a writ of attachment, 
 the writ under which the sheriff acted being a valid one, it 
 was held that " a carrier in possession of the consignor's goods 
 is clothed with all the power and authority to protect them that 
 the owner himself would have; and while the goods are in 
 transit it is his duty to use all the means that human agency 
 can command to give such protection, and it is only after such 
 means are exhausted that he can be heard in his defense against 
 the liability the common law casts if injury or damage ensue." 
 The court say: "In this case the court finds that the goods 
 in question were taken by the sheriff without the consent, con- 
 
 1 American Exp. Co. v. Smith, 33 them farther; the carrier sold them 
 Ohio St. 511. Peaches were shipped for the best price obtainable, and it 
 by the carrier. On account of a was held that he was not liable, and 
 bridge being washed away by a discharged his duty in selling the 
 freshet it was impossible to carry property. 
 
 457 
 
§ 492.] CAEEIEES. [PAET 
 
 V. 
 
 nivance, privity or procurement of the defendant, and that it 
 immediately notified the plaintiffs of the seizure; but this is not 
 enough to exculpate the defendant from liability, under the- 
 facts found. There is no pretense that the writ under which 
 the sheriff acted ran against the defendant, the consignors or 
 this property, nor yet against the latter's vendor of the goods. 
 It does not appear that he was directed by the writ to levy it 
 upon any specific property in the custody of the defendant or 
 of the consignors. Prima facie he had no more right to enter 
 the car and take these goods than had any other trespasser. 
 It appears from the record that the defendant knew nothing 
 in regard to the title of the property more than what it ob- 
 tained from the consignors; and it nowhere appears that the 
 defendant was informed by the sheriff, or any other person,. 
 upon what ground the plaintiffs in the writ, or himself, claimed 
 the right to seize the property. . . . The defendants suf- 
 fered the property to be taken from the carrier by a tres- 
 passer, and this brings the case clearly within the liability of 
 the undertaking, and entitles the plaintiff to a recovery." ^ So 
 it follows that the carrier may resist this authority where it 
 appears that the goods are not the property of the defendant in 
 the attachment. 
 
 iPingree v. D. L. R. Co., 66 Mich. 143; Simpson v. Dufour, 126 In A 322. 
 
 458 
 
CHAPTEK VII. 
 
 WHEN THE DAMAGE OE INJURY IS THE RESULT OF DEVIA- 
 TION OR DELAY. 
 
 i 493. Implied undertaking of the 
 
 carrier. 
 494 Notice to the carrier. 
 
 495. What is unreasonable de- 
 lay — How avoided. 
 
 496. Reasonable diligence. 
 
 497. Delay occasioned by deviation 
 
 from route. 
 
 498. Loss or injury occurring 
 
 on deviated route — Act of 
 God or public enemy, etc. 
 
 499. Often duty of the carrier 
 
 to delay or deviate from 
 course. 
 
 500. When delay and deviation on 
 
 account of strikes or riots. 
 
 501. May discriminate as to ship- 
 
 ping perishable goods. 
 503. Duty of carrier as to goods 
 after disaster. 
 
 § 493. Implied undertaking of the carrier. — The carrier 
 impliedly undertakes on receiving the goods for shipment that 
 he will, without unreasonable delay, transfer them by his own 
 route, or the route he is using and has the right to use or con- 
 trol, to their destination, and without deviation from the usual 
 line or lines of transportation, and within a reasonable time 
 deliver the goods to the consignee at the point to which they 
 were shipped.^ In some of the states this prompt shipment 
 and forwarding of the goods is required by statute. A common 
 carrier, as we have seen, may be excused from receiving goods 
 for shipment for certain reasons, among which is that he has 
 not sufficient facilities for handling the goods; but he is bound 
 to know when he accepts the goods that he can ship them ; 
 
 1 Hales V. London & N. W. R. Co., 
 4 B. & a Rep. Q. B. 66, 116 E. C. L. 66. 
 Blackburn, J., said: "The obligation 
 of the carrier to carry depends on his 
 public profession, and therefore he is 
 bound to carry only according to the 
 route that beholds out to the public. 
 But he is bound to deliver in a rea- 
 sonable time, having regard to that 
 route. It is no breach of his duty 
 that he does not carry by a shorter 
 
 route than that which he professes. . 
 If the customer wishes his goods sent 
 by a shorter route than the accus- 
 tomed one he should ask for it, and 
 if refused he could exercise his 
 choice of sending by another carrier; 
 but when the goods are sent by the 
 usual route the carrier must use rea- 
 sonable diligence, and whether he 
 has done so is a question of fact." 
 
 459 
 
§ -1:04.] CAEEIEES. [PAET T. 
 
 that he has or can obtain facilities for shipping them in a rea- 
 sonable time. lie cannot remain silent as to this, receive the 
 goods, hold them in his warehouse to the damage of the ship- 
 per or consignee, and answer that for want of facilities he did 
 not ship them. In such case it is the duty of the carrier to 
 give the shipper notice of the situation, that he is unable to ship 
 at once because of lack of means of transportation, thus giving 
 the shipper the option of shipping them by another cart-ier if 
 he desires, or leave them with the carrier making the excuse. 
 Under certain circumstances the carrier would be excused if 
 his business becomes congested and there is such a press of busi- 
 ness that the carrier cannot transport the goods at once. In 
 such case, however, if the carrier has notice of the fact, or of 
 facts from which he might reasonably conclude that that would 
 be the result, his duty is to give the shipper notice of the con- 
 dition, and that he cannot, or probably cannot, transport the 
 goods at once; in other words, if the carrier has no legal rea- 
 son for not complying with the request or demand of the ship- 
 per for immediate shipment, he is bound to notify him in order 
 that he may have the option above mentioned. So, where a 
 plaintiff delivered to an express company venison for shipment 
 on the promise of the agent to forward it by a certain train, 
 and such train did not stop for express matter, and the agent 
 gave no further notice to the shipper, but forwarded it by a 
 train several hours later, and the venison was spoiled by the 
 delay, the express company was held to be liable for the loss.' 
 
 § 494. ^'otice to the carrier. — It seems, too, that the 
 
 law recognizes that where the shipper has given to the carrier 
 notice that he desires the freight to be forwarded at once be- 
 cause he has immediate use for it, or, as is sometimes the case, 
 that it is for the purpose of filling a certain contract, in 
 such case the carrier will be held bound where he receives the 
 goods for shipment to fulfill the contract of affreightment so as 
 to comply with the notice given by the shipper. And where 
 the carrier was informed by the shipper, at the time of deliver- 
 ing certain horses to be shipped to Alaska, that the purpose 
 in shipping the horses was to use them in freighting goods, 
 and that there was a great demand at that point for horses of 
 the kind he Avas shipping, and that he could make a large amount 
 
 1 Cantwell v. Pacific Ex. Co., 58 Ark. 487. 
 4G0 
 
CH. VII.] DAMAGE OE INJURY FKOM DEVIATION OE DELAY. [§ '494. 
 
 of money each day by the use of them, and wanted them 
 delivered at a certain time, and they were not delivered until 
 twenty-seven days after the time agreed, on, the evidence show- 
 ing that during the interval between the time when the horses 
 were to arrive and the date of their arrival they could have 
 earned a large amount of money, it was held that in estimat- 
 ing the plaintiff's damage the jury might consider what might 
 have been earned by the horses during the time of delay ; the 
 court saying " that the general rule is thus stated : No recov- 
 ery can be had for loss of profits in contracts of sale or con- 
 templated by the shipper unless the facts and circumstances of 
 such sale are communicated to the carrier upon shipment." ' 
 The reason of the rule is, that the contract of affreightment is 
 presumed to have been made in view of the results which to 
 the knowledge of both parties thereto would naturally follow 
 its breach. While there is respectable authority for holding 
 that profits are never in any case recoverable, since it may 
 never be known what profits might have been earned, the 
 weight of authority, both English and American, sustains the 
 rule that the party injured is entitled to recover all his dam- 
 ages, including gains which he might have earned as well as 
 losses that he sustained, provided they are certain, and are 
 such as might naturally have been expected to follow the 
 breach. 
 
 This rule does not run counter to that settled rule of dam- 
 ages, that profits which are remote or uncertain, mere ex- 
 pected profits depending upon numerous contingencies, can- 
 not be recovered because they cannot be said to be the direct 
 and immediate result of the non-fulfillment of the contract or 
 agreement; the question under discussion is a very different 
 one, depending upon a very different state of facts ; here the 
 parties had in mind the very profits that could be made, as 
 where it is known and understood that the goods are in de- 
 mand at a certain price if they can be delivered at a certain 
 time, the shipper giving the carrier notice of this and contract- 
 ing to ship the goods to fill the particular demand, or perhaps 
 
 1 Pac. Express Co. v. Darnell Bros., Ing Co. v. Pinch, 91 Mich. 156; Grind- 
 63 Tex. 639; Brown v. Hadley, 43 ley v. Express Co., 67 Me. 317; 111. 
 Kan. 267, 23 Pac. 492; Brownell v. Cent. R. Co. v. Cobb et al.,64 111. 128. 
 Chapman, 84 Iowa, 504; Manufactur- 
 
 461 
 
§ 494.] CAEEIEES. [PAET V. 
 
 to fill a certain order at an advanced price. The shipment is 
 made for this purpose, and the carrier knowing it, and maldno' 
 the contract for the purpose of carrying out the object of the 
 shipment, in such case every sentiment of justice would de- 
 mand that the carrier should be compelled to fulfill his con- 
 tract, and certainly, if he knows that he cannot, instead of 
 receiving the goods for shipment he should notify the ship- 
 per that he is unable to carry the goods as desired; but if the 
 contract is made in contemplation of such a state of facts, it 
 may be said in case of failure on the part of the carrier that 
 the damages resulting from such failure were contemplated 
 by the parties at the time of making. the contract, and the car- 
 rier would be liable. If the property shipped is for immediate 
 use, and the object is well understood by the carrier because 
 of receiving notice thereof from the shipper at the time of the 
 shipment, then if the carrier fails and damages result, the car- 
 rier would be liable upon the same theory; for the resulting 
 damages must have been contemplated at the time of making 
 the contract of shipment. This has already been illustrated by 
 the case of Pacific Exp. Go. v. Darnell Bros.^ Such damages 
 cannot be said to be speculative or depending upon uncertain 
 contingencies. Nor are they remote from the contract made 
 by the parties, for the situation was fully known and contem- 
 plated — indeed, was a part of the contract, and somewhat in the 
 nature of a condition in the minds of the parties making the 
 contract, which should be complied with.^ 
 
 1 63 Tex. 639, and cases cited aiite, " The principle is now settled that 
 
 g 494. whenever either the object of the 
 
 2 In Hadley v. Baxendale. 26 Eug. sender is especially brought to the 
 
 Law & Eq, 389, Alderson, B., said: notice of the carrier, or circum- 
 
 " Where two parties have made a stances are known to the carrier 
 
 contract which one of them has from wliich the object ought in rea- 
 
 broken, the damage which the other son to be inferred, so that the object 
 
 party ought to receive in respect of may be taken to have been within 
 
 such breacli arising naturally, i. e., the contemplation of both parties, 
 
 according to the natural course of damages may be recovered for the 
 
 tilings, from such breach of the con- natural consequences of proof of that 
 
 tract itself, or such as may reason- object." Howard v. Manufacturing 
 
 ably be supposed to have been in the Co., 139 U. S. 199; Railroad Co. v. Hale, 
 
 contemplation of both parties at the 83 111. 360; Allis v. McLean, 48 Mich, 
 
 time they made the contract as the 428; Harvey v. Railroad Co., 124 
 
 probable result of the breach of Mass. 421; Sedgwick on Dam. (8th 
 
 it." And Cockburn, J., in Simpson v. ed.), 174. 
 Railroad Co., 1 Q. B. D. 274, said: 
 
 463 
 
<3H. VII.J DAMAGE OE INJUEY FEOM DEVIATION OE DELAY. [§ 495. 
 
 In Manufacturing Co. v. Pinch'^ the Michigau court held 
 that in a suit to recover for machinery and repairs furnished 
 for defendant's flouring mill, he was entitled to show in reduc- 
 tion of plaintiff's claim the value of the use of the mill while 
 it was compelled to lie idle because of the failure of the 
 plaintiff to complete the contract to repair within the time 
 specified. 
 
 In Olarke v. JVeedles'' it was held, "if goods are received by 
 common carriers with orders to ship immediately, and are 
 stored in their warehouse, the navigation being obstructed, and 
 there consumed by fire, they are liable for the value to the 
 owner as common carriers." And where cattle were deliv- 
 ered for shipment to the common carrier, it was held that a 
 " conversation had with the agent of the carrier shortly before 
 the execution of the contract was admissible to show notice to 
 the carrier of the plaintiff's intention to sell his cattle on a 
 particular day;" and it appearing that the cattle were un- 
 loaded through defendant's mistake, and upon being reloaded 
 into the same car a broken wheel was discovered which neces- 
 sitated additional delay, so that the cattle were delivered to 
 the connecting carrier some seven hours after they should have 
 been delivered, and arrived at their destination some five hours 
 too late for that day's market, it was held that it was a ques- 
 tion for the jury whether -or not such delay was unreasonable 
 and attributable to defendant's negligence.' 
 
 § 495. What is unreasonable delay — How avoided. — 
 
 What is unreasonable delay in the shipping or transportation 
 of the goods is a question of fact for the jury depending upon 
 very many circumstances; the kind of goods that are shipped, 
 the weather, season of the year, the press of business, — no 
 fixed rule can be laid down that will define it or govern in 
 determining it in all cases ; the circumstances of each particu- 
 lar case must determine the question. The court, in the case 
 of McGra/w v. Baltimore cfe 0. R. Go.,^ said: "The obliga- 
 tion of the common carrier is to transport the goods safely 
 and within a reasonable time, but what is a reasonable time 
 
 196 Mich. 156. Cases, 188, 41 Am. Rep. 696; Vick&- 
 
 2 35 Pa. St. 338. burg v. Ragsdale, 46 Miss. 458; Cobb 
 
 ' Mo. Pac. R. Co. V. Hall, 66 Fed. 868. v. 111. Cent. R. Co., 38 Iowa, 601. 
 " 18 W. Va. 361, 9 Am. & Eng. R. 
 
 463 
 
§490.] CAEEIEItS. [part V. 
 
 is not susceptible of being defined bj any general rule; the cir- 
 cumstances of each particular case must be adverted to in order 
 to determine what is a reasonable time in that case. But it 
 may be said that the mode of conveyance, the distance, the 
 nature of the goods, the season of the year, the character of 
 the weather, and the ordinary facilities of transportation are 
 to be considered in determining whether in the particular case 
 there has been an unreasonable delay." 
 
 § 496. Same subject — Reasonable diligence Prom what 
 
 has been said it may be concluded that the general rule is 
 that the carrier is liable for any damage resulting from delay 
 in transporting the goods when the delay is attributable to 
 the negligence of the carrier or his servants; but when it ap- 
 pears that he is not guilty of negligence, but on the contrary 
 has done all that could be reasonably expected of him, and has 
 been diligent in his undertaking to deliver the goods, then in 
 the absence of an express contract for the delivery upon a cer- 
 tain time he will not be held liable; reasonable diligence will 
 excuse the failure upon the implied contract or undertaking. 
 The carrier is bound to deliver the goods at their destination 
 within a reasonable time, except when he is under an express 
 contract to do so at a stated time. The duty to so deliver is an 
 implied duty, but it may be overcome by proofs on the part of 
 the carrier showing that he has used all reasonable care and 
 diligence in transporting the freight, and that the delay was 
 not occasioned on account of his fault or negligence, but be- 
 cause of unforeseen and unavoidable hindrance or misfortune, 
 or unavoidable accident not necessarily the result of the act of 
 God or the public enemy, but such circumstances and condi- 
 tions, even though they resulted from the act of man, that he 
 could not by ordinary diligence avert. As was said in McGraw 
 V. Bidtimore & 0. Ji. Co. : ' "It is obvious that ordinarily the 
 delay in shipping articles not liable to decay or damage, such 
 as iron, wool, cotton, grain, and things of like character not 
 liable to be injured by a few days' delay, would be no test in a 
 case where the delay of a day in transportation would result 
 in loss or damage by reason of their nature or inherent char- 
 acter, such as live stock, fish, oysters, fruits, vegetables and 
 things of like character. In the one case there is nothing in 
 
 118W. Va.361, 367. 
 464 
 
OH. Til. J DAMAGE OE INJUET FEOM DEVIATION OE DELAY. [§ 496. 
 
 the thing itself which would induce a prudent business man to 
 anticipate injury from a temporary delay in transportation, 
 while in the other case no prudent business man, from the nat- 
 ure of the thing itself, might reasonably anticipate the loss or 
 damage from delay. So the season of the year is an element 
 to be considered ; some articles, as some kinds of vegetables, being 
 of that nature that at certain seasons of the year a brief delay 
 would be harmless, whereas in another season of the year the 
 delay would result in loss or damage." And so where the- 
 delay complained of occurred upon the mountain division of a 
 road, and was occasioned by an unexpected storm of unusual 
 severity upon that division, the operator of the road using every 
 reasonable effort to keep the line open, it was held that the 
 carrier was not liable ; that a common carrier is liable for delay 
 in the transportation and delivery of goods only when it is 
 caused by his want of ordinary care and diligence.^ And where 
 a carrier's canal-boat was run into by a scow which made it 
 necessary for him to stop for repairs, the delay thus occasioned 
 was held excusable.^ And the same was held where the delay 
 was on account of deep snow which made the road temporarily 
 impassable; or from the washing away of a bridge by a storm 
 and freshet. It may be said, however, that the rule governing 
 the liability of the carrier for delay is very different from the 
 measure of liability in case of loss or injury to the property. 
 For delay in transporting and delivering the merchandise at 
 its destination the law holds the carrier for liability on account 
 of his negligence, while for loss or injury of the property he is 
 held not on account of negligence or fault, but as an insurer, 
 to be excused only where the loss or injury was the result of 
 the act of God, the public enemy, the act of the shipper, the 
 inherent nature of the goods, the requirements of the law or 
 of public authority. 
 
 1 Palmer v. Atchison, etc. R. Co., him within what would be under 
 
 101 Cal. 187. ordinary circumstances a reasonable 
 
 2 Parson v. Hardy, 14 Wend. 215; time; he may excuse delay by acci- 
 
 Balentine v. Railroad Co., 40 Mo. 491 ; dent or misfortune, not inevitable or 
 
 Hutch, on Carriers, sec. 331. In Geis- produced by the act of God, but the 
 
 mer y. L. S. & N. E. Co., 102 N. Y. result of the conduct of men; all 
 
 563, it was held that "in the absence that can be required of him is that 
 
 of special contract there is no abso- he exercise due care and diligence to 
 
 lute duty resting upon a common guard against delay and to forward 
 
 carrier to deliver goods intrusted to the goods to their destination." 
 30 465 
 
§§ 497, 498.] CAEEiBES. [part v. 
 
 § 497. Delay occasioned by deviation from route. — Where 
 the delay is occasioned on account of deviation from the usual, 
 ordinary and expected route of the carrier in conveying the 
 goods, it then becomes more serious. As we have seen, there 
 is an implied contract binding upon the carrier to carry the 
 goods over his own line, and if they are to be forwarded over 
 other lines to send them by the usual route to their destina- 
 tion. So, where goods are conveyed by ship or boat the same 
 presumption and implied understanding exists, and the ques- 
 tion is, under what circumstances may the carrier deviate from 
 this course. If the deviation from the route is unnecessary, 
 there seems to be no question but that the carrier would be ha- 
 ble; for by deviating from the route he becomes a wrong-doer; 
 but where it is necessary, and the necessity arises during the 
 time the goods are in transit, and the carrier has exhibited a 
 sound discretion in making the deviation, it seems that the 
 carrier would not be liable. 
 
 § 498. - — Loss or injury occurring on deviated route — 
 Act of Godj public enemy, etc. — Upon the consideration of 
 this question, necessarily arises the further question as to the 
 liability of the carrier for loss, even though it is occasioned by 
 the act of God, the public enemy, or those causes which are 
 said to excuse the carrier when they are the direct result of 
 the loss. And here again we are met with the question as to 
 whether the deviation is necessary; whether it occurred dur- 
 ing the time the goods are actually in transit, and whether the 
 carrier exercised sound discretion. It seems to be well under- 
 stood, as we have already stated, that the carrier cannot un- 
 necessarily deviate from his route; that the shipper, when he 
 intrusted his goods to the carrier, did it with the understand- 
 ing that they would be carried over the usual route of the 
 carrier. But there often come times while the goods are in 
 transit where sound discretion and ordinary diligence dictate 
 that to proceed upon the course would be to encounter great 
 danger, with a probable loss of the property in transit. As, 
 for example, where a ship is proceeding with her cargo and 
 encounters serious danger by floating ice, sound discretion and 
 good judgment would dictate that the course of the vessel 
 should be changed, and that she should undertake to make her 
 port by some other course than that usually pursued, because 
 
 466 
 
OH. Til.] DAMAGE OE INJURY FEOM DEVIATION OE DELAY. [§ 498. 
 
 to pursue the usual course the master would encounter perils 
 and dangers that could not be successfully overcome. It seems 
 safe to say that when the deviation occurs during the time the 
 goods are in transit and is necessary, and good judgment and 
 sound discretion are used, in such case the carrier would be 
 heard to make the usual defenses that would excuse him if 
 there was loss or injury. But if he deviates from the course 
 unnecessarily, then he cannot be excused from loss, even 
 though while upon the changed course the loss should occur 
 by storm, tempest, lightning, or an act of God, or even by the 
 public enemy, or by reason of the causes which usually excuse 
 the carrier, and which would excuse him in this case had he 
 proceeded without deviation and by his usual route. A case 
 often cited is the case of Crosby v. Fitch} This was an action 
 to. recover damages for the loss of fifty-two bales of cotton be- 
 longing to the plaintiff upon the defendant's boat, shipped at 
 New York to be transported to Norwich. It was claimed by 
 the plaintiff that the usual route from New York to New Lon- 
 don and Norwich was through Long Island Sound ; that the 
 master sailed from New York with the sloop having the cot- 
 ton on board and departed from such usual route, going out- 
 side of Long Island Sound to the port of New London without 
 any adequate or justifiable necessity; that by means thereof 
 the sloop and the cotton were exposed to a severe storm while 
 - outside of Long Island and thus the cotton was lost. The de- 
 fendant claimed that navigation of Long Island Sound was 
 obstructed by ice, and that it was uncertain at what time the 
 Sound would become navigable, and in the opinion of the mas- 
 ter it would not become navigable for several days; that the 
 closing of the Sound by ice for so long a period was unusual, 
 and that to have remained in the port at New York would 
 have exposed their cargo to considerable loss and damage 
 from fire, thieves and other causes. It was conceded upon the 
 trial that the usual track of the vessel from New York to New 
 London and other eastern ports was through Long Island 
 Sound both summer and winter. The court, in its opinion, 
 say: "Was the master in the present instance justified in de- 
 parting from this route and performing his voyage through 
 the open sea on the south side of Long Island in the month of 
 
 ilSConn. 410,43L 
 467 
 
§ 499.] CAEEIEES. [past V. 
 
 February ? "Was there any reasonable necessity for this ? We 
 think there was not. The claim is that the navigation of the 
 sound was obstructed by ice and so continued longer than had 
 been usual in former seasons. Still, we see no necessity for 
 the sailing of this vessel while this obstruction continued. The 
 obstruction was of such a nature that the master and all con- 
 cerned knew that at a day not very remote it must be removed. 
 This was known when the goods were placed on board. There 
 was no contract which rendered it the duty of the master to 
 sail by a given time, or to complete his voyage before a speci- 
 fied day, and if there had been, the freezing of the Sound and 
 the unusual continuance of the obstruction was such an act of 
 God as would probably have justified a longer stay in the port 
 of departure. The distinction is a very obvious one between 
 the present case and one in which a vessel already on her voy- 
 age and in transitu departs from the usual route by reason of 
 obstructions of this nature, or of blockades, etc. In such 
 cases the master must act; a necessity is thrown upon him; 
 and if he is governed by a sound discretion, he stands justi- 
 fied. But here it may as well be claimed that the master would 
 be justified in leaving a safe port during the existence of a 
 violent tempest, or in the face of blockading or embargo re- 
 strictions, because it might be uncertain how long these im- 
 pediments would be in the way. The port of destination in 
 this voyage was Norwich; and it is conceded that the obstruc- 
 tion caused by ice to the navigation of the river Thames usu- 
 ally continues several days longer than the Sound continues 
 frozen. The master knew, therefore, that he could not com- 
 plete his voyage earlier in consequence of the course he 
 adopted." In that case the carrier was held liable for the 
 property lost. This question often arises in actions against 
 insurance companies, and is an important principle. 
 
 § 499. Often duty of the carrier to delay or deviate 
 
 from course. — In the light of Avhat has been said, it is not dif- 
 ficult for us to understand that there may be cases where the 
 courts would be justified in holding that it is absolutely the 
 duty of the common carrier to delay the transportation of 
 the goods, or even to deviate from the usual course, if to leave 
 the port and proceed upon her journey the vessel must neces- 
 sarily encounter a dangerous tempest and storm which would 
 
 468 
 
OH. Til.] DAMAGE OE INJUET FEOM DEVIATION OE DELAY. [§ 499. 
 
 cause her loss and the destruction and loss of her cargo; al- 
 though the tempest and storm may be considered to be the 
 act of God, the carrier would not be excused for the loss, as 
 we have already seen. In such case it is his bounden duty to 
 remain in the port until the storm has passed. If it is cer- 
 tain that to proceed with a railroad train it will encounter wash- 
 outs and freshets and dangers which cannot be overcome, al- 
 though they may be the direct result of the act of God, still, 
 to unnecessarily encounter them would render the carrier lia- 
 ble, and it would be no defense to say that these calamities 
 were the act of God. In such cases it is the duty of the car- 
 rier to delay the journey; that is to say, he is not only excused 
 for the delay, but it is his bounden duty to delay. And so, if 
 to proceed with the vessel upon her course she is certain to be 
 captured by the blockade force of the enemy, in such case the 
 master is confronted with a necessity demanding the change 
 or deviation of her course; and, after using sound discretion, 
 good judgment and reasonable diligence, he will not be held 
 for delay. Indeed, it would be said in such case that it was 
 his duty to deviate and change his course; and if he did not, 
 and with knowledge of the fact that to proceed upon her 
 course he would be captured by the public enemy, and he did 
 proceed and was captured, it would be no defense, but he 
 would be liable for the loss.^ It seems, however, in such cases, 
 that it is the duty of the carrier, if he can do so, to notify the 
 shipper of the condition, but this can hardly be said to be an 
 essential to his defense. In the New York court of appeals, 
 in Johnson v. N. Y. Cent. B. Co.^ the action was for ninety-one 
 bales of tow addressed to the consignee in New York and de- 
 livered to the carrier at Little Falls to be delivered at Albanj'^, 
 thence to be forwarded by the People's Line of steamboats to 
 New York. On its arrival at Albany it was offered by the 
 proprietors to the People's Line, who declined to receive it on 
 the ground that they were prohibited by the act of others 
 from transferring freight of that description. The tow was 
 then shipped by the defendant on a freight-barge, which was 
 in good condition, running from Albany to New York. On 
 the passage to New York the tow was lost with the barge. 
 The court say: "There is a class of cases in which an agent is 
 1 Crosby v. Fitch, 13 Conn. 410. ^ Johnson v. Railway Co., 33 N. Y. 610. 
 
§ 500.] CAEEIEES. [PAET V. 
 
 justified by an unexpected emergency in deviating from his 
 instructions where the safety of the property requires it. In 
 this instance no such emergency arose." The court held the 
 defendants liable for the loss of the goods.^ 
 
 § 500. When delay and deviation on account of strikes or 
 riots. — Where the delay in the transportation of the goods was 
 caused by strikers or rioters, or persons not in the control of 
 the carrier, he is not liable. In the case of Geismer v. L. S. & 
 M. S. R. Co} the court say: "A railroad carrier stands upon 
 the same footing as other carriers, and may excuse delay in the 
 delivery of goods by accident or misfortune not inevitable or 
 produced by the act of God. All that can be required of it in 
 any emergency is, that it shall exercise due care and diligence 
 to guard against delay and to forward the goods to their des- 
 tination, and so it has been uniformly decided. In the absence 
 of special contract there is no absolute duty resting upon a 
 railroad carrier to deliver the goods intrusted to it within 
 what, under ordinary circumstances, would be a reasonable 
 time. Not only storms and floods and other natural causes 
 may excuse delaj'', but the conduct of men may also do so. An 
 incendiary may burn a bridge, a mob may tear up the track or 
 interpose irresistible force or overpowering intimidation, and 
 the only duty resting upon the carrier, not otherwise involved, 
 is to use reasonable efforts and due diligence to overcome the 
 obstacles thus interposed and to forward the goods to their 
 destination." And, as touching the rule of law that the car- 
 rier is liable for the acts of his servants, which has been urged 
 in cases of this kind, the court further say : " It is true that these 
 men have been in the employment of the defendant. But they 
 left and abandoned that employment. They ceased to be in 
 its service or in any sense its agents, for whose conduct it was 
 responsible. They not only refused to obey its orders or to 
 render it any service, but they wilfully arrayed themselves in 
 positive hostility against it, and intimidated and defeated the 
 efforts of employees who were willing to serve it. They be- 
 came a mob of vicious lawbreakers to be dealt with by the 
 government, whose duty it was, by the use of adequate force, 
 
 1 Maghee v. Camden & Amboy R. 2 io2 N. Y. 563. 
 Co., 45 N. y. 514; Davis v. Garrett, 6 
 Bing. 716. 
 
 470 
 
OH. VII.] DAMAGE OE IN.roET FEOM DEVIATION OE DELAY. [§ 501. 
 
 to restore order, enforce proper respect for private property 
 and private rights and obedience to law. If they had burned 
 down bridges, torn up tracks, or gone into passenger cars and 
 assaulted passengers, upon what principle could it be held that 
 as to such acts they were the employees of the defendant for 
 whom it was responsible ? If they had sued the defendant for 
 wages for the eleven days when they were thus engaged in block- 
 ing its business, no one will claim that they could have recov- 
 ered. It matters not, if it be true, that the strike was conceived 
 and organized while the strikers were in the employment of the 
 defendant. In doing that they were not in its service or seek- 
 ing to promote its interests or to discharge any duty they owed 
 it; but they were engaged in a matter entirely outside of their 
 employment and seeking their own ends and not the interests 
 of the defendant. The mischief did not come from the strike — 
 from the refusal of the employees to work, but from their vio- 
 lent and unlawful conduct after they had abandoned the serv- 
 ice of the defendant." * 
 
 § 501. May discriminate as to shipping perishable goods. 
 It is a rule of the common law, as well as statutory, in most of 
 the states, that the common carrier must not discriminate in 
 favor of any particular shipper; this we have discussed in an- 
 other chapter. But these rules have yielded to certain excep- 
 tions founded upon the sound judgment of men and a sense of 
 humanity. For example, where perishable goods are received 
 for shipment while there are others awaiting shipment which 
 are not perishable, the carrier not having sufficient facilities 
 for sending all forward may discriminate in favor of perishable 
 goods, as there could be no damage of any consequence by 
 reason of delaying goods that are not perishable, while to 
 delay the perishable freight might result in its entire loss. 
 And where goods are delivered to the carrier for the relief 
 of the sufferers by some great disaster — as, for example, the 
 Chicago fire, the Johnstown flood, and the Texas storm suffer- 
 ers, — in such case it is the duty of the carrier to forward such 
 • goods to the exclusion of goods waiting for shipment in their 
 warehouses if he has not the facilities for both, and he will be 
 
 'Pac. & C. R Co. V. Hazen, 84 III E. Co., 6 Am. & Eng. R. Cases, 39; 
 36; Pac. C. W. L. R. Co. v. Hallowell, Railway Co. v. Juntzer, 10 Bradw. 
 65 Ind. 188; Bennett v. L. S. & M. S. (111.) 205, 
 
 471 
 
§ 502.] 
 
 OAEEIEES, 
 
 [PAET V. 
 
 excused for the delay of the goods discriminated against. 
 This, of course, is founded upon public policy; it is the savino- 
 of the lives of men, and a sense of humanity dictates that in 
 such case relief freight should be forwarded at once.' 
 
 §502. Duty of carrier as to goods after disaster.— From 
 preceding discussions and from what has been said in this 
 chapter upon the subject, the duty of the carrier as to goods 
 that have been injured or delayed during transportation is un- 
 derstood. He must be diligent and careful in looking after 
 them and do all that he can reasonably do to save them for the 
 owner. Even if the injury resulted without fault on his part, 
 as from the act of God, or a cause that would excuse the car- 
 
 1 Mich. Cent. R. Co. v. Burrows, 33 
 Mich. 6. "Giving preference to re- 
 lief goods sent to the sufferers of the 
 great Chicago fire was not such a 
 discrimination against shippers of 
 other freight as to make carriers lia- 
 ble as for negligence for not forward- 
 ing freight in the order in wliich it 
 was received. All general rules must 
 yield to a great public necessity.'' 
 The court say at page 11: "It was 
 urged, however, that it was the duty 
 of the company to send forward 
 freight in the same order in which it 
 was received; that there should 
 have been no discrimination made, 
 no preference given between the 
 classes of freight received by the 
 company for transportation. After 
 the fire large quantities of goods 
 were being sent forward by relief 
 societies from all parts of the country 
 for the purpose of both preventing 
 and relieving the great suffering and 
 distress which did exist and other- 
 wise would have existed among the 
 people, who had by a great public 
 calamity suddenly been left without 
 proper clothing or houses to shield 
 and protect them from the inclem- 
 encies of the season, or sufficient 
 provisions to prevent many of them 
 from imminent danger of starvation. 
 So urgent was the demand for supplies 
 that relief societies sprung up all over 
 
 the country. The people promptly 
 responded to their calls, and the 
 necessary supplies of all kinds were 
 sent forward in such abundance that 
 railroad companies, crippi ed as they 
 were by the fire, found it diificult to 
 promptly carry and dispose of tbeir 
 freights. Relief goods, therefore, 
 were given the preference, and the 
 companies would have been justly 
 chargeable with public condemna- 
 tion had they refused to give a pref- 
 erence to and carry all such goods 
 offered for transportation under the 
 circumstances. Although the com- 
 pany had suffered %-ery great injury 
 by the fire, yet it was doing all in 
 its power to repair the damage as 
 promptly as it could, and at the 
 same time making every effort to 
 carry forward all goods received, 
 making, however, a just, proper and 
 highly commendable discrimination 
 in favor of that class of goods which 
 would alleviate the suffering and 
 distressed." Tierney v. N. Y. Cent. 
 R. Co., 76 N. Y. 305-315. " It seems 
 where two kinds of property, one 
 perishable and the other not, are de- 
 livered to a carrier at the same time 
 by different owners for transporta- 
 tion, and he is unable to carry all, lie 
 may, and it is his duty to give pref- 
 erence to that which is perishable.'' 
 
 472 
 
OH. VII.] DAMAGE OE INJDET FEOM DEVIATION OE DELAY. [§ 502. 
 
 der, he is not excused from further duty in respect to the goods. 
 He must use reasonable diligence in saving all that can be 
 saved, and if he does less he will be held liable for the result 
 of that failure. Some discussion has been had as to what that 
 ordinary diligence requires upon the part of the carrier. If, for 
 example, grain that is being shipped by a steamboat or barge 
 carrying other freight should, during transit, by reason of a 
 severe storm, and without the fault of the carrier, become dam- 
 aged by water, is it the duty of the carrier to lay up in port, 
 unload and dry the wheat? It has been held that ordinary dili- 
 gence does not go to that extent, especially when the carrier is 
 loaded with other freight.^ A different duty would be laid 
 upon him, however, in the exercise of ordinary diligence if he 
 were in port and to stay for some time, for in such case there 
 would be no unnecessary detention of other freight and his 
 duty would be clear. "Where a consignment of furs became 
 wet during transit, it was held that it was the duty of the car- 
 rier to unpack and dry them,^ and it may be said generally that 
 whatever ought to be done must be done. 
 
 1 Steamboat Lynx v. King, 12 Mo. ^ Chouteaux v. Leech Co., 18 Pa. 
 272. St. 224 
 
 473 
 
CHAPTER yill. 
 
 CONTRACTS REGULATING THE TRANSPORTATION OF GOODS. 
 
 § 503. 
 
 The object of the chapter. 
 
 § 514. 
 
 504. 
 
 Contracts imposing obligar 
 tions upon the carrier. 
 
 
 505. 
 
 If the contract Is to carry by 
 a certain route or in a cer- 
 
 515. 
 
 
 tain manner. 
 
 516. 
 
 506. 
 
 By a certain time. 
 
 517. 
 
 507. 
 
 If the contract is to 
 
 transport by water, it cannot 
 
 
 
 be fulfilled by carrying by 
 
 518. 
 
 
 rail 
 
 
 508. 
 
 When the change, deviation 
 or delay from the stipula- 
 
 519. 
 
 
 tions in the contract is the 
 
 520. 
 
 
 fault of the shipper. 
 
 
 509. 
 
 Contracts limiting the liabil- 
 
 521. 
 
 
 ity of the carrier. 
 
 522. 
 
 510. 
 
 Cannot limit liability when 
 the loss is the result of the 
 
 
 
 negligence of the carrier or 
 
 523. 
 
 
 his servants. 
 
 
 611. 
 
 Rule in different states as to 
 limitation for negligence. 
 
 534 
 
 512. 
 
 Limiting liability as to 
 
 
 
 amount. 
 
 525. 
 
 513. 
 
 The considerationof contracts 
 
 
 
 limiting liability. 
 
 526. 
 
 Option to the shipper to 
 
 accept contract limiting lia- 
 bility. 
 
 Contract must be reasonable, 
 fair and without fraud. 
 
 The contract, how mada 
 
 Contract limiting the time in 
 which to present claim or 
 commence suit. 
 
 Contract limiting liability 
 need not be in writing. 
 
 Construction of the contract 
 limiting liability. 
 
 Contracts implied from 
 
 notice. 
 
 Further consideration. 
 
 General notice written 
 
 or printed upon the receipt 
 or bill of lading. 
 
 Representations of theshipper, 
 fraudulent or otherwisa 
 
 When the contract limiting 
 liability inures to the benefit 
 of the connecting carrier. 
 
 Limiting liability in England, 
 especially by notice. 
 
 The result of this act. 
 
 § 503. The object of the chapter.— Thus far, in discussing^ 
 the liability of the carrier, we have confined ourselves almost 
 entirely to the implied obligations of the parties. It is the 
 object of this chapter to present the liability as created by 
 express or special contract, or by contracts that have the 
 same effect as to rights and liabilities. There are two classes 
 of these contracts that are important: (1) Contracts imposing 
 obligations upon the carrier not required by implication under 
 the ordinary shipment or bill of lading; and (2) contracts which 
 limit the liability of the carrier. 
 
 474 
 
OH. Till.] CONTRACTS TEANSPOETATION OF GOODS. [§§504,505. 
 
 § 504. (1) Contracts imposing obligations upon the carrier. 
 
 There can be no question but that the cai'rier can, by contract, 
 increase his liability, and whether increased or not, when the 
 contract is written, the stipulations must be carried out by the 
 carrier, and for failure on his part to transport and deliver 
 the goods as stipulated in the contract, which results in dam- 
 age to the owner, the carrier will be liable. And so, if by 
 contract he has agreed to carry the goods to their destination 
 by a particular time, or by a certain route, nothing but a strict 
 compliance with the terms of the contract will shield him from 
 liability if injury or loss occurs. And where the owner of a 
 vessel was under contract to deliver coal received on board at 
 Baltimore to the defendants in New Haven, but on account of 
 the ice the carrier could not get to the dock but arrived in the 
 port of destination, it was held in an action for demurrage for 
 the time the vessel laid in port after her arrival, that the duty 
 of the carrier was, under his contract, to land the cargo upon . 
 the dock, and that he would not be excused from this liability 
 because of the ice that prevented him from landing.^ And it 
 may be said that though prevented from fulfilling the contract 
 by the act of God, or other of the causes that will excuse the 
 carrier in cases where there is no special contract, still he will 
 not be excused; the contract must be fulfilled. In such cases 
 he becomes, indeed, an insurer of the property.^ And even 
 where the carrier is prevented on account of war, it has been 
 held that this would not dispense with the performance of his 
 contract; he must fulfill the stipulations in the contract as he 
 made them.' 
 
 § 505. If tlie contract is to carry by a certain route or in 
 a certain manner. — So, if the contract is to carry the goods 
 by land or water, or by some certain route, they must be so 
 carried, and if the course is changed, no matter for what rea- 
 son, and there is any damage from delay, or injury to the 
 property, or any loss of property, even if it be by the direct 
 result of an act of God, the carrier is liable. His deviation 
 from the stipulations in the contract renders him an insurer, 
 even against loss that may occur by act of God or the public 
 
 ' Hodgden v. New York & N. H. 2 Wilson v. Missouri Pac. R Co., 74 
 R. Co., 46 Conn. 377. Mo. 364, 41 Am. Rep. 318. 
 
 3 The Harriman, 9 Wall. 161. 
 475 
 
§ 505.] CAEEIEES. [PAET V. 
 
 enemy. And where by contract the carrier agreed to forward 
 certain boxes of goods for plaintiffs from New York to K"ew 
 Orleans by a certain steamer, the Ocean Bird, and after receiv- 
 ing the goods and making the agreement it was found the 
 steamer was not running, and the goods for that reason could 
 not be shipped by it, and on learning this defendant forwarded 
 the goods by another steamer, which was lost with the goods, 
 it was held that the carrier was liable for the value of the 
 goods; that the fact that the specified vessel was withdrawn 
 from the route so that the goods could not be shipped by her 
 would not authorize them to forward " by any other special, 
 customary and proper mode of conveyance." It was their 
 duty to notify the owners of the goods and receive instruc- 
 tions; forwarding by another vessel, being unauthorized, ren- 
 dered them responsible for the consequences.^ The court say: 
 ''Assuming, then, that the receipt was properly given, it was 
 obligatory on the defendants to forward the goods to New 
 Orleans by the steamer designated therein. They were re- 
 ceived for that and for no other purpose, and the defendants 
 had no right, on the failure of the Ocean Bird to make the 
 contemplated voyage, to send them ' by any other usual, cus- 
 
 1 Goodrich v. Thompson, 44 N. Y. show that the owner had concealed 
 324, 333. In Maghee v. Camden & the nature and value of the pack- 
 A. R. Co., 4.") N. Y. 522, the court say: age, and it was claimed that the 
 '■When a carrier accepts goods to be concealment was a fraud upon the 
 carried with a direction on the part carrier, and avoided his contract. 
 of the owner to carry them in a par- But the court held the carrier lia- 
 ticular way, or by a specified route, ble, and Bailey, J., said: If this de- 
 he is bound to obey such direction; fendant had sent the parcel by mail, 
 and if he attempts to perform his in pursuance of his contract, I 
 contract in a manner different from should have been of opinion that, 
 his undertaking, he becomes an in- under the circumstances of the case, 
 surer, and cannot avail himself of he would not have been liable for 
 any exceptions in the contract. In the loss, but having sent it by a dif- 
 Steel V. Flagg, 5 Barn. & Aid. 342, a ferent mode of conveyance, I am of 
 parcel of cashier's notes were de- opinion that he is liable." Story on 
 livered to a carrier, to be carried by Bailments, sec. 509, states the rule, 
 a mail coach, and were sent by a "if the carrier deviates from the 
 different coach and were lost; no- voyage, he is responsible for all 
 tice had been given to the carrier, losses, even from inevitable casualty; 
 of which the owner was cognizant, for, under such circumstances, the 
 that he would not be answerable for loss is traced back through all the 
 the value of any article to an amount intermediate causes to the first de- 
 exceeding five pounds, unless it was parture from dutv." 
 insured, and the evidence tended to 
 
 476 
 
OH. YIII.] OONTEAOTS — TKAN8P0ETATI0N OF GOODS. [§ 506, 
 
 tomary and proper mode of conveyance,' as claimed in the 
 second ground of the motion for the dismissal of the complaint. 
 That would justify a control over property which was never 
 authorized. A specific agreement to do an act in a certain 
 manner is not satisfied by an attempt to do it in another, and 
 a failure to accomplish the object. There was no unexpected 
 emergency rendering it necessary to send the goods by the 
 Crescent City. When it was ascertained that the Ocean Bird 
 would not sail for New Orleans, and that therefore the boxes 
 could not be sent by her, it was the duty of the defendants to 
 notify the plaintiffs of that fact and await their instructions. 
 The forwarding of the goods by another steamer than that 
 agreed upon without the assent of the plaintiffs, or any notice 
 to them of their intention so to forward them, was clearly not 
 an execution of the agreement the defendants entered into, 
 and they were chargeable with the consequences of the unau- 
 thorized act." 
 
 § 506, By a certain time. — In a case where the con- 
 tract was to deliver the goods to a certain place by a stated 
 time, which gave the usual time for the trip, the carrier will 
 be held by the terms of the contract, and such obligation will 
 not be modified by a bill of lading subsequently handed to the 
 shipper's clerk. And when by reason of the failure of the car- 
 rier to so deliver the goods the shipper lost a profitable market, 
 the market falling between the time the goods were to be de- 
 livered and the time they were actually delivered, the carrier 
 will be held for the damage thus suffered.' 
 
 ' Rudel] et aL v. Ogdensburg country is mostly done by corpora- 
 Transit Co., 117 Mich. 568, 76 N. W. tions which act through agents, who, 
 381. In this case the court say: " De- as in this case, frequently solicit 
 lays sometimes occur both on land 'business; and, when the contract is 
 and water. Many cases like the pres- a reasonable one, it must be upheld, 
 ent and that of the theatrical troupe in the absence of notice of lack of 
 are constantly arising, where deliv- authority. It is urged that the cus- 
 ery at a certain time is essential, tomary way of carrying on the busi- 
 When the shipper and the carrier ness of a common carrier is by issu- 
 agree, through its agent, upon a date ing bills of lading, which constitute 
 of delivery at destination which the contract between the parties, 
 gives the usual time to make the This custom is not conclusive of the 
 trip, such contract cannot be held authority of the agent, or of the rea- 
 unusual or extraordinary, and is sonableness of the contracts he as- 
 within the general authority of the sumes to make. Plaintiffs testiSed 
 agent. The carrying business of the that they knew nothing of a bill of 
 
 477 
 
§ 507.] OAEEIEES. [PAET 
 
 T. 
 
 § 507. If the contract is to transport by water, it can- 
 not be fulfilled by carrying by rail. — When by the agree- 
 ment of the parties the goods were to be forwarded from A"ew 
 York to Detroit by sail on the lakes, in which the shipper 
 agreed to risk the dangers of the sea,' the court say: " The con- 
 tract in terms is equally restrictive as to the mode of transpor- 
 tation on the lake as it is in the price per hundred. Trans- 
 portation by sail is one mode and transportation by steam is 
 another mode of transporting goods and property. Both are 
 common modes on our lakes, and are as clearly distinct and as 
 definitely understood, when applied to the commercial business 
 prosecuted on our inland seas, as upon the ocean; and with this 
 clear and well known distinction before us, which has been 
 recognized for many years throughout the world, it will not do 
 to say that an unconditional agreement to transport goods 'by 
 sail on the lake ' is not restrictive as to the mode of carrying. 
 . . . When the carrier in error sent forward, from Oswego, 
 the goods by steam, they violated their own express stipulation 
 to transport them from that point by sail, and in doing so they 
 became insurers to the defendants in error for the safe delivery 
 in Detroit of every article of the property This is a well es- 
 tablished legal principle, founded in justice and equity, and 
 numerous authorities might be referred to in support of it; but 
 such reference is deemed entirely unnecessary, as the principle 
 must be well understood, it being an elementary principle of 
 law, that when a carrier undertakes to carry goods in a par- 
 ticular manner, or by a particular route, and without the con- 
 sent of the owner transports them in a different manner, or by 
 a different route, he becomes the insurer for the actual delivery 
 of the goods at the place of destination. The plaintiffs below, 
 by the terms of the contract, took upon themselves the dangers 
 of the sea, upon the condition that they were transported ' by 
 sail on the lake,' and upon no other condition did they assume 
 that risk. And if they, after the execution and delivery of the 
 
 lading in this case, and had never tract was made before, and defend- 
 
 seen any before the trial. Defend- ant could not change it by handing 
 
 ant introduced a bill of lading, which a receipt or bill of lading to a clerk." 
 it claims was given to plaintiflE's i Merrick v. Webster, 3 Mich. 268, 
 
 clerk at the time of or soon after the 275. 
 delivery of the goods to it. The con- 
 
 478 
 
<!H.YIII.] C0NTBACT8 TEANSPOETATION OF GOODS. [§§508,509. 
 
 contract, obtain (as asserted on the argument) an insurance 
 upon their goods to be transported ' by sail on the lake,' they 
 could not have recovered upon it. The goods having been lost 
 on the lake without any negligence or fault of the master or 
 hands of the propeller, could have made no difference ; they 
 were forwarded by a different mode from that represented by 
 the owners to their insurers. Nor can that make the least dif- 
 ference in the liability of the plaintiffs in error under the con- 
 tract for the transportation. The rule of law is well settled, 
 that when parties have deliberately put their engagements 
 into writing, without any uncertainty as to the object or ex- 
 teat of the engagement, it is a legal presumption, which has al- 
 ways been held conclusive, that the whole agreement, as well as 
 the extent and manner of its performance, were embodied in 
 the instrument, and by it the parties are bound. All testi- 
 mony of previous conversations, or declarations at the time or 
 after the execution of the agreement, are rejected upon the 
 ground that such evidence would tend to substitute a new and 
 different contract between the parties, to the injury of one or 
 the other of them. This law is based upon sound reason and 
 cannot be departed from." 
 
 § 508. When the change, deviation or delay from the 
 stipulations in the contract is the fault of the shipper. — 
 The shipper as well as the carrier will be held to any stipula- 
 tions or conditions he is to fulfill or keep in the agreement. 
 Often the shipment depends upon some duty to be performed 
 by him; as, for example, upon the goods being delivered in 
 time for loading, or upon their being properly packed, or in 
 safe condition for shipment, the condition not being apparent. 
 Whenever the shipper's dereliction or misconduct is the direct 
 cause of the failure on the part of the carrier to keep and per- 
 form the stipulations he has entered into, then, even though 
 the contract be special or express, the carrier will be excused, 
 for in such case the failure of performance of the contract is 
 not his fault, but the fault of the shipper.^ 
 
 § 509. (2) Contracts limiting the liability of the carrier. 
 The discussion of this question seems to have resolved itself 
 into two subdivisions: (1) special or express contracts, and 
 (2) contracts implied from notice. 
 
 ' Hutch, on Car., sec. 319a; Fowler v. Liverpool, etc. Steam Co., 87 N. Y. 190. 
 
 479 
 
§ 509.J OAEEIEES. . [PAET V. 
 
 (1) As to the first subdivision there is not much diificulty, 
 the courts holding with great unanimity that the carrier may 
 by express contract limit his extraordinary liability; and this 
 with the exception of a few of the states that have by statute 
 or constitutional provisions prohibited such limitation, seems 
 to be the general holding in the states and in England. The 
 question was before the supreme court of the United States in 
 New Jersey Steam Transportation Co. v. Merchants^ Bank} 
 where it was fully discussed by Mr. Justice jSTelson, who deliv- 
 ered the opinion of the court. The court say: "The general 
 liability of the carrier, independently of any special agree- 
 ment, is familiar. He is chargeable as an insurer of the goods 
 and accountable for any damage or loss that may happen to 
 them in the course of the conveyance, unless arising from in- 
 evitable accident; in other words, the act of God or the public 
 enemy. The liability of the respondents, therefore, would be 
 undoubted were it not for the special agreement under which 
 the goods were shipped. The question is: To what extent has 
 this agreement qualified the common-law liability ? ... As 
 the extraordinary duties annexed to his employment concern 
 only, in the particular instance, the parties to the transaction, 
 involving simply rights of property, the safe custody and de- 
 livery of the goods, we are unable to perceive any well-founded 
 objection to the restriction, or any stronger reasons forbidding 
 it than exist in the case of any other insurer of goods, to which 
 his obligation is analogous, and which depends altogether upon 
 the contract between the parties. The owner, by entering into 
 the conti'act, virtually agrees that, in respect to the particular 
 transaction, the carrier is not to be regarded as in the exercise 
 of his public employment, but as a private person who incurs 
 no responsibility beyond that of an ordinary bailee for hire, 
 and answerable only for misconduct or negligence. The right 
 thus to restrict the obligation is admitted in a large class of 
 cases founded on bills of lading and charter parties, where the 
 exception to the common-law liability (other than that of in- 
 evitable accident) has been, from time to time, enlarged and 
 the risk diminished by the express stipulation of the parties. 
 The right of the carrier thus to limit his liability in the ship- 
 ment of goods has, we think, never been doubted. But admit- 
 
 1 6 How. (U. S.) 344 
 480 
 
OH. VIII.] CONTEACTS TEANSPOETATION OF GOODS. [§509. 
 
 ting the right thus to restrict his obligation, it by no means 
 follows that he can do so by any act of his own. He is in the 
 exercise of a sort of public office and has public duties to per- 
 form, from which he should not be permitted to exonerate 
 himself without the assent of the parties concerned. And this 
 is not to be implied or inferred from a general notice to the 
 public, limiting his obligation, which may or may not be as- 
 sented to. He is bound to receive and carry all the goods of- 
 fered for transportation, subject to all the responsibilities in- 
 cident to his employment, and is liable to an action in case of 
 refusal. And we agree with the court in the case of RoUister 
 V. JVowlen, that, if any implication is to be indulged from the 
 delivery of the goods under the general notice, it is as strong 
 that the owner intended to insist upon his rights, and the duties 
 of the carrier, as it is that he assented to their qualification." 
 Alater and a leading case from the supreme court of the United 
 States is Railroad Co. v. Lockwood^ where the question was 
 discussed by Mr. Justice Bradley, who, rendering the opinion 
 of the court, said: "As the duties and responsibilities of public 
 carriers were prescribed by public policy, it has been seriously 
 doubted whether the courts did wisely in allowing that policy 
 to be departed from without legislative interference, by which 
 needed modifications could have been introduced into the law. 
 But the great hardship on the carrier in certain special cases, 
 where goods of great value or subject to extra risk were de- 
 livered to him without notice of their character, and where 
 losses happened by sheer accident without any possibility of 
 fraud or collusion on his part, such as by collisions at sea, ac- 
 cidental fire, etc., led to a relaxation of the rule to the extent 
 of authorizing certain exemptions frorn liability in such cases 
 to be provided for, either by public notice brought home to the 
 owners of the goods, or by inserting exemptions from liability 
 in the bill of lading, or other contract of carriage. A modifi- 
 cation of the strict rule of responsibility, exempting the car- 
 rier from liability for accidental losses, where it can be safely 
 done, enables the carrying interest to reduce its rates of com- 
 pensation; thus proportionally relieving the transportation of 
 produce and merchandise from some of the burden with which 
 it is loaded." The courts of ISTew York for a long time were 
 
 » 17 Wall. 357. 
 31 481 
 
[§ 510. OAEEIERS. [PAET V. 
 
 not in harmony with this rule as laid down by the supreme court 
 of the United States and the supreme courts of the different 
 states. The ]S^ew York courts contended that the common-law 
 liability had its origin in public policy, and a limitation of lia- 
 bility therefore affected the public and not alone the parties, and 
 for this reason could not be altered or set aside by an agree- 
 ment of the parties. But that state soon fell in line with the 
 other states and the United States court, holding to the gen- 
 eral doctrine in this country, adopted by nearly all of the courts 
 of the Union where not prohibited by statute or constitution, 
 namely, that the carrier may by special contract limit his lia- 
 bility for any losses; and seems to hare gone further and held 
 that the contract may excuse negligence.^ 
 
 § 510. Cannot limit liability when the loss is the result 
 of the negligence of the carrier or his servants. — While the 
 carrier may relieve himself of the rigor of the common-law 
 liability holding him as an insurer except in cases where the 
 loss or injury is the direct result of the act of God or the pub- 
 lic enemy, he will not be permitted to so limit his common- 
 law liability when the loss or injury was the result of his own 
 negligence or that of his servants. To allow such a limitation 
 would be contrary to public policy, and would permit the car- 
 rier to stipulate for exemptions from the effects of the negli- 
 gence of himself or his servants.^ And where there was a 
 
 1 American Trans. Co. v. Moore, 5 Co. v. Pej'ton, 106 111. 537; McCoy v. 
 Mich. 368; McMillan v. Michigan S. Keokuk R. Co., 44 Iowa, 424; Willis 
 & N. I. E. Co., 16 Mich. 79: Kimbal v. v. Grand Trunk R. Co., 62 Me. 488; 
 Railroad Co., 36 Vt. 347; Boorman v. Jacobus v. St. Paul R. Co., 20 Minu. 
 Express Co., 31 Wis. 154; Hoadly v. 125; Hall v. Cheney, 36 N. H. 26; 
 Northern Trans. Co., 115 Mass. ;804. Ashmore v. Pennsylvania Steam 
 It was assumed by both parties as Towing Co., 38 N. J. L. 180; Brown t. 
 now settled that a common carrier Adams Exp. Co., 15 W. Va. 813; Kim- 
 may, by special contract, avoid or ball v. Rutland, etc. R. Co., 26 Vt. 247; 
 limit his liability at common law as Wescott v. Fargo, 63 Barb. 343; 61 
 an insurer of property intrusted to N. Y. .542; Evans ville R. Co. v. Young, 
 him against loss or damage by fire 28 Ind. 516; Bartlett v. Pacific, etc 
 occurring without his fault. Grace Co., 94 Ind. 381; Camp v. Steamboat 
 V. Adams, 100 Mas.s. 505; Illinois Co., 43 Conn. 833; Rice v. Railroad 
 Cent. R. Co. v. Morrison, 19 111. 136; Co., 63 Mo. 314; Gaines v. Union 
 American Exp. Co. v. Schier, 55 111. Trans. Co., 28 Ohio St. 418. 
 140; Perry V.Thompson, 98 Mass. 249; 2 Hutch, on Car., sec. 260; Liver- 
 Welch V. Boston R. Co., 41 Conn. 333; pool, etc. Co. v. Phoenix Ins. Co., 139 
 Black V. Wabash, etc. R. Co., Ill 111. U. S. 397. 
 351, 53 Am. Rep. 628; Wabash, etc. 
 
 483 
 
CH. VIII.J OONTEAOTS TEANSPOBTATION OF GOODS. [§ 510. 
 
 stipulation in a bill of lading that the carrier should not be lia- 
 ble for loss or damage to the goods by fire, it was held that 
 this would not exempt the carrier from liability where the 
 goods were destroyed by fire through its negligence or the neg- 
 ligence of its employees.' And in Chicago dc N. W. R. Co. v. 
 C%<zpTOaraHhe court say: "The carrier may limit its liability 
 against loss by fire without his fault, and the liability may thus 
 be limited as an insurer and against other losses not attribu- 
 table to its negligence or that of its servants, and may require 
 the value of goods offered for transportation to be fixed by the 
 shipper to protect itself against fraud in case of loss." The 
 courts of this state have never held that the carrier may limit or 
 restrict its liability for loss or damage resulting from its own 
 gross negligence, or the gross negligence of its servants. On 
 the contrary, it has been repeatedly and uniformly held that 
 it cannot do so, even by express contract with the shipper. 
 The question first arose in 111. Cent. R. Co. v. Morrison^ and 
 it was there said : ' We think the rule a good one as established 
 in England and in this country, that railroad companies have a 
 right to restrict their liabilities as common carriers by such 
 contracts as may be agreed upon specially, they still remaining 
 liable for gross negligence or wilful misfeasance, against which 
 good morals and public policy forbid that they should be per- 
 mitted to stipulate.' " And so it would seem to be settled by 
 the great weight of authority that a carrier cannot stipulate 
 for exemption from liabilities which arise from the negligence 
 of himself or his servants, because such a stipulation is for- 
 bidden by public policy, and that this is the rule even in case 
 of express contract.* 
 Some of the courts, however, have gone so far as to hold 
 
 •Liverpool & L. & G. Ins. Co. v. 363; Terre Haute & L R. Co. t. Sher- 
 
 MoNeil, 89 Fed. 131, 33 C. C. A. 173 
 €ox T. Railroad Co., 170 Mass. 139 
 Sohaller v. Railway Co., 97 Wis. 31 
 
 wood, 133 Ind. 139, 17 L. R. A. 339. 
 2133 111. 96, 8L. R. A. 508. 
 319 111. 136; Oppenheimer v. U. S. 
 
 Pierce v. S. Pac. R. Co., 120 Cal. 156, Exp. Co., 69 III 62; Western, etc. R. 
 
 40 L, R. A. 350, 354 " A carrier is not Co. v. Exposition Cotton Mills, 81 Ga. 
 
 relieved from responsibility if he has 533, 3 L. R. A. 287; U. S. Exp. Co. v. 
 
 been guilty of negligence." Railway . Council, 84 111. App. 491. 
 
 Co. V. Pratt. 23 Wall. 123; Hutch, on * Kansas, etc. Ry. Co. v. Simpson, 
 
 ■Car., sec. 360; Atchison, T. & S. F. R. 30 Kan. 645. 
 
 Co. V. Temple, 47 Kan. 74, 13 L. R. A. 
 
 483 
 
§ 511. J CAEEIEES. [part T. 
 
 that the common-law liability of a common carrier may be 
 limited even to the extent of excusing the carrier for neo'li- 
 gence by express contract. 
 
 The supreme court, in Hart v. Pa. R. Co.^ say: "The lim- 
 itation as to value has no tendency to exempt from liabihty 
 for negligence. It does not induce want of care. It exacts 
 from the carrier the measure of care due to the value agreed 
 on. The carrier is bound to respond in that value for negli 
 gence. The compensation for carriage is based on that value. 
 The shipper is estopped from saying that the value is greater. 
 The articles have no greater value, for the purposes of the con- 
 tract for transportation, between the parties to that contract. 
 The carrier must respond for negligence up to that value. It 
 is just and reasonable that such a contract, fairly entered into, 
 and where there is no deceit practiced on the shipper, should 
 be upheld. There is no violation of public policy." 
 
 From this it would seem that the court in this case, in lim- 
 iting the recover}' to the amount of the stipulated value, which 
 was less than the real value of the property, and the loss of 
 the property really occurring from the negligence of the de- 
 fendants, in a measure upheld the doctrine that the carrier 
 might limit liability as to negligence. 
 
 § 511. Rule in different states as to limitation for negli- 
 gence.^ It would appear, however, from an examination of 
 the cases in different states, that there is some conflict in the 
 holdings of the courts upon the subject of contracts limiting 
 the liability of the carrier for negligence of himself or servants. 
 We shall not attempt to give the different rules that have 
 been adopted by the several states of the Union; we can only 
 mention some of the more prominent cases. 
 
 In Illinois the rule seems to be that the carrier may contract 
 for exemptions from liability when the loss or injury results 
 from the negligence of the carrier or his servants, but not 
 when the negligence is gross ;^ while in New York the courts 
 have gone so far as to hold that so far as making a contract for 
 limiting liability, it is simply the business of the carrier and the 
 shipper, in which the public have no particular concern, and 
 if the carrier freely and voluntarily makes a contract ex- 
 empting the carrier from all liability for a valuable considera- 
 
 1 112 U. S. 340. 2 Wabash, etc. E. Co. v. Brown, 152 111. 484. 
 
 48,4 
 
CH. Till.] CONTKACTS TEANSPOKTATION OF GOODS. [§512. 
 
 tion, and without fault or deception, the contract being fully- 
 understood by the parties, such a contract will be sustained. 
 Wells, J., in discussing this question in Parsons v. Monteith,^ 
 said : " If 1 have goods to transport and the common carrier 
 tells me he will carry them for a particular price, without in- 
 curring the risk of loss or damage by inevitable accident, but 
 that if he takes such risk he must add a percentage to the price 
 of transportation, I really cannot see what the public have to 
 do with our negotiations, nor why we should not be permitted 
 to make a valid contract with such conditions and stipulations 
 as we choose." 
 
 There is also conflict of opinion as to limiting liability to the 
 payment of a less amount than the valuation of the property 
 in case of loss, some of the courts holding that the carrier may 
 limit his liability to a less amount provided the shipper as- 
 sents to the limitation, and that that assent is presumed on ac- 
 cepting the bill of lading, or receipt which contains the limita- 
 tion, while other courts have held that, where the loss is from 
 the negligence of the carrier, the shipper may recover the full 
 value of the property destroyed. 
 
 § 512. Limiting liability as to amount. — The liability 
 
 of the common carrier at the common law as an insurer of the 
 goods of the shipper creates a privilege in the shipper amount- 
 ing to an interest which, for a consideration, he can no doubt 
 waive, and the law permitting limitation of liability has its 
 foundation rather in the idea of waiver of privilege than in the 
 theory of special contract between the parties. Upon the 
 theory that the limitation is a waiver of a legal right, it would 
 seem to follow that for a valuable consideration the shipper 
 could limit the amount to be recovered for the property in 
 case of loss. We are aware that there are writers who have 
 laid down the doctrine that these contracts of limitation ought 
 not to be sanctioned, for the reason that if the carrier has the 
 privilege to limit the value to be recovered, in case of loss, to 
 a less amount than the property is worth, upon the same course 
 of reasoning the entire liability might be waived ; that is to 
 
 ' 13 Barb. (N.Y.) 353. See also com- Eng. Ency. of Law (2d ed.), 313; also 
 ments of Allan, J., in Smith v. New Ballou v. Earle, 17 R. I. 441, 14 L. 
 York Cent. R. Co., 24 N. Y. 223. No- R. A. 433, and notes for discussion in 
 tioe compilation of cases in 5 Am. & holdings for different states. 
 
 485 
 
§ 513.] OAEEIEES. [PAET V. 
 
 say, if it could be limited to a recovery of four-fifths of its 
 value it might be limited to a recovery of one-half; and if to 
 one-half, then to nine-tenths; and if to nine-tenths, to the whole 
 amount of the value of the property. It may be said, however, 
 on the other hand, that the right to recover from the shipper 
 as an insurer of the property, being an interest owned and 
 controlled b}^ the shipper and of value to him, may be disposed 
 of, as any other interest, for a valuable consideration agreed 
 upon between the parties. It is conceded, of course, that for 
 negligence the carrier is liable. That question is involved in 
 the limitation even by express contract. It will also be re- 
 membered that the rules of construction that are adopted gov- 
 erning these contracts are favorable to the shipper. In Judson 
 V. Western li. Co} the court say : " To this extent, the doctrine 
 that a carrier may limit or modify his liability seems to be 
 most just and reasonable. Inasmuch as the rule of law which 
 holds the carrier to the responsibility of an insurer, except in 
 certain special cases, is founded in a policy which is designed 
 solely for the security and benefit of the owner of the goods, 
 there can be no sufficient reason for regarding the rule as ab- 
 solutely inflexible or irrepealable, when the party in whose 
 favor it will operate, directly or by necessary implication, con- 
 sents to waive it, or agrees to an essential modification of his 
 own rights under it."'^ And so it may be said that according 
 to the great weight of modern authority in this country, a 
 valid contract limiting the liability of the carrier to a certain 
 agreed amount or valuation of the property carried may be 
 made where it is just and reasonable in its terms, and where 
 the consideration is a reduced rate of freight.' 
 
 § 513. The consideration of contracts limiting liability. 
 The consideration supporting the contract limiting the liabil- 
 ity of the common carrier is not at all times clear, and there 
 
 1 6 Allen (Mass.), 486, 490. Tns. Co. v. Erie & W. Trans. Co., 117 
 
 2 Fay V. Steamer New World, 1 Cal. U. S. 314. 
 348; Lawrence v. N. Y. B. & P. Co., 3 Richmond, etc. R. Co. v. Payne, 
 
 36 Conn. 63; Chicago, R. I. & P. R. 86 Va. 481, 6 L. E. A. 849; Railway 
 
 Co. V. Harman, 17 111. App. 640; Bel- Co. v. Manchester Mills, 88 Tenn. 653; 
 
 ger V. Dinsmore, 51 N. Y. 166. And Brown v. Cunard S. S. Co., 147 Mass 
 
 a stipulation that the value of the 58; Squire v. Western Union Tel. 
 
 goods shall be estimated at the place Co., 98 Mass. 337; Steers v. Liverpool, 
 
 of shipment held valid in Phoenix etc. Co., 57 N. Y, 1. 
 
 486 
 
CH. VlII.] OONTEACTS — TKANSPOETATION OF GOODS. [§513. 
 
 has been more or less discussion upon the subject and not 
 the utmost harmony among authors and courts. On the one 
 hand it is contended by some writers, and they are sup- 
 ported by the decisions of some of the courts, that "the parties 
 being left free to make their own contract, and having agreed 
 that in consideration of the payment of a certain price by one, 
 certain services, upon stipulated terms as to responsibility, 
 shall be performed by the other, neither can allege that as to 
 him there was no consideration. Such is the general rule as 
 to contracts, and no reason is seen why it should not apply to 
 those between carriers and their employers, so long as they 
 are permitted to make their own terms." This is the language 
 of Hutchinson on Carriers,' quoting from the opinion of the 
 court in Yoi'h Co. v. Central Railway Co.: ^ " There is no evi- 
 dence that a consideration was not given for the stipulation. 
 The company probably had rates of charges proportioned to 
 the risk they assumed from the nature of the goods carried, 
 and the exception of the losses by fire must necessarily have 
 affected the compensation demanded. Be this as it may, the 
 consideration expressed was sufficient to support the entire 
 contract made." 
 
 On the other hand, there is a line of cases holding that there 
 must be some consideration moving between the parties sup- 
 porting the particular stipulation limiting the liability. We 
 think that the settled rule of law, gleaned from all of the au- 
 thorities, and which the courts in their later decisions seem to 
 bear out, is this : If the contract is not objected to, but accepted 
 by the shipper, the courts wilL presume that there was a valid 
 consideration for the stipulations limiting the liability; but if 
 the shipper refuses to accept the contract for the reason, that 
 there is no consideration, then the consideration is a subject of 
 proof, and this presumption may be overcome the same as 
 every other mere presumption. And if the proof, when the 
 consideration is attaclied, shows that there was no real consid- 
 eration for the stipulations limiting the liability, then in that 
 case the contract in that respect must fail. 
 
 The delivery of freight for carriage and the payment of the 
 rate to the carrier is no doubt sufficient to support the con- 
 tract for carriage, but the contract under discussion is more 
 
 1 Hutchinson on Carriers, seo. 278. * 3 Wall. 107. 
 
 487 
 
§ 513.] 
 
 CAEEIEES. 
 
 [PAET V. 
 
 than that: it is another and distinct undertaking; it is the 
 giving up or the waiver of a right vrhich the shipper undoubt- 
 edly has, namely, that he can insist upon the carrier receiving 
 and transporting his freight over his own line as an insurer 
 without limiting his common-law liability when not regulated 
 by statute. Now, for the waiver of this privilege it would 
 seem there must be a consideration. That consideration may 
 be a reduction of freight rates, or assuming duties of forward- 
 ing the goods beyond the carrier's own line, or the offering of 
 any other benefit which he is not legally bound to bestow. 
 But, in our judgment, there must be some distinct, traceable 
 consideration beyond the mere payment of the usual freight 
 rates charged to all shippers. 
 
 It has also been held " that if the special contract recites 
 that in consideration of reduced rates the shipper consents to 
 a limitation of the carrier's liability, and it is shown that no 
 reduced rates were in fact allowed -the shipper, the limitation 
 is invalid as being without consideration." ^ 
 
 183 Tex. 608; Gulf, etc. R. Co. v. 
 Wright, 1 Tex. Civ. App. 403; San 
 Antonio, etc. R. Co. v. Barnett, 13 
 Tex. Civ. App. 321 ; Duvenicli v. Mo. 
 Pac. R. Co., 57 Mo. App. 5o0: Soutli- 
 ard V. Minneapolis R. Co., 60 Minn. 
 383; Mich. Cent. R. Co. v. Hale, 6 
 Mich. 343.- The supreme court of 
 Arkansas, in the case of Little Rock, 
 etc. Co. V. Cravens, 57 Ark. 113, have 
 discussed this question very thor- 
 oughly. In that case the plaintiff 
 sued to recover the value of cotton 
 that was burned without fault of 
 the defendants while they held it for 
 shipment. " The defense was that 
 the company were exempt from lia- 
 bility by the terms of the bill of 
 lading under which they received 
 the cotton. It was alleged and ad- 
 mitted that the carrier company op- 
 erated a line of road from the point 
 where the cotton was received to 
 the several points of consignment, 
 and that the cotton was received 
 under bills of lading containing pro- 
 visions to the effect that they should 
 
 not be liable except for losses occa- 
 sioned by their negligence. But it 
 was alleged that these provisions 
 were void, for the reason that they 
 were without consideration, unfair, 
 unjust and unreasonable. To main- 
 tain this contention the plaintiff 
 proved that the railroad company 
 fixed and published a uniform rate 
 for carrying cotton between the 
 points in question, and that his ship- 
 ments were made according to this 
 rate: that the can-ier company fur- 
 nished to their agents at the point 
 of shipment printed forms for bills 
 of lading that were uniform in their 
 terms, and contained the provisions 
 relied upon in this case, and that the 
 agent had no authority to receive, 
 and would not have received, the 
 cotton except under said bills. It 
 was shown that the plaintiff knew 
 that the bills contained the provis- 
 ions relied upon, and that he made 
 no objections to the rate fixed, or 
 to the provisions contained in the 
 bills." It was held in this case that 
 
 488 
 
CH. VIII.] CONTEACTS TEANSPOETATION OF GOODS. 
 
 [§ 513. 
 
 In Wehmann v. Minneapolis R. Co} the court say: "Such a 
 clause (a clause stipulating to limit liability) to be of force 
 must stand as a contract between the shipper and the carrier, 
 and as in the case of all contracts there must be a consideration 
 
 the contract relied upon was in- 
 valid. In Demingetal. v. Merchants' 
 Cotton Press, etc. Co., 90 Tenn. 806, 
 . 13 L. R. A. 518, it was held that " car- 
 riers making a through contract for 
 the shipment of merchandise, 
 whether through an initial line 
 agreeing to ship beyond its own 
 road, or through a transportation 
 company having no line of its own, 
 but simply authorized to ship over 
 connecting lines, may insert therein 
 a fire-exeraption clause, although no 
 offer is made to assume the risk for 
 additional compensation, since there 
 is no common-law liability to make 
 thethrough shipment." "Alower rate 
 of freight, or some other equivalent, 
 will be a sufficient consideration for 
 the stipulation." Dillard v. Louis- 
 ville & N. R, Co., 3 Lea, 293; York 
 E. Co. V. 111. Cent. R. Co., 3 Wall. 107. 
 158 Minn. 22, 59 N. W. 546. The 
 court of West Virginia in Berry v. 
 W. Va. E. Co., 44 W. Va. 538, say: 
 "This court has not denied the valid- 
 ity of the contracts of common car- 
 riers limiting their liability, but it 
 has held that they cannot exempt 
 from negligence of the carrier. (Cit- 
 ing cases.) But in these cases it was 
 explicitly stated that there must be a 
 valuable consideration for such spe- 
 cial contract, and such I understand 
 to be the general law." Citing Zouch 
 V. Railroad Co., 36 W. Va. 524; Brown 
 V. Express Co., 15 W. Va. 813; Maslin 
 V. Eailroad Co., 14 W. Va. 180. In 
 Baltimore, etc. Co. v. Crawford, 65 
 111. App. 113, it was held in substance 
 that a provision in a contract of ship- 
 ment exempting the carrier from 
 liability for injury occasioned by fire 
 IS not enforceable unless supported 
 by a reduction of charges, or some 
 
 other consideration; and the fact 
 that free transportation is given a 
 servant of the shipper is not a suffi- 
 cient consideration for such exemp- 
 tion where the contract relieves the 
 carrier of its common-law duty to 
 care for the stock while in transit, 
 and imposes it upon the shipper. In 
 Kellernian v. Kansas, etc. E. Co., 68 
 Mo. App. 255, it was held: "In a 
 shipping contract the consideration 
 clause read: 'In consideration of 
 tariff dollars per oar,' etc. Held, that 
 this meant the tariff arranged by the 
 railroad commission according to the 
 law, and was not a reduced rate such 
 as is necessary to furnish the con- 
 sideration for limiting the carrier's 
 liability." In Stewart v. Cleveland, 
 etc. R. Co., 21 Ind. App. 218, 53 N. E. 
 89, a contract limiting a carrier's 
 liability to plaintiff expressed a con- 
 sideration of a reduced rate. The 
 carrier had but one form of contract, 
 but also had bills of lading. In plaint- 
 iff's prior shipments he had always 
 paid the reduced rate, although he 
 had not always signed such a con- 
 tract. The evidence showed that the 
 carrier did not require all shippers to 
 sign such a contract, but did not 
 show what rates such shippers re- 
 ceived; and it also showed that the 
 regulation requiring a higher rate in 
 the absence of such contract was 
 "not practiced." Held, that the con- 
 tract was for a valid consideration. 
 In Ward v. Missouri Pac. Ry. Co., 158 
 Mo. 226, it was held in substance that 
 a contract of shipment of goods from 
 one state to another stated that the 
 rate charged was special, and given 
 in consideration of a limited valua- 
 tion placed on the goods, for which 
 the carrier should be liable. The evi- 
 
 489 
 
§ 514.J CAEEIEES. [PAET V. 
 
 for it. One exercising the employment of a common carrier 
 of goods is bound to receive and carry such (within the class of 
 goods that he carries) as are tendered to him for the purposes, 
 and, in the absence of special contract, to carry them with the 
 full common-law liability of a common carrier. His receipt of 
 and undertaking to carry them, being a duty imposed on him 
 by law, is not a consideration to support such special contract. 
 There must be some other. That is generally furnished by 
 some concession in rates. And where the agreement is set 
 forth in the contract for carriage, it would probably be pre- 
 sumed that, in a case where parties could make any, there was 
 some such concession as a consideration for relieving the car- 
 rier of part of his common-law liability." 
 
 § 514. Option to the shipper to accept contract lim- 
 
 iting liability. — In the discussion of the questions arising as 
 to the right of the carrier to limit his extraordinary liabihty, 
 we are confronted with the other rule fixing a duty upon the 
 carrier to receive and transport the freight of all who offer it 
 for transportation, if within the line of their carrier business. 
 So, the question arises, supposing the shipper declines to accept 
 
 dence showed that the rate charged do not think that such failure on de- 
 
 for shipment was the regular rate, fendant's part was material to the 
 
 Held, that the contract of shipment disposition of the case, for the reason, 
 
 did not limit the consignee's right to that it is entirely competent for the 
 
 recover the full value of goods lost in parties to enter into a contract; and 
 
 transit, and the fact that the shipper where it appears that, in considera- 
 
 was required to sign a stipulation tion of a stipulated sum. the carrier 
 
 that the carrier's liability should not agrees to perform certain services 
 
 exceed a certain amount, in order to upon condition of certain exemp- 
 
 get the rate charged plaintiff, does tions, sufficient consideration is to be 
 
 not show that the rate charged was found in the carrier's obligation thus 
 
 not the regular rate. But see Rubens assumed to support the exemptions 
 
 V. Ludgate Hill Steam Co., 20 N. Y. S. provided for in the contract. Were 
 
 481, where the court held to a differ- there a statute requiring the carrier 
 
 ent rule, saying, "there still remains to transport goods at certain specified 
 
 a subsidiary question as to the effect rates, another question might be 
 
 of the failure to prove the allegation presented; but, in the absence of any 
 
 of the answer, that the consideration such statute or law binding upon the 
 
 for these exemptions and exceptions carrier to transport at certain fixed 
 
 accorded to the defendant was the rates, we can see no good reason why 
 
 low rate of freight the defendant the shipper and cai'rier may not 
 
 agree to accept as a condition to its enter into a contract upon such terms 
 
 release from any liability for loss re- and conditions as may be agreed 
 
 suiting from causes exempted. We upon between them.'' 
 
 490 
 
OH. VIII.] 0ONTEACT8 — TKANSPOETATION 01' GOODS. [§ 514. 
 
 a contract which embraces a limitation of liability upon the 
 carrier? Supposing he demands that he shall have the benefit 
 of that insurance which the common carrier, under his common- 
 law liability, is held to be obliged to give to the shipper? These 
 questions have been raised and met by the courts, and it has 
 been held that the shipper cannot be deprived of this right to 
 insurance which the common law required of the carrier, but 
 that the carrier must give to the shipper an option that he will 
 carry his freight, with the insurance that the common-law lia- 
 bility gives to the shipper for a certain rate proportionate to 
 the risk that is undertaken by the carrier, or, that he will carry 
 it for a less rate in consideration of a limitation of liability as 
 set forth in the contract. This question was fairly before the 
 court in the case of Little Rock, etc. R. Co. v. Craven} The 
 opinion is very full and the principles clearly stated. The courts 
 holding to this doctrine base their opinion upon the principle 
 of law that contracts obtained from the shipper limiting the 
 liability of the carrier must be fair, reasonable and just, and at 
 the same time recognizing the unequal ground upon which the 
 parties stand; the shipper often being compelled to accept such 
 stipulations in the bill of lading as the carrier sees fit to insert 
 in order to forward his commodity ; that he is not really left 
 to his own free will but must take whatever is offered. It is 
 in defense of the shipper's right, and because of that doctrine 
 of public policy which has been so frequently alluded to, that 
 the courts take this position, and it would seem that every 
 principle upon which the law of contract is based would de- 
 mand that there should be given to the parties an option of 
 free, open and absolute consent — a consent that is given de- 
 liberately and from choice rather than that consent which is 
 forced, and given because there is no alternative. 
 
 In Louisville da N. R. Co. v. Gilbert,^ where it was shown 
 that a railroad company had made no reduction in its freight 
 rates in consideration of a stipulation in a bill of lading ex- 
 
 • 57 Ark. 113, 18 L, R. A. 527. A car- such dangerous articles. California 
 
 rier receiving blasting powder for Powder Works v. Atlantic & P. R. 
 
 transportation can insist upon such Co., 113 Cal. 229, 4 Am. & Eng. R. 
 
 terms and limitations of common- Cases (N. S.), 301, 36 L. R. A. 648. 
 law liability as it sees fit, since it is ''' 88 Tenn. 430. 
 not obliged to receive and transport 
 
 491 
 
§ 515.] CAEEIEES. , [part Y. 
 
 empting it from loss by fire, and had furnished its agents with 
 no form of bill of lading not containing a fire clause, and had 
 given to their agent no authority to submit to the shipper the 
 alternative of pa3'^ing a higher rate for a shipment with the 
 common-law responsibility attaching to the company, it was 
 held that the company was liable for goods destroyed by fire, 
 though its officers testify that the company bad no higher 
 freight rate where the limited liability clause was omitted 
 from the bill of lading, and that if the shipper had so requested 
 permission would have been given the shipper under a contract 
 without the fire clause in it; the holding of the court being 
 upon the ground that the stipulation was unreasonable and un- 
 just, and was not a valid limitation of the company's liability 
 as a common carrier. 
 
 And in Atchison, Topelai, etc. R. Co. v. Dill,^ \i was held 
 " that a carrier cannot exact, as a condition precedent for car- 
 rying stock or goods, that the shipper must sign a contract in 
 writing limiting the common-law liability, and that where a 
 carrier has two rates for carrying stock or goods, one if car- 
 ried under the common-law liability, and the other if carried 
 nnder a special contract, the shipper must have real freedom 
 of choice in making his selection or he will not be bound by 
 the special contract." 
 
 § 515. Conti-act must be reasonable, fair and without 
 fr^ud. — As we have said, the parties to the contract limiting 
 the liability stand upon an uneven footing; the carrier has an 
 advantage over the shipper. It often happens that the ship- 
 per is compelled to accept a very different contract from that 
 which he would desire, and hence it is that the law has a jeal- 
 ous care over the rights of the shipper in this particular. The 
 contract must be fair and reasonable, and if it is clear that the 
 carrier has made unreasonable demands and succeeded in ob- 
 taining advantage because of the vantage ground he occupies, 
 the courts will not sustain the contract. It is upon this prin- 
 ciple that it has been held that the carrier shall have the op- 
 
 1 48 Kan. 310. "A stipulation in a the destination, is valid where it has 
 through bill of lading of non-liabil- a rate over its own line for which, if 
 ity for loss by fire through the whole required, it assumes responsibilities 
 distance, issued by a carrier having for such loss." Deming v. Merchants 
 a line extending only part way to Cotton Press, etc. Co., 90 Tenn. 306. 
 
 493 
 
CH. VIII.J CONTRACTS — TEANSVOETATION OF GOODS. [§ 515. 
 
 tion to accept a contract of limited liability, or insist upon 
 obtaining from the company the insurance that the common 
 law has required of the carrier. Certainly, if the limitation 
 was obtained by fraud it would be void, as fraud vitiates all 
 contracts. The question of reasonableness and unreasonable- 
 ness is one of fact for the jury, under proper instructions from 
 the court, and so it may be said that no fixed rule can be laid 
 down with reference to what is reasonable and what is unrea- 
 sonable, but that each case must stand upon its own facts. 
 
 Where the shipper of cattle had an agreement with the car- 
 rier as to their shipment, and proceeding upon such agreement 
 loaded the cattle into the carrier's cars, but when they were all 
 loaded and the cars were sealed and the train about to start 
 the agent of the carrier presented another contract in writing 
 to be signed by the shipper, which, while it contained the same 
 rate for shipping that had been agreed upon, contained other 
 stipulations differing from the first agreement, which contract 
 the shipper signed not having an opportunity to look it over, 
 and knowing that unless it was so signed the cattle would not 
 be sent forward, the court held that the contract lacked mutu- 
 ality, and if unfair could not be enforced. The court say: 
 " Under this state of facts, can it be said that the written con- 
 tract in question was a mutual agreement, and that the minds 
 of the parties had met upon its essential features? We think 
 there can be but one answer to this question, notwithstanding 
 the theory of some authorities that hold^that an execution of 
 a bill of lading by the shipper with restrictive conditions 
 estops him from denying that he assented to its terms. In 
 cases where the courts have so held, it appeared that the exe- 
 cution was concurrent with the delivery of the goods for ship- 
 ment. This is a distinguishing feature from the facts of this 
 case, for here it is clearly shown that the goods had been de- 
 livered to the carrier and received by it previous to the time 
 the written instrument was signed and delivered. But to the 
 extent that the doctrine of these cases maj'- be opposed to our 
 views, we think they should in reason yield to the principles 
 asserted in that line of authorities that hold that where goods 
 are dehvered to a carrier under a verbal contract, not limiting 
 its liability, and afterwards an instrument limiting the carrier's 
 common-law liability is delivered or executed, it must be upon 
 
 493 
 
§ 516.] 
 
 OAKEIEES. 
 
 [PAET V. 
 
 the knowledge and assent of the shipper, or that he knew there 
 were some special terms imposed upon him in the written 
 instrument, and that he was willing and content to accept them 
 without examination." ' 
 
 In Simons v. Great Western R. Co? it was proved on the part 
 of the plaintiff " that when asked by a clerk of defendant's 
 at the time the goods were delivered at the company's ware- 
 house to sign the paper, the plaintiff expressed his unwiUing- 
 ness to do so, inasmuch as he could not see to read it, where- 
 upon the clerk said that it was of no consequence, and that the 
 signature was a mere matter of form; and that the plaintiff, 
 relying upon that assurance, signed the paper, it was held that 
 upon this evidence the jury were warranted in finding that the 
 goods were not delivered to the company to be carried under 
 the special contract." 
 
 §516. The contract, how made. — As we have seen, the 
 contract for limiting the liability of the carrier must be a 
 special contract between the shipper and the carrier. Gener- 
 ally, it is written into the bill of lading as a part of it, but it 
 need not necessarily be so written. A parol or verbal con- 
 tract may exist between the parties and be binding. The con- 
 
 ' M., K. & T. Ry. Co. v. Carter, 9 
 Tex. App. 685; Exp. Co. v. Stettaners, 
 61 111. 186; Railway Co. v. Reynolds, 
 17 Kan. 2.j4; Railway Co. v. Boyd, 91 
 111. 271; Bostwick v. Railway Co., 45 
 N. Y. 715; Gaines V. Transp. Co., 28 
 Ohio St 437; Gott v. Dinsmore, 111 
 ^ Mass. 53 ; Railway Co. v. Jury, 1 1 1 U. S. 
 .591, 592; Railway Co. v. Mfg. Co., 16 
 Wall. 324; Navigation Co. v. Bank, 
 <i How. 383; Railway Co. v. Barrett, 
 36 Ohio St. 453; Railway Co. v. Camp- 
 bell. 36 Ohio St. 658; Transp. Co. v. 
 Leysor, 89 111. 45; Railway Co. v. 
 Cravens, 20 S. W. 803-807; Railway 
 Co. V. Lock wood, 17 Wall. 359; Ex- 
 press Co. V. Moon, 39 Miss. 832 
 Transp. Co. v. Dater, 91 111. 195 
 Levering v. Transp. Co., 43 Mo. 88 
 Express Co. v. Haynes, 43 111. 89 
 Express Co. v. Spellman, 90 111. 456 
 Adams v. Buckland, 97 Mass. 124. 
 Also the decisions of the House of 
 
 Lords in Henderson v. Stephensou, 
 L. R. So. & Div. App. 470; Parker v. 
 Railroad Co. (High Court of Justice), 
 25 S. W. 97, 5 Cent. Law Jour. 134, 3 
 Am. & Eng. Encyc. of Law, 859; 3 id. 
 822; 2 Rorer on Railways, 1320. 
 
 2 2 C. B. (N. S.) 619; Kansas City v. 
 Simpson, 30 Kan. 645. " Where a 
 horse was shipped by rail and the bill 
 of lading was signed by the carrier 
 and the agent of the shipper, and 
 provided, among other things, value 
 not to exceed one hundred dollars, 
 which was arbitrarily inserted in the 
 bill of lading by the carrier, and 
 through the carrier's negligence the 
 horse was injured, held, in an action 
 by the shipper for damages, that 
 his recovery was not limited by the 
 words ' value not to exceed one hun- 
 dred dollars.' " Hance v. Wabash, 
 etc. R. Co., 56 Mo. App. 476. 
 
 494 
 
ou. 
 
 VIIT.] CONTEACTS — TEANSPOETATION OF GOODS. [§ 516. 
 
 tract that is written is not always signed by the shipper. Some 
 of the authorities have required that it should be so signed, but 
 the weight of authority does not demand that it shall be signed 
 by the shipper, and it is generally held that the acceptance by 
 the shipper of a bill of lading, or a written contract limiting 
 the liability of the carrier, is sufficient to complete the con- 
 tract between the parties, provided there is no fraud or unfair 
 dealing on the part of the carrier. 
 
 The completion of the contract by its acceptance by the 
 shipper has come to be favored by the courts, because it is 
 in these days a matter of common knowledge and well under- 
 stood among shippers that it is the habit of common carriers 
 to limit their liability, and so it is expected by every shipper 
 that certain conditions and stipulations with reference to the 
 liability of the carrier will be written or printed into every 
 bill of lading. So thoroughly has this come to be under- 
 stood that the courts have gone so far as to hold that it would 
 not be material to prove, in a case where such a contract was 
 involved, that the shipper did not read the bill of lading before 
 accepting it. And where a shipper of goods filled out a blank 
 receipt contained in a book previously furnished by an express 
 company for his use, and obtained the signature of the com- 
 pany's agent thereto upon the deliver}' to the company of a 
 package for transportation, the court held that the shipper 
 was presumed to know the contents of the receipt, and if he 
 received such receipt without objection, his consent to its con- 
 ditions willy in the absence of fraud, be conclusively presumed. 
 The court say: "The plaintiff understood it to be the shipping 
 contract, and in the absence of fraud, by receiving it without 
 objection, he is conclusively presumed to consent to its condi- 
 tions. It is now generally held that the responsibilities im- 
 posed on the carrier of goods by the common law may be re- 
 stricted and qualified by express stipulation where such stipu- 
 lation is just and reasonable; and a stipulation that the carrier 
 shall be informed as to the value of the goods delivered to him 
 for carriage as affecting the risk and degree of care required 
 is clearly reasonable." ^ But the acceptance of the bill of lading 
 ■with the contract limiting the liability of the carrier is held 
 
 'Durgin v. Am. Exp. Co., 66 N. H. 377, 9 L. R. A. 453; Merrill v. Am. Exp. 
 'Co., 62 N. H. 514; Grace v. Adams, 100 Mass. 505. 
 
 495 
 
§ 516.] CAERIBES. [PAET Y, 
 
 not to estop the shipper from denying its validity upon the 
 ground of its unreasonableness, because of the unequal footing 
 of the parties to the contract.^ 
 
 In Grace v. Ada?n$ et aU it appeared that the plaintiff de- 
 livered to the Adams Express Company, as common carriers 
 at Wilmington, a package containing $150 directed to one 
 Corbett in Massachusetts; that at the same time the express 
 company delivered to the plaintiff a bill of lading containino- 
 the stipulation that the company would not be liable in anv 
 manner or to any extent for any loss, damage or detentioa of 
 such package, or of its contents or any portion thereof, occa- 
 sioned by danger of railroad transportation, or ocean or river 
 navigation, or by fire, etc. The package was shipped and was 
 accidentally burned with the ship that conveyed it. It also ap- 
 peared that the plaintiff when he received this bill of lading 
 did not read it. The court say: "The receipt was delivered 
 to the plaintiff as the contract of the defendants ; it is in proper 
 form, and the terms and conditions are expressed in the body 
 of it in a way not calculated to escape attention. The accept- 
 ance 'of it by the plaintiff, at the time of the delivery of his 
 package, without notice of his dissent from its terms, authorized 
 the defendants to infer assent by the plaintiff. It was his only 
 voucher and evidence against the defendants. It is not claimed 
 that he did not know, when he took it, that it was a shipping 
 contract or a bill of lading. It was his duty to read it. The 
 law presumes, in the absence of fraud or imposition, that he 
 did read it, or was otherwise informed of its contents, and was 
 willing to assent to its terras without reading it. Any other 
 rule would fail to conform to the experience of all men. Writ- 
 ten contracts are intended to preserve the exact terms of the 
 obligations assumed, so that they may not be subject to the 
 
 1 Pacific Coast S. S. Co. v. Bancroft- v. New York Cent. R. Co., 98 Mass. 239; 
 Whitney Co., 94 Fed. 180, held that Rubens v. Ludgate Hill S. S. Co., 20 
 "A shipper is not estopped to deny N. Y. S. 481; Toy v. Long Island 
 the validity of a provision of a bill of Co., 56 N. Y. S. 182. See Cent. E. Co. 
 lading on the ground of its unrea- v. Hasselkus, 91 Ga. 382, 17 S. E. 
 sonabl eness, since he does not stand 838, Avhere it was held that " mere ae- 
 on an equal footing with the carrier ceptance of the bill of lading does 
 in accepting the bill of lading." not establish the shipper's assent to 
 
 2 100 Mass. 505; Rice v. Dwight stipulations limiting the carriers 
 Mfg. Co., 2 Gush. 80; Lewis v. Great liability." 
 
 Western R. Co., 5 H. & N. 67; Squire 
 
 496 
 
Oa. TIII.J CONTEAOTS — TEANSPOKTATION OF GOODS. [§ 517. 
 
 chances of a want of recollection or an intentional misstate- 
 ment. The defendants have a right to this protection, and are 
 not to be deprived of it by the wilful or negligent omission of 
 the plaintiff to read the paper." The court held that receiv- 
 ing the contract without dissent discharged the carrier from 
 liability for loss by fire not caused by his own negligence. 
 
 § 517. Contract limiting the time in which to present 
 claim or commence suit. — The law recognizes that there are 
 reasons for upholding contracts containing a limitation as to 
 the time in which the shipper must present his claim, or bring 
 suit for it, and it seems to be the general consensus of opinion 
 of the courts that the claim should be presented within a rea- 
 sonable time, and that therefore a limitation clause in the con- 
 tract which is reasonable as to time will be upheld. It seems 
 that this rule has its foundation in justice and good judgment. 
 
 The great bulk of business, as is well understood, is done by 
 railroad and steamship companies handling vast amounts of 
 freight in every country and upon every coast. It is there- 
 fore no more than reasonable that these companies which are 
 compelled to act through their numerous agents and servants, 
 who alone know of the circumstances of the loss or injury to 
 the property, and upon whom the company must depend to 
 trace the goods that are lost and to restore them, should be 
 protected in their stipulations limiting the time when claims 
 should be presented. Upon these servants, too, the carrier 
 must necessarily depend for testimony as to the facts sustain- 
 ing his defense in case suit is commenced. To say that stip- 
 ulations limiting the time for commencement of suits to a rea- 
 sonable period are not to be upheld would often amount to 
 depriving the carrier of the proofs necessary to his defense, 
 and necessary to give to the court and the jury facts that are 
 peculiarly within the knowledge of the agents and servants of 
 the common carrier. Mr. Justice Strong, in Express Co. v. 
 Caldwell^ said : " A common carrier is always responsible for 
 his negligence no matter what his stipulations may be. But 
 
 1 21 Wall. 264, 268; St. Louis, etc. Ky. 525; Cleveland, etc. Co. v. Newlin, 
 Co. V. Hurst, 67 Ark. 407; Murris v. 74 111. App. 638; Cox v. Vermont 
 New H. Steamboat Coi, 62 N. Y. S. Cent. E. Co., 170 Mass. 139, 49 N. E. 
 474; Norfolk, etc. R. Co. v. Reeves, 97; Popham v. Barnard, 77 Mo. App. 
 97 Va. 284 ; Brown v. Railroad Co., 100 619. 
 32 497 
 
§ 518.] OAEEIEES. [PAET T. 
 
 aa agreement that, in case of failure by the carrier to deliver 
 the goods, a claim shall be made by the bailor, or by the con- 
 signee, within a specified period, if that period be a reasonable 
 one, is altogether of a different character. It contravenes no 
 public policy. It excuses no negligence. It is perfectly con- 
 sistent with holding the carrier to the fullest measure of good 
 faith, of diligence, and of capacity, which the strictest rules of 
 common law ever required. And it is intrinsically just as ap- 
 plied to the present case. The defendants are an express com- 
 pany. We cannot close our eyes to the nature of their business. 
 They carry small parcels, easily lost or mislaid, and not easily 
 traced. They carry them in great numbers. Express com- 
 panies are modern conveniences, and notoriously they are very 
 largely employed. They may carry, they often do carry, hun- 
 dreds, even thou sands, of packages daily. If one be lost, or 
 alleged to be lost, the difficulty of tracing it is increased by 
 the fact that so many are carried, and it becomes greater the 
 longer the search is delayed. If a bailor may delay giving 
 notice to them of a loss, or making a claim indefinitely, they 
 may not be able to trace the parcels bailed, and to recover 
 them, if accidentally missent, or if they have in fact been prop- 
 erly delivered. With the bailor the bailment is a single trans- 
 action of which he has full knowledge; with the bailee, it is 
 one of a multitude. There is -no hardship in requiring the 
 bailor to give notice of the loss, if any, or make a claim for 
 compensation within a reasonable time after he has delivered 
 the parcel to the carrier. There is great hardship in requiring 
 the carrier to account for the parcel long after that time, when 
 he has had no notice of any failure of duty on his part, and 
 when the lapse of time has made it difficult, if not impossible, 
 to ascertain the actual facts. For these reasons such limitations 
 have been held valid in similar contracts, even when they seem 
 to be less reasonable than in the contracts of common carriers." 
 § 518. Contract limiting liability need not be in writing. 
 While the contract limiting the liability must be a special one, 
 it need not be in writing; it may be oral. Whether written 
 or oral it must be clear and explicit, and well understood so 
 that it can be fully proven. If the contract be oral, it may be 
 proven by any competent evidence that will show its existence 
 and terms. 
 
 498 
 
CH. Till.] OONTEACTS — TRANSPORTATION OF GOODS. [§519. 
 
 Mr. Justice Campbell, in American Trans. Co. v. Moore} said: 
 " While it is true that it devolves upon a carrier to show affirm- 
 atively the terms of any contract which lessens his common- 
 law liability, yet that fact is to be proved, like any other, by any 
 pertinent evidence. If in writing, the writing must be shown ; 
 but if by parol, there is no rule which requires different proof 
 from that which would establish any other contract. It does 
 not matter that the evidence is conflicting, for in civil cases 
 the jury must always decide upon the weight of evidence ; and 
 there is no rule (except where turpitude or illegality is in issue) 
 which requires one contract to be proven by more or different 
 testimony than another. The jury, in each case, must be sat- 
 isfied that a certain contract exists; and, if satisfied, that is 
 suflBcient." 
 
 The usual rules of evidence obtain in respect to written 
 and oral contracts, in this case as in others; that is to say, if 
 the contract has been put in writing by the parties, it cannot 
 be contradicted by parol proof of the various oral understand- 
 ings, for the written contract will be held to have merged in 
 itself all the prior oral agreements touching the same subject; 
 and when such contract does not run counter to the principles 
 we have already discussed that might avoid or modify it, the 
 contract that is written will stand as the agreement of the 
 parties.^ 
 
 § 519. Construction of the contract limiting liability. — 
 As we have seen, the contract limiting the liability of the com- 
 mon carrier is virtually a waiver of the rights of the shipper. 
 The shipper, however, may insist upon those rights ; he may, as 
 we have seen, insist upon the shipment of his goods with all 
 the liability of an insurer which attaches to the common car- 
 rier by the rules of the common law ; for it is conceded that 
 this liability, laid upon the common carrier by the rules of the 
 common law, had its origin in public policy. The contract 
 which limits that liability, therefore, is not only a waiver of 
 the rights of the shipper, but it also afifects and changes the 
 rule which originated in public policy. It may be further said 
 that these contracts, although they may be supported by a con- 
 sideration moving from the carrier, are, nevertheless, largely 
 
 ' 5 Mich. 368, 379. 19 IlL 186; Gould v. Hill, 2 Hill 
 
 2 Illinois Cent. R. Co. v. Morrison, (N. Y.), 638. 
 
 499 
 
§ 520. J CAEEIEES. [PAET V, 
 
 in the interest of the carrier. Because of this the courts have 
 with great unanimity — indeed, without dissent — held that 
 they must be strictly construed, and, if there be any doubt or 
 ambiguity, the construction should favor the shipper. 
 
 In Fairbanks & Go. v. Cincinnati R. Co} the court held "that 
 exemptions in favor of a common carrier in bills of lading are 
 to be strictly construed against the carrier, and any doubt or 
 ambiguity therein is to be resolved in favor of the shipper. 
 And when the particular dangers or risks against which the 
 carrier has specifically guarded himself in his receipt are fol- 
 lowed by general and comprehensive words of exemption, the 
 latter are to be construed to embrace only occurrences ejvs- 
 deiii generis with those previously enumerated, unless there is 
 a clear intent to the contrary."^ 
 
 § 520. Contracts implied from notice. — It seems ta 
 
 be generally conceded by the courts and authorities that the 
 carrier cannot limit his common-law liability by a mere gen- 
 eral notice. 
 
 Chief Justice Bigelow, in Judson v. Western R. Co.^ clearly 
 states the prevailing doctrine in this country. He says: "But 
 it is a very different proposition to assert that a common car- 
 rier may escape his legal liability or materially change it by 
 general notice to all persons that he will not be responsible 
 for the loss or injury of property intrusted to his custody, or 
 only liable therefor under such conditions and limitations as 
 he may think proper to impose. A common carrier is in a 
 
 147 U. S. App. 744, 38 L. R. A. 371; they are capable of other construo- 
 
 Blaok V. Goodrich Trans. Co., 55 tion; the rule applies both to car- 
 
 Wis. 319, 43 Am. Rep. 713; Cream riers of persons and goods." "The 
 
 City R. Co. V. Chicago, etc. R. Co., 63 contract limiting liability must be 
 
 Wis. 93, 53 Am. Rep. 267; Little fairly obtained, must be just, and 
 
 Rock, etc. R. Co. v. Talbot, 39 Ark. reasonable." Louisville & N. R. Co. 
 
 539. V. Gilbert. 88 Tenn. 430. 
 
 ^ Hutchinson on Carriers (2d ed.), 3 e Allen, 486, 490, 83 Am. Deo. 646; 
 375, 376; Hawkins v. Great Western McMillan v. Michigan, etc. R. Co., 6 
 R. Co., 17 Mich. 57, 97 Am. Rep. 179; Mich. 79, 111; Gott v. Dinsmore, 111 
 The Caledonia, 157 U. S. 124. In Mass. 45; Fillebrown v. Grand Trunk 
 Kennedy v. N. Y. C. & H. R. R. Co., R. Co., 55 Me. 462, 93 Am. Rep. 606; 
 135 N. Y. 433, it was held: "General 111. Cent. R. Co. v. Frankensberg. 54 
 words in the contract of a common 111. 88; Davidson v. Graham, 3 Ohio- 
 carrier limiting his responsibility St. 131 ; Brown v. Adams Exp. Co., 
 will not be construed as exempting 15 W. Va. 813. 
 it from liability for negligence, when 
 
 500 
 
OH. TIII.J CONTBAOTS — TKANSPOETATION OF GOODS. [§ ^20. 
 
 certain sense a public servant, exercising an employment not 
 merely for his own emolument and advantage, but for the 
 convenience and accommodation of the community in which 
 he pursues his calling. The law imposes upon him certain 
 duties and responsibilities different from, and greater than, 
 those which attach to an occupation of a purely private nature, 
 in regard to the conduct of which the public have no interest, 
 and which can be carried on at the option or according to the 
 pleasure of the person who is engaged in it. A common car- 
 rier cannot legally refuse to transport property of a kind which 
 comes within the class which he usually carries in the course 
 of his employment, if it is tendered to him at a suitable time 
 and place, with an oflfer of a reasonable compensation. Like 
 an innkeeper, he is obliged to exercise his calling upon due re- 
 quest under proper circumstances, and is liable to an action 
 for damages if he wrongfully refuses to do so. A legal obli- 
 gation rests upon him to assume the duty which he holds him- 
 self out as ready to perform., and a correlative right belongs 
 to the owner of goods to ask for and require their reception 
 and transportation upon the terms of liability fixed and de- 
 fined by the established rules of law. The carrier has not the 
 option to accept or refuse the carriage of the goods at his 
 pleasure; but the person seeking to have them transported 
 can choose whether they shall be carried without any restric- 
 tion of the carrier's duty as prescribed by law, or whether he 
 will waive a portion of his rights, and consent to a modifica- 
 tion of the legal liability which attaches to the carrier. Such 
 being the legal relation which subsists between a common car- 
 rier and his employer, it certainly would be inconsistent with 
 it to hold that a carrier, by a mere notice brought home to the 
 owner of goods intrusted to his care that he did not intend to 
 assume all the liabilities of his calling, could escape or mate- 
 rially change the responsibility which the law annexes to the 
 contract of the parties. It would, in effect, put it in the power 
 of the carrier to abrogate the rules of law by which the exer- 
 cise of his employment is regulated and governed. Certainly 
 such a notice, even if shown to have been within the knowl- 
 edge of the owner of goods, would, in the absence of evidence 
 of his direct dissent to its terms, afford no sufficient ground 
 for the inference that he had voluntarily agreed without any 
 
 501 
 
§ 520.] CAEEIEES. [part V. 
 
 consideration to relinquish and give up the valuable right of 
 having his goods carried at the risk of the carrier." 
 
 The leading case in this country is Eoilister v. Nowlen} 
 where the question was fairly before the court. The court say: 
 "The principal question in the cause arises out of the notice 
 given by the coach proprietors that baggage carried by the 
 telegraph line would be at the risk of the owner; and the first 
 inquiry is, whether there was sufficient evidence to charge the 
 plaintiff with a knowledge of the notice. If we are to follow 
 the current of modern English decisions on this subject, it can- 
 not be denied that there was evidence to be left to a jury, and 
 upon which they might find that the plaintiff had seen the 
 notice. But I think the carrier, if he can by any means re- 
 strict his liability, can only do so by proving actual notice to 
 the owner of the property. I agree to the rule laid down by 
 Best, C. J.,^ when the courts of Westminster Hall had com- 
 menced retracing their steps in relation to the liability of 
 carriers, and were endeavoring to get back onto the firm 
 foundation of the common law. He said: ' If coach proprie- 
 tors wish honestly to limit their responsibility, they ought to 
 announce their terms to every individual who applies at their 
 office, and at the same time to place in his hands a printed 
 paper, specifying the precise extent of their engagement. If 
 they omit to do this, they attract customers under the con- 
 fidence inspired by the extensive liability which the common 
 law imposes upon carriers, and then endeavor to elude that 
 liability by some limitation which they have not been at the 
 pains to make known to the individual who has trusted them.' 
 
 "I should be content to place my opinion upon the single 
 ground that, if a notice can be of any avail, it must be directly 
 brought home to the owner of the property;, and that there 
 was no evidence in this case which could properly be submitted 
 to a jury to draw the inference that the plaintiff knew on what 
 terms the coach proprietor intended to transact his business. . . . 
 
 "The rules of the common law in relation .to common car- 
 riers are simple, well defined and, what is no less important; 
 well understood. The carrier is liable for all losses except those 
 occasioned by the act of God or the public enemies. He is re- 
 garded as an insurer of the property committed to his charge, 
 
 1 19 Wend. 234. 2 Brooke v. Pickwick, 4 Bing. 218. 
 
 502 
 
CH. VIII.] CONTRACTS — TEANSPOETATION Off GOODS. [§ 520. 
 
 and neither destruction by fire, nor robbery by armed men, will 
 discharge him from liability. . . . 
 
 "A common carrier exercises a public employment, and con- 
 sequently has public duties to perform. He cannot, like the 
 tradesman or mechanic, receive or reject a customer at pleasure, 
 or charge any price that he chooses to demand. If he refuse 
 to receive a passenger or carry goods according to the course 
 of his particular employment, without a sufficient excuse, he 
 will be liable to an action; and he can only demand a reason- 
 able compensation for his services and the hazard which he in- 
 curs. . . 
 
 " The law in relation to carriers has in some instances oper- 
 ated with severity, and they have been charged with losses 
 against which no degree of diligence could guard. But cases 
 of this description are comparatively of rare occurrence ; and 
 the reason why they are included in the rule of the common 
 law is not because it is fit in itself that any man should an- 
 swer without a fault, but because there are no means of effect- 
 ually guarding the public against imposition and fraud without 
 making the rule so broad that it will sometimes operate harshly. 
 It is well remarked by Best, C. J., that ' when goods are deliv- 
 ered to the carrier they are usually no longer under the eye of 
 the owner; he seldom follows or sends any servant with them 
 to their place of destination. If they should be lost or injured 
 by the grossest negligence of the carrier or his servants, or- 
 stolen by them, or by thieves in collusion with them, the owner 
 would be unable to prove either of these causes of Iqss. His 
 witnesses must be the carrier's servants, and they, knowing 
 that they could not be contradicted, would excuse their mas- 
 ters and themselves.' . . . 
 
 " There is less of hardship in the case of the carrier than has 
 sometimes been supposed; for while the law holds him to an 
 extraordinary degree of diligence, and treats him as an insurer 
 of the property, it allows him, like other insurers, to demand 
 a premium proportioned to the hazards of his employment. 
 The rule is founded upon a great prmciple of public policy; it 
 has been approved by many generations of wise men; and if 
 the courts were now at liberty to make instead of declaring 
 the law, it may well be questioned whether thej"- could devise 
 a system which, on the whole, would operate more beneficially. 
 
 503 
 
§ 520.] CAEEIEES. [PAET T. 
 
 I feel the more confident in this remarli from the fact that in 
 Great Britain, after the courts had been perplexed for thirty 
 years with various modifications of the law in relation to car- 
 riers, and when they had wandered too far to retrace their 
 steps, the legislature finally interfered and, in all its most im- 
 portant features, restored the salutary rule of the common 
 law. . . . 
 
 " So far as the cases have proceeded on the ground of fraud, 
 and can properly be referred to that head, they rest on a solid 
 foundation ; for the common law abhors fraud, and will not fail 
 to overthrow it in all the forms, whether new or old, in which 
 it may be manifested. As the carrier incurs a heavy respon- 
 sibility, he has a right to demand from the employer such in- 
 formation as will enable him to decide on the proper amount 
 of compensation for his services and risk, and the degree of 
 care which he ought to bestow in discharging his trust; and 
 if the owner give an answer which is false in a material point, 
 the carrier will be absolved from the consequences of any loss 
 not occasioned by negligence or misconduct. . . . 
 
 " But conceding that there may be a special contract for a 
 restricted liability, such a contract cannot, I think, be inferred 
 from a general notice brought home to the employer. The argu- 
 ment is, that where a party delivers goods to be carried after 
 seeing a notice that the carrier intends to limit his responsi- 
 bility, his assent to the terms of the notice may be implied. 
 But this argument entirely overlooks a very important consid- 
 eration. Notwithstanding the notice, the owner has a right 
 to insist that the carrier shall receive the goods subject to all 
 the responsibilities incident to his employment. If the de- 
 livery of goods under such circumstances authorizes an impli- 
 cation of any kind, the presumption is as strong, to say the 
 least, that the owner intended to insist on his legal rights, as 
 it is that he was willing to yield to the wishes of the car- 
 rier. . . . 
 
 " If after a trial of thirty years the people of Great Britain, 
 whose interests and pursuits are not very dissimilar to our 
 own, have condemned the whole doctrine of limiting the car- 
 rier's liability by notice; if after a long course of legal contro- 
 versy they have retraced their steps, and returned to the sim- 
 plicity and certainty of the common-law rule, we surely ought 
 
 504 
 
€H. YIII.] CONTEAOTS TEANSPOETATION OF GOODS. [§ 520. 
 
 to profit by their experience, and should hesitate long before 
 we sanction a practice which not only leads to doubt and un- 
 certainty concerning the rights and duties of the parties, but 
 which encourages negligence, and opens a wide door to fraud." 
 
 It may be said, however, that there are certain reasonable 
 regulations made by the carrier by general notice which are 
 considered binding upon the shipper; namely, regulations as 
 to the manner of delivering to the carrier the freight for trans- 
 portation, the giving to the carrier notice of the character of 
 the freight when not apparent, or the value of the property 
 that is being shipped. 
 
 Judge Cooley, in McMillan et al. v. M. S. <& N. I. R. Co.^ 
 quotes with approval the language of Greenleaf : " ' It is now 
 well settled that a common carrier may qualify his liability 
 by a general notice to all who may employ him of any reason- 
 able requisition to be observed on their part in regard to the 
 manner of delivery and entry of parcels, and the information 
 to be given to him of their contents, the rates of freight, and 
 the like; as, for example, that he will not be responsible for 
 goods above the value of a certain sum, unless they are en- 
 tered as such and paid for accordingly.' ^ These are but the 
 reasonable regulations which every man should be allowed to 
 establish for his business, to insure regularity and promptness, 
 and to properly inform him of the responsibility he assumes. 
 And it has been held that notice derived from the usage of the 
 carrier may determine the manner in which he is authorized 
 to make delivery.' But beyond the establishment of such rules 
 the force of a mere notice cannot extend. Subject to reason- 
 able regulations, every man has a right to insist that his prop- 
 erty, if of such description as the carrier assumes to convey, 
 shall be transported subject to the common-law liability. ' A 
 common carrier has no right to refuse goods offered for car- 
 riage at the proper time and place, on tender of the usual and 
 reasonable compensation, unless the owner will consent to his 
 receiving them under a reduced liability ; and the owner can 
 insist on his receiving the goods under all the risks and respon- 
 
 '16 Mioh. 79, 110, 93 Am. Dec. 308. 3 Farmers' & Mechanics' Bank v. 
 '■'S Greenl. Ev., sec. 335; Western Champlain Trans. Co., 16 Vt. 52; 
 Trans. Co. v. Newhall, 34 111. 466; S. c, 18 Vt. 131, and 33 Vt. 186. 
 
 505 
 
§ 521.J 
 
 CAKEIEKS. 
 
 [part V. 
 
 sibilities which the law annexes to his employment.' ^ The 
 fact that a restrictive notice is shown to have been actually re- 
 ceived or seen by the owner of the goods will not raise a pre- 
 sumption that he assents to his terms, since it is as reasonable 
 to infer that he intends to insist on his rights as that he assents 
 to their qualification; and the burden of proof is upon the car- 
 rier to establish the contract qualifying his liability, if he 
 claims that one exists."' 
 
 It may be said, however, that the authorities are not e'^ntirely 
 harmonious upon this question. While they generally hold 
 that a general or published notice is not sufficient from which 
 a contract limiting liability can be implied, there are cases 
 that go so far as to hold that when the notice is brought home 
 to the shipper, and the course of business is well understood, 
 and has been often acted upon without question by the shipper, 
 in such case it may be binding upon the shipper.' 
 
 § 521. Further consideration. — By way of summing 
 
 up the question of limitation of liability by general notice and 
 
 1 Cole V. Goodwin, 19 Wend. 251; Pa. St. 208; Farnham v. Camden, etc. 
 Jones V. Voorheis, 10 Ohio, 14.5; Ben- 
 nett V. Button, 10 N. H. 487; N. J. 
 Nav. Co. V. Merchants' Bank, 6 How. 
 344; Moses v. Boston & M. R. Co., 34 
 N. H. 71, Kimball v. Rutland, etc. Co., 
 26 Vt. 356; Slocum v. Fairchild, 7 
 Hill, 39-'; Dorrv. N. J. Steam Navi- 
 gation Co,, 4 Sandf. (N. Y.) 136, 11 N. 
 Y. 485; Mich. Cent. R. Co. v. Hale, 6 
 Mich. 343. Above cited in the opin- 
 ion of Cooley, J. 
 
 2 N. J. Steam Nav. Co. v. Merchants' 
 Bank, 6 How. 344. 
 
 3 Bingham v. Rogers. 6 W. & S. 
 (Pa.) 495. This doctrine was ques- 
 tioned in Laing v. Colder, 8 Pa. St. 
 479, where the judge in delivering 
 the opinion says: " Were the ques- 
 tion an open one in Pennsylvania, I 
 should for one unhesitatingly follow 
 them (meaning contrary authorities) 
 in repudiating a principle which 
 places the bailor absolutely at the 
 mercy of the carrier, whom in a vast 
 majority of instances he cannot but 
 choose to employ." See also Pa. 
 Cent. R. Co. v. Schwarzenberger, 45 
 
 R. Co., 55 Pa. St. 53. It has been 
 held in Kentucky '• that public notice 
 given by the carrier and brought 
 home to the knowledge of the ship- 
 per, enters into the contract of af- 
 freightment so far as the carrier has 
 right to impose terms, etc.'' Orndorff 
 V. Adams Express Co., 3 Bush (Ky.), 
 195. In North Carolina it has been 
 held that notice brought to the 
 knowledge of the owner will reason- 
 ably qualify the liability of the car- 
 rier in certain oases, as, that they 
 will not be liable for glass in a box 
 or articlt3s of unusual value unless 
 informed of the facts. Smith v. N. 
 Car. R. Co., 64 N. C. 285. And in 
 Maine, that notice brought home to 
 the owner of goods at the time of the 
 delivery for shipment, if expressly or 
 impliedly assented to, will restrict 
 liability. Fillebrown v. Grand Trunk 
 R. Co., 55 Me. 462; Little v. Boston, 
 etc. Co., 66 Me. 239. See the strong 
 language of Cowen, J., in Cole v. 
 Goodwin, 19 Wend. 260. 
 
 506 
 
CF. TIII.J CONTEACTS — TEANSPOETATION OF GOODS. [§ 522. 
 
 drawing conclusions from what has already been said, it may 
 be observed: First, the contract for carriage as to the liability 
 of the carrier is fixed by the common law except as modified 
 by statute or contract. Second, the shipper may insist that 
 there shall be no modifications, when there are no statutes pro- 
 viding for it, and that the carrier shall transport his freight as 
 an insurer. Third, no modification can be made by the mere 
 act of the carrier alone. Fourth, the contract modifying the 
 liability, to be valid, must have a consideration to support it. 
 
 With these settled principles of the law as to modifying the 
 common-law liability of the carrier, what conclusion can be 
 drawn as to the effect of a general notice ? If the notice is 
 posted up in conspicuous places or published and circulated 
 through newspapers or other public means and made as public 
 as possible, it could not possibly partake of the requisites sug- 
 gested. If this sort of notice limits the liabilit}^, the shipper 
 would be deprived of his right to ship his goods so as to take 
 advantage of the common-law liability of the carrier. It would 
 deprive him of that right which we have seen belongs to him, 
 to insist that there should be no modification of liability. The 
 carrier could make his own terms, and, without consulting the 
 shipper, could determine his own liability to suit himself; there 
 need be no consideration and no assent. To hold that such a 
 notice could modify liability would be to sweep away every 
 principle that has been grounded by the prevailing authorities 
 and decisions in this country. 
 
 § 522. General notice written or printed upon the 
 
 receipt or bill of lading. — The authorities do not seem to 
 agree as to the extent of limiting the liability of the carrier by 
 a printed or written notice upon the receipt or way-bill given 
 the shipper at the time of delivering the goods. There is a 
 distinction made by the courts as to stipulations written in the 
 bill of lading limiting the liability and signed by the carrier 
 or his agent, and a general notice written or printed upon the 
 receipt or upon the bill of lading and not signed by any person. 
 There are certain facts which should be taken into considera- 
 tion with reference to the bill of lading. First, it is generally 
 understood that the shipper, by the bill of lading, seeks to limit 
 his liability; and further, it is understood that there is a place 
 on or part of the bill of lading where the language limiting the 
 
 507 
 
g 522.] OAEKIEES. [part V. 
 
 liability is generally written or printed, so that it may be said 
 that the shipper would look to this part of the bill of lading 
 for the stipulations limiting the liability, and when they are 
 written here and signed by. the carrier, or the agent of the car- 
 rier, and delivered to the shipper at the time the goods are de- 
 livered for transportation, and the shipper receives the bill, he 
 is presumed to have accepted these stipulations and to under- 
 stand the contents of the bill. But it is very different when the 
 instrument delivered is a receipt with a general notice written 
 or printed upon it, not signed, or when it is a general notice 
 printed upon the contract or the bill of lading and not in a con- 
 spicuous place, and not accepted or assented to by the shipper. 
 But as to these notices it may be said that if they are notices 
 printed upou the receipt or the way-bill in such a way and so con- 
 spicuous as to bring the contents home to the shipper, and the 
 notice is as to the receiving of the goods for shipment, and is rea- 
 sonable as to the value of the goods, and the amount for which 
 the company will be held liable, such like cases, it seems, will 
 be held to be valid. It is upon the theory that the carrier has 
 the right to know the character of the freight that is being 
 presented for shipment. Is it gunpowder or dynamite or dan- 
 gerous explosives that are sought to be shipped? If so, the car- 
 rier may fix his terms for receiving it, and may refuse to accept 
 it under the common-law liability. Are the packages what they 
 appear to be, or is there a reasonable suspicion that they con- 
 tain goods secreted within them of very much greater value? 
 Are they goods as they appear, of little value, or do they con- 
 tain, hidden from view among other goods, bank bills, gold 
 coin, diamonds, or such like articles as would very greatly in- 
 crease the rate of shipment and the responsibility of the car- 
 rier? In such cases there can be no doubt but that the carrier 
 has the right to know the responsibility he is assuming; and 
 along this line, and by way of fixing his responsibility in such 
 cases, he may give notice to the shipper of certain requirements 
 which must be complied with, which will be binding and the 
 law enforce. But if the notice refers to the liability of the car- 
 rier in transporting the goods, where there is no fraud or de- 
 ception in the delivering or the receiving of them by the car- 
 rier, such liabilitj'' cannot be limited by notice upon the receipt 
 or bill of lading unless assented to by the shipper. 
 
 508 
 
CH. Till.] CONTRACTS — TEANSPOETATION OF GOODS. [§ 522. 
 
 It was said by the supreme court of New Hampshire in 
 Moses V. Boston, etc. R. Co.: ' "We do not mean to hold that 
 there are no cases in which the carrier may, by notice, define 
 and qualify his responsibility. It may be quite reasonable that 
 he should insist on proper information as to the value of the 
 article which he carries. This would not seem to be any in- 
 fringement upon the principle of the ancient rule. He must 
 have a right to know what it is that he undertakes to carrj', 
 and the amount and extent of his risk. We can see nothing 
 that ought to prevent him from requiring notice of the value 
 of the commodity delivered to him, when, from its nature, or 
 the shape and condition in which he receives it, he may need 
 the information; nor why he should not insist on being paid in 
 proportion to the value of the goods, and the consequent 
 amount of his risk." And in Railroad Co. v. Mfg. Co} the su- 
 preme court of the United States, in an opinion by Mr. Justice 
 Davis, discusses this question, after quoting with approval 
 from If. J. Steam Navigation Co. v. Merchants' Banli^ and 
 says:' "These considerations against the relaxation of the com- 
 mon-law responsibility by public advertisements apply with 
 equal force to notices having the same object, attached to re- 
 ceipts given by carriers on taking the property of those who 
 employ them into their possession for transportation. Both 
 are attempts to obtain by indirection exemption from burdens 
 imposed in the interests of trade upon this particular business. 
 It is not only against the policy of the law, but a serious in- 
 jury to commerce, to allow the carrier to say that the shipper 
 of merchandise assents to the terms proposed in a notice, 
 whether it be general to the public or special to a particular 
 person, merely because he does not expressly dissent from them. 
 If the parties were on an equality in their dealings with each 
 other there might be some show of reason for assuming acqui- 
 escence from silence, but in the nature of the case this equality 
 does not exist, and, therefore, every intendment should be 
 made in favor of the shipper when he takes a receipt for his 
 property, with restrictive conditions annexed, and says noth- 
 ing, that he intends to rely upon the law for the security of 
 his rights. It can readily be seen, if the carrier can reduce 
 
 ' 24 N. H. 71, 9 L. R. A. 455. 2 16 Wall. (U. S.) 318. » 6 How. 344. 
 
 509 
 
52±i 
 
 CAERIEES. 
 
 [PAET V. 
 
 his liability in the way proposed, he can transact business on 
 any terms he chooses to prescribe. The shipper, as a general 
 thing, is not in a condition to contend with him as to terms, 
 nor to wait the result of an action at law in case of refusal to 
 carry unconditionally. Indeed such an action is seldom re- 
 sorted to on account of the inability of the shipper to delay 
 sending his goods forward. The law in conceding to carriers 
 the liability to obtain any reasonable qualifications as to their 
 responsibility by express contract hffs gone as far in this direc- 
 tion as public policy will allow. To relax still further the 
 strict rules of common law applicable to them, by presuming 
 acquiescence in the conditions on which they propose to carry 
 freight when they have no right to impose them, would, in our 
 opinion, work great harm to the business community. The 
 weight of authority is against the validity of the kind of no- 
 tices we have been considering. And many of the courts that 
 have upheld them have done so with reluctance, but felt them- 
 selves bound by previous decisions.'" 
 
 1 York Co. V. Cent. R Co., 3 Wall. 
 107, 113. "He cannot screen him- 
 self from liability by any general or 
 special notice, nor can he coerce the 
 owner to yield assent to a limitation 
 of a responsibility by making exor- 
 bitant charges when such assent is 
 refused." The supreme court of Illi- 
 nois, in Merchants' Dispatch, etc. Co. 
 V. Furthmann, 149 111. 66, where 
 there was written upon the back of 
 the receipt for the goods delivered 
 the following notice: "The within 
 mentioned goods to be forwarded 
 under the following conditions," 
 after noting a number of conditions, 
 say: "If the contention of appellant 
 is correct, the paper of May 4 is a re- 
 ceipt for the goods, with a contract 
 to carry, upon certain conditions 
 printed on the back of it. signed by 
 no one. We are clearly of the opinion 
 that such a receipt should not be 
 giren the legal effect of a special 
 contract limiting a public carrier's 
 common-law liability. No good rea- 
 son, can be shown why, if the inten- 
 
 tion is to so contract with the shipper 
 in good faith, the conditions should 
 not be embodied in the contract and 
 properly signed, as was done in the 
 bill of lading dated May 6, and this 
 we understand to be in harmony 
 with the decisions in New York. 
 There the court of appeals has, as be- 
 fore stated, held that where the con- 
 ditions are embodied in the receipt 
 or bill of lading, as in Belger v. Dins- 
 more, 51 N. Y. 166, the acceptance of 
 the paper is conclusive evidence of 
 the fact that the shipper knew its 
 contents and assented thereto; but 
 we have been able to find no decision 
 of that court giving such a construc- 
 tion to a mere receipt calling atten- 
 tion to conditions on the back of it. 
 On the contrary, it has there been 
 uniformly held that the liability 
 cannot be restricted or limited by 
 notice, whether brought home to the 
 shipper or not." In Indianapolis, etc. 
 Co. V. Cox, 29 Ind. 360, 95 Am. Deo. 
 640: "He may limit his responsibil- 
 ity by notice if brought home to the 
 
 510 
 
CH. YIII.] CONTEACTS — TEANSPOETATION OF GOODS. 
 
 [§ 523. 
 
 § 523. Representations of the shipper, fraudulent or oth- 
 erwise. — The shipper is under as binding an obligation as the 
 carrier to deal fairly and honestly in making the shipment. 
 If his attention is called to the matter of value or contents of 
 the package he must state truthfully to the shipper with refer- 
 ence to these matters, and if he does not, or if he consents to 
 the shipping of the freight upon a statement of a limited value 
 for the purpose of receiving a lesser rate, in case of loss or in- 
 jury to the freight he will be estopped from claiming that the 
 goods are of greater value than the amount stated at the time 
 of their shipment. So it follows that if the statement as to 
 value, or the statement as to contents of packages, be fraudu- 
 lently made by deceit and misrepresentation for the purpose 
 
 consignor and assented to clearly 
 and unequivocally by him." Buck- 
 land V. Adams Exp. Co., 97 Mass. 134, 
 93 Am. Dec. 68. But this assent is 
 not to " be inferred froln the mere 
 fact that knowledge of such notice 
 on the part of the owner or consignor 
 is shown. The evidence must show 
 that the terms on which the carrier 
 proposed to carry the goods were 
 adopted as the contract between the 
 parties." The burden is on the car- 
 rier to show a restricted liability, 
 and that a notice to that effect was 
 received or seen by the shipper is 
 not sufiBcient; his assent must be 
 shown. McMillan v. Mich. etc. R. 
 Cp., 16 Mich. 79, 93 Am. Dec. 308; 30 
 Am. & Eng. R. Cases, 12, note; 37 
 Am. & Eng. R: Cases, 477, note. See 
 also article by C. C. Binney, 37 Am. 
 Law Reg. (N. S.) 628, note; Hutch, on 
 Car., sec. 356. " However this may 
 be, when the knowledge of such a 
 regulation of the carrier in the con- 
 duct of his business has come to the 
 shipper only by notice directly con- 
 veyed to him or by a previous course 
 of dealing, there is no question that 
 when the earner, in the very con- 
 tract by which he undertakes to 
 carry the goods, whether it be in the 
 form of a receipt accepted by the 
 shipper, or any other form of express 
 
 contract, has declared that if not ap 
 prised of the value of the thing to be 
 carried, and paid for his risk accord- 
 ingly, he will be liable only to a cer- 
 tain extent, the shipper, if he would 
 hold him in case of loss beyond that 
 limit, must inform the carrier, 
 whether the inquiry be made of him 
 or not, of the value of which he 
 wishes him to assume the risk, and 
 jmust compensate him accordingly. 
 And some of the cases have gone so 
 far as to assert that where the liabil- 
 >ity of the carrier is thus condition- 
 ally limited, if the owner of the 
 goods of greater value than would 
 be ordinarily indicated by the box 
 or package in which they are con- 
 tained, delivers them to the carrier 
 without any notice of their extraor- 
 dinary value and without paying 
 charges on them commensurate 
 therewith, any attempt, in case of 
 their loss, to impose a liability upon 
 him beyond the limit prescribed in 
 the contract would be an attempted 
 fraud upon him, and that even if the 
 loss were shown to have been the 
 result of negligence, unless it were 
 of so gross a character as to be tan- 
 tamount to a misfeasance, the car- 
 rier would be protected by the terms 
 of his receipt" 
 
 511 
 
§ 524. j CAEEIEES. [PAET V. 
 
 of obtaining a less rate for their transportation, he will at least 
 be held to have assented to the amount stated at the time of 
 the shipment; and if by reason of his deceit, misrepresentation 
 and falsehood goods are taken that are dangerous and that re- 
 quire particular care in transporting them, and because of the 
 deception of the shipper injury results to the carrier by reason 
 of explosion or other damage, in such case the shipper would 
 be liable to the carrier.^ 
 
 § 524. When the contract limiting liability inures to the 
 benefit of the connecting carrier. — Whether the contract 
 limiting the common-law liability inures to the benefit of 
 a connecting carrier depends, it seems, upon the terras and 
 extent of the contract for shipment. If the contract is for 
 through transportation, it is generally conceded that it will 
 inure to the benefit of all the connecting carriers, but if it is 
 simply to carry goods over the line of road of the first carrier 
 and there deliver them to the connecting carrier, the stipula- 
 tions limiting the liability can only benefit the first carrier — 
 the party with whom the contract was made. And where the 
 contract for shipment was to transport and deliver goods at a 
 point beyond the terminus of its own line, and contained the 
 following clause: "Unavoidable accidents of the railroad and 
 of fire in the depot excepted," it was held " that, in the absence 
 of proof of any other or new contract, this exception would be 
 held to extend to every other connecting carrier who shared 
 the freight specified in the bill of lading, and that in an action 
 against such connecting carrier, the goods having been lost 
 while in its possession, he could claim the benefit of it."' But 
 where the contract was with the common carrier for an agreed 
 compensation to carry the goods to the terminus of his road, 
 
 1 Railroad Co. v. Fraloff, 100 U. S. whereby a responsibility is imposed 
 
 24. " As a condition precedent to its upon them beyond what they are 
 
 transportation, they may require in- bound to assume in consideration of 
 
 formation from him as to its value, the ordinary fare charged for the 
 
 and demand extra compensation for transportation of the person." Steers 
 
 any excess beyond that which he v. Liverpool, etc. S. S. Co., 57 N. Y. 
 
 may reasonably demand to be trans- 1 : Hill v. Railroad Co., lH Mass. 884: 
 
 ported as baggage under tbe contract Rosenfield v. Railroad Co., 103 Ind. 
 
 to carry the person. They may be 121. 
 
 discharged from liability for its full -U&ghee v. Camden, etc. E. Co., 45 
 
 value if he by any device or artifice N. Y. 514» 
 evades inquiry as to such value 
 
 513 
 
OH. VIII.] C0NTEA0T8 — TEANSPOETATION OF GOODS. [§ 525. 
 
 and then deliver them to another carrier, it was held that " no 
 authority results from the relation or from the contract em- 
 powering him to enter into a special contract on behalf of the 
 owner with the next carrier limiting or restricting the liability 
 of the latter. The whole duty of the first carrier terminates 
 with the delivery of the goods to the second, and the common- 
 law liability of the latter attaches at once by necessary impli- 
 cation upon the receipt thereof." ^ The court in the opinion 
 using this language : " Carriers who are not named in a con- 
 tract for the carriage of goods and who are not formal parties 
 to it may, under certain circumstances, have the benefit of it. 
 Such is the case when a contract is made by one of several car- 
 riers upon connecting lines or routes for the carriage of prop- 
 erty over the several routes for an agreed price by authority, 
 express or implied, of all the carriers. So, too, in the absence 
 of any authority in advance, or any usage from which an author- 
 ity might be inferred, a contract by one carrier for the trans- 
 portation of goods over his own and connecting lines, adopted 
 and acted upon by the other carriers, would inure to the benefit 
 of all thus ratifying it, and performing service under it. But in 
 such and the like cases the contract has respect to and provides 
 for the services of the carriers upon the connecting routes." 
 
 § 525. Limiting liability in England — Especially by no- 
 tice.— From a very early period the English courts recognized 
 that carriers might limit their liability by contract or by no- 
 tice, and by notice which was very general in its character. 
 Indeed, it may be said the English courts, from the decision of 
 the case of Giblons v. Paynton ^ in 1769 down to the time 
 when the carrier's statute passed the parliament in 1830, al- 
 ' "lowed the carrier great latitude by way of shielding himself 
 from liability by general notice. So extremely liberal did the 
 courts become in extending their privileges to carriers that 
 Lord EUenborough, in Downs v. Fromont ' in 1814, said: " I am 
 very sorry for the convenience of trade that carriers have been 
 allowed to limit their common-law responsibility, and some 
 
 1 Babcock v. L. S. etc. E. Co., 49 ' 4 Camp. 40. So excellent a his- 
 
 N. Y. 491, citing Root v. Great West- tory of the English decisions and acts 
 
 em R, Co., 45 N. Y. 524, and cases is given in Fish v. Chapmen, 3 Ga. 
 
 cited; Redfield on Carriers, sec. 181, 349, 46 Am. Dec. 393, that I earnestly 
 
 and cases cited in note 9; Hutch, on commend its perusal to the student 
 
 Carriers, sec. 371. of this subject. 
 
 ''4Burr. 2398. 
 
 33 513 
 
§ 525.] CAEEIEES. [part V. 
 
 legislative measure upon the subject will soon become neces- 
 sary, but I feel myself bound by the decisions, that such no- 
 tices, in cases where they apply, constitute a special contract 
 between the parties." In 1830 the statute commonly known 
 as the Carrier's Act passed parliament. The first section of 
 that act enacts " that no mail contractor, stage-coach proprietor, 
 or other common carrier by land, for hire, shall be liable for 
 the loss of, or injury to, any article or articles or property of 
 the descriptions following: (that is to say) gold or silver coin 
 of this realm or of any foreign state, or any gold or silver in a 
 manufactured or unmanufactured state, or any precious stones, 
 jewelry, watches, clocks or time-pieces of any description, 
 trinkets, bills, notes of the governor and company of the banks 
 of England, Scotland and Ireland, respectively, or of any other 
 bank in Great Britain or Ireland, orders, notes or securities for 
 payment of money, English or foreign stamps, maps, writings, 
 title-deeds, paintings, engravings, pictures, gold or silver plate 
 or plated articles, glass, china, silks in a manufactured or un- 
 manufactured state, and whether wrought up or not wrought 
 up with any other materials, furs or lace, or any of them, con- 
 tained in any parcel or package which shall have been dehv- 
 ered, either to be carried for hire or to accompany the person 
 of any passenger in any mail or stage-coach or other pubhc 
 conveyance, when the value of such article or articles or prop- 
 erty aforesaid, contained in such parcel or package, shall exceed 
 the sum of ten pounds, unless at the time of the delivery thereof 
 at the office, warehouse or receiving-house of such mail con- 
 tractor, stage-coach proprietor or other common carrier, or to 
 his, her or their bookkeeper, coachman, or other servant, for 
 the purpose of being carried or of accompanying the person of 
 any passenger as aforesaid, the value and nature of such arti- 
 cle or articles or property shall have been declared by the per- 
 son or persons sending or delivering the same, and such in- 
 creased charge as hereinafter mentioned, or an engagement to 
 pay the same, be accepted by the person receiving such parcel 
 or package." The second section provides that " when any 
 parcel or package containing any of the articles above specified 
 shall be so delivered, and its value and contents declared as 
 aforesaid, and such value shall exceed the sum of ten pounds, it 
 shall be lawful for such contractors, stage-coach proprietors 
 and other common carriers to demand and receive an increased 
 
 514 
 
CH. Till.] CONTKAOTS — TEANSPOETATION OF GOODS. [§ 526. 
 
 rate of charge, to be notified by some notice affixed in legible 
 characters in some public and conspicuous part of the office, 
 warehouse or other receiving-house where such parcels or pack- 
 ages are received by them for the purpose of conveyance, stat- 
 ing the increased rates of charge required to be paid over and 
 above the ordinary rate of carriage as a compensation for the 
 greater risk and care to be taken for the safe conveyance of 
 such valuable articles ; and all persons sending or delivering 
 parcels or packages containing such valuable articles as afore- 
 said at such office shall be bound by such notice without fur- 
 ther proof of the same having come to their knowledge.'" 
 
 Following this statute was the act of parliament passed in 
 1854, known as the Railway and Canal Traffic Act, which 
 modified the act of 1830 as applied to railways and canal 
 traflSc. The seventh section of the act, among other things, 
 provides "that railway companies are liable for the loss or in- 
 jury done to goods by the neglect or default of the company, 
 or its servants, notwithstanding any notibe limiting their lia- 
 bility, provided that they may make, by special contract as- 
 sented to and signed by the consignor, any conditions which 
 are adjudged bj' the court to be just and reasonable. The sig- 
 nature of the consignor or his agent is essential to the validity 
 of the contract." ^ 
 
 § 526. The result of this act. — Upon these acts rest 
 
 the adjudicated cases in England. It will be noticed that the 
 substance of the provisions touching this subject is that what 
 is " just and reasonajjle " is to be submitted to the courts. Very 
 many decisions of the courts might be cited, but suffice it to 
 say that an examination of the adjudications will discover that 
 the courts have virtually held that it is " just and reasonable " 
 for the carrier to limit his liability to almost any extent ex- 
 cept as to his own negligence or that of bis servants.' While 
 the courts do not say this, or state it in their opinions, it is 
 virtually the substance of their decisions. 
 
 ' The above was stated by Story on Cowen, C. J., gives a full discussion 
 
 Bailm., see. 554a. See English notes, of the several acts and decisions. 
 
 5 Eng. Rul. Cases, 337, where the 2 Aldrich v. Great Western R. Co. 
 
 statute is given and very many cases (1864), 15 Com. B. (N. S.) 583; 5 Eng. 
 
 cited and discussed. See also notes Eul. Cases, 340. 
 
 to section 554 et seq., Story on Bail- ^ See cases cited in 5 Eng. Rul. Cas. 
 
 ments, for a general discussion; Cole 340, etc.; Hutch, on Carriers, § 334, 
 
 T. Goodwin, 19 Wend. 351, where and notes. 
 
 515 
 
CHAPTEE IX. 
 
 LIABILITY OF THE COMMON CARRIER (CONTINUED)— CONNECT- 
 ING CARRIERS. 
 
 § 537. Liable only over his own line 
 
 except when contract is for 
 
 further liability. 
 528. — — If there is no contract as 
 
 to liability beyond its own 
 
 line. 
 539. The English rule. 
 
 530. Decisions of states not harmo- 
 
 nious. 
 
 531. Some conditions and relations 
 
 from which contract for 
 
 through shipment may be 
 implied. 
 § 533. Who are connecting carriers. 
 
 533. The relations between the 
 
 shipper, the initial carrier 
 and the connecting carrier. 
 
 534. The duty of the connecting 
 
 carrier. 
 
 535. Authority to make contract 
 
 binding con necting carriers. 
 
 536. Actions for loss or damage. 
 
 § 527. Liable only over his own line except when con- 
 tract is for further liability. — Primarily the carrier's liabil- 
 ity only extends to shipments over his own line, and, if he is to be 
 held liable for loss or injury beyond his line, his liabihty can 
 only be made out by proof of a contract, either express or im- 
 plied, whereby he assumes such liability. Such a contract may 
 be an express written contract, assuming liability over con- 
 necting lines and to the termination of the shipment, and, in 
 such case, like all written contracts, it must be construed by 
 the court; or it may, as said, be an implied contract — implied 
 from all the facts and circumstances. As where the goods are 
 received by the carrier marked through to their destination, 
 and a through freight rate made and collected, the initial car- 
 rier having through shipping arrangements with the connect- 
 ing carrier over whose line the goods are to be transported, 
 a contract for through shipment by the initial carrier would 
 be implied. In all cases where the contract is implied from 
 facts shown upon the trial, it is a question for the jury to de- 
 termine whether a contract was made which bound the initial 
 carrier throughout the journey to the destination of the goods. 
 
 § 528. If there is no contract as to liability beyond 
 
 its own line. — In the absence of a contract, express or im- 
 plied, fixing the liability beyond its own line, the carrier has a 
 
 516 
 
OH. IX.J CONNECTING CAEEIEES. [§ 528. 
 
 duty cast upon him by the law to safely deliver the goods into 
 the possession of the first connecting carrier. That duty will 
 not be fulfilled by simply carrying the goods to the end of its 
 own line and placing them in a warehouse. The fact that they are 
 marked through is enough to make it incumbent upon initial car- 
 rier to properly deliver them to the connecting carrier. The mere 
 taking of the goods for shipment by the initial carrier, marked 
 to a destination beyond its own line, is not a sufficient fact from 
 which an implied contract to ship to destination and assume lia- 
 bility will be inferred. It is simply a fact, with others, to be sub- 
 mitted to the jury upon such a contention, but of itself alone it is 
 not enough. The supreme court of the United States have very 
 clearly stated the prevailing rule in this country in such like 
 cases. The court say : "A railroad company is a carrier of goods 
 for the public, and, as such, is bound to carry safely whatever 
 goods are intrusted to it for transportation within the course of 
 its business to the end of its route, and there deposit them in a 
 suitable place for their owners or consignees. If the road of 
 the company connects with other roads, and goods are received 
 for transportation beyond the termination of its own line, there 
 is superadded to its duty as a common carrier that of a forwarder 
 by the connecting line; that is, to deliver safely the goods to 
 such line — the next carrier on the route beyond. This forward- 
 ing duty arises from the obligation implied in taking the goods 
 for the point beyond its own line. The common law imposes 
 no greater duty than this. If more is expected from the com- 
 pany receiving the shipment, there must be a special agree- 
 ment for it. This is the doctrine of this court, although a 
 different rule of liability is adopted in England and in some 
 of the states. As was said in Eailroad Go. v. Manufactur- 
 ing Co.} 'It is unfortunate for the interests of commerce 
 that there is anj^ diversity of opinion on such a subject, es- 
 pecially in this country; but the rule that holds the carrier 
 only liable to the extent of his own route, and for the safe 
 storage and delivery to the next carrier, is in itself so just and 
 reasonable that we do not hesitate to give it our sanction.' 
 This doctrine was approved in the subsequent case of Rail- 
 road Co. v. Pratt^ although the contract there was to carry 
 through the whole route. Such a contract may, of course, be 
 
 'Myrick v. Railroad Co., 107 U. S. 106. 232 Wall. 123. 
 
 517 
 
§ 528.] 
 
 CAEEIEES. 
 
 [PAET V. 
 
 made with any one of different connecting lines. There is no 
 objection in law to a contract of the kind, with its attendant 
 liabilities. See also Insurance Co. v. Railroad Co} The gen- 
 eral doctrine, then, as to transportation by connecting lines, 
 approved by this court, and also by a majority of the state 
 courts, amounts to this: that each road, confining itself to 
 its common-law liabilitj', is only bound, in the absence of a 
 special contract, to safely carry over its own route and safely 
 to deliver to the next connecting carrier, but that any one of 
 the companies may agree that over the whole route its liability 
 shall extend. In the absence of a special agreement to that 
 effect, such liability will not attach, and the agreement will 
 not be inferred from doubtful expressions or loose language, 
 but only from clear and satisfactory evidence."^ 
 
 * 104 U. S. 146. tination. This the defendants did, 
 - Myrick v. Railroad Co., 107 U. S. in the present case, and in so doing 
 103; also 111. Cent. R. Co. v. Carter, performed their full legal duty. If 
 165 111. 570, 36 L. R. A. 537. In the they can be held liable for a loss 
 case of Nutting V. Connecticut River that happens on any railroad be- 
 R. Co., 1 Gray, 503, the receipt was, sides their own, we know not what 
 " Received of E. Nutting for trans- is the limit of their liability. If 
 porting to New York nine boxes they are liable in this case, we do 
 of planes marked, etc." (naming the not see why they would not also be 
 goods). The boxes were delivered by liable, if the boxes had been marked 
 the initial company at the terminus for consignees in Chicago, and had 
 of their road to the N. H. etc. R. Co., been lost between that place and 
 and afterwards to the N. Y. etc. R. Detroit, on a road with which 
 Co., which extends, to the city of they had no more connection than 
 New York. A receipt was taken by they have with any railway in 
 the defendants for the freight from Europe. But the plaintiff seeks to 
 the first connecting carrier; the charge the defendants on the receipt 
 boxes were all delivered in New given by Clarke, their agent, as on 
 York except two which were lost a special contract that ths boxes 
 betvi'een Springfield and New Haven, should be safely carried the whole 
 The court say: " What, then, is the distance bet%veen Northampton and 
 obligation imposed on them by law, New York. We cannot -so construe 
 in the absence of any special con- the receipt. It merely states the 
 tract by them, when they receive fact that the boxes had been re- 
 goods at their depot in Northamp- ceived 'for transportation to New 
 ton which are marked with the York.' " The court further in the 
 names of consignees in the city of opinion discussed the case of Mus- 
 New York? In our judgment, that champ v. Lancaster, etc. R. Co., 8 
 obligation is nothing more than to M. & W. 431, and said: "We cannot 
 transport the goods safely to the end concur in that view of the law.' 
 of their road, and there deliver them (Citing cases.) Gray v. Jackson, 51 
 to the proper carriers, to be for- N. H. 9. 
 warded towards their ultimate des- 
 
 518 
 
CH. IX.J CONNECTING OAEEIEES. [§ 529. 
 
 § 529. The Englisli rule.— The English rule differs from 
 the rule just stated and discussed in this: that from the very 
 act of receiving, by the initial carrier, goods directed beyond 
 its own route, a contract for through shipment is implied, and 
 to exempt itself from liability beyond its own line the carrier 
 must obtain from the shipper an express contract relieving him 
 from such responsibility. This rule is said to be founded upon 
 the early case of Mtischamp v. Lancaster, etc. R. Go.^ but it 
 would seem that this case, from the opinion of Lord Abinger, 
 does not go to the extent of upholding the rule as stated. At 
 most it but decided that the accepting of the freight directed 
 to a point beyond the carrier's line is prima facie evidence of 
 a contract, and that expression of the court was hardly meant 
 to be as broad as the construction usually put upon it. The 
 court distinctly say that the whole question is one for the jury; 
 that the fact of the goods being marked to be sent beyond the 
 carrier's line, and that the charges for the entire distance were 
 stated, are to be considered ; and the court in summing up the 
 matter says: "The whole matter is therefore a question for 
 the jury to determine what the contract was on the evidence 
 before them. ... In cases like the present, particular cir- 
 cumstances might no doubt be adduced to rebut the inference 
 which, j^T'ma ./acz<;, must be made of the defendants having 
 undertaken to carry the goods the whole way. The taking 
 charge of the parcel is not put as conclusive evidence of the 
 contract sued on by the plaintiff ; it is only prima facie evi- 
 dence of it; and it is useful and reasonable for the benefit of 
 the public that it should be so considered. It is better that 
 those who undertake the carriage of parcels for their mutual 
 benefit should arrange matters of this kind inter se, and should 
 be taken each to have made the others their agents to carry 
 forward." 
 
 The court does not attempt to lay down any decisive prin- 
 ciple that is to govern in such like cases; at most it but decides 
 that it is a question of fact for the jury; that if not objected 
 to, if no proofs to the contrary are adduced, the accepting of 
 the goods under such circumstances would be prima facie 
 proof of the intention of the carrier to transport them to their 
 destination. But supposing the carrier had shown upon the 
 
 1 8 M. & W. 431. 
 519 
 
§ 530.] CAEEIEES. [part V 
 
 trial of other cases other circumstances, or had shown a con- 
 versation between the agent of the carrier and the shipper 
 Avhich would contradict the claimed presumption, and the jury- 
 had believed that there was no intention to assume responsi- 
 bility; under this opinion if the case had been so stated, a ver- 
 dict exactly opposite to the one under consideration could 
 have been sustained. So it may be concluded that the differ- 
 ence between the American and English rule is not so very 
 great, for in this country it is a question for the jury if an im- 
 plied contract is claimed. The difference, therefore, can be 
 said to be that under the English rule the receiving of the 
 goods directed to a point beyond the carrier's line is prima 
 facie evidence that the initial carrier had assumed the responsi- 
 bility of the entire transportation of the goods, but this pre- 
 sumption may be rebutted ; while in the United States the re; 
 ceipt of goods under such circumstances does not fix any such 
 liability upon the carrier, and does not even make out apriina 
 faoie case. 
 
 § 530. Decisions of states not harmonious. — The decisions 
 of the states are not entirely harmonious. Some of them have 
 adopted the English rule, so called, holding that where prop- 
 erty is delivered to the carrier for shipment directed to a des- 
 tination beyond its line, and the carrier accepts the goods 
 for shipment, it is prima facie evidence of an implied con- 
 tract that the initial carrier will assume liability beyond its 
 own line, and in order to be excused from such liability the 
 carrier must obtain a contract from the shipper to that effect;' 
 
 1 Wabash, etc. R. Co. v. Jaggerman, goods to carry, the carrier is bound 
 
 115 111.407. The court say: " It is a, by the common-law rule to carry 
 
 well settled doctrine in this state them, and if they are lost to account 
 
 that where a common carrier re- to the owner for their value. Chi- 
 
 ceives goods to carry, marked to a cago & N. W. R. Co. v. Montfort, 60 
 
 particular place beyond his line, he 111. 175; Erie Ry. Co. v. Wilcox, 84 
 
 is bound under an implied agree- III 2:J9; Wabash R. Co. v. Harris, 55 
 
 ment from the marks and directions 111. App. 159; Angle & Co. v. M. & 
 
 to carry to and deliver at that place, M. R. Co., 9 Iowa, 487. In Mulligan v. 
 
 although it be a place beyond his own HI. Cent. R, Co., 36 Iowa, 181, the court 
 
 line of carriage." 111. Cent. R. Co. v. say: "Upon this question there is a 
 
 Copeland. 24 111. 382; 111. Cent. R. Co. striking lack of uniformity in the 
 
 V. Frankenberg, 54 111. 88. If goods decisions. There are three views 
 
 are delivered to a common carrier which have been maintained by their 
 
 marked for a place beyond the ter- respective advocates, with perhaps 
 
 minus of its line audit receives the equal cogency of reasoning: First. 
 
 520 
 
CH. IX.] 
 
 CONNECTING CAREIEES. 
 
 [§ 530. 
 
 while others of the states, and a great majority of them, hold 
 to the rule that this does not create an implied contract, and 
 that the initial carrier does not become liable beyond its own 
 line except by a contract, either express or implied, assuming 
 such litlbility.i 
 
 That where carriers receive and re- 
 ceipt for goods consigned to a point 
 beyond the terminus of their road, 
 without any special contract respect' 
 ing the same, the agreement is one 
 for transportation the whole dis- 
 tance, upon which the first carrier 
 may be sued for a loss occurring 
 after the goods have passed beyond 
 the terminus of its road. The first 
 case which has generally been cited 
 as announcing this doctrine is Mus- 
 champ V. Lancaster R. Co., 8 M. & 
 W. 421, decided in the court of ex- 
 chequer in 1841, followed and re- 
 inforced in Collins v. Bristol & Exe- 
 ter R. Co.. 11 Exch. 790, and extended 
 even to goods booked beyond the 
 limits of England. . . . Second. 
 That where a carrier receives goods 
 marked for a particular designation 
 beyond the terminus of its line, and 
 does not expressly undertake to de- 
 liver them at the point designated, 
 the implied contract is only to trans 
 port over its own line, and forward, 
 according to the usual course of 
 business, from its terminus. See Mc- 
 Millan et al. V. M. S. & N. I. R. Co., 16 
 Mich. 130; Van Santvoord v. St. John, 
 6 Hill, 157; Farmers' & Mechanics' 
 Bank v. Champlain Transp. Co., 23 
 Vt. 186; Britnall v. Saratoga & White- 
 hall R Co., 33 id. 665; Hood v. N. Y. 
 &N. H. R. Co., 33 Conn. 1,502; Elmon 
 V. Naugatuck R. Cd, 23 id. 457 ; Nauga- 
 tuck R. Co. V. Waterbury Button Co., 
 24 id. 468; Nutting v. Connecticut 
 River R. Co., 1 Gray, 503; Burroughs 
 V. Norwich & W. R. Co., 100 Mass. 26; 
 Darling v. Railroad Co.. 11 Allen, 295 ; 
 Root V. Great Western R. Co., 45 N. Y. 
 524; Jemison v. Camden & Amboy 
 R. Co., 4 Am. Law Reg 334; United 
 
 States Exp. Co. v. Rush et al., 24 Ind. 
 403; Pennsylvania Cent. R. Co. v. 
 Schwarzenberger, 45 Pa. St. 208; 
 Rome R. Co. v. Sullivan, Cabot & Co., 
 25 Ga. 238. Third. That the mere ac- 
 ceptance of goods by a common car- 
 rier marked to a designation beyond 
 the terminus of its line as a matter 
 of law imports no absolute undertak- 
 ing upon the part of the carrier be- 
 yond the end of its road, but is a 
 matter .of evidence to be submitted 
 to the jury, from which, in connec- 
 tion with other evidence produced, 
 they are to determine, as a question 
 of fact, the real engagement entered 
 into. This position was very ably 
 maintained in a recent and elaborate 
 opinion of the supreme court of New 
 Hampshire, reviewing almost the 
 whole current of decisions from Mus- 
 champ V. Lancaster Ry. Co., 8 M. & 
 W. 421, down to the present period. 
 See Gray v. Jackson, 51 N. H. 9. 
 The question is not an open one in 
 this state. In Angle v. M. M. Ry. 
 Co., 9 Iowa, 487, the rule was settled 
 as it is understood to exist in Eng- 
 land, and it was held that the accept- 
 ance by a carrier of goods marked to 
 a designation beyond the terminus 
 of its road creates a prima facie lia- 
 bility to transport to and deliver at 
 that point, which may be modified 
 by proof of a different usage known 
 to the shipper at the time of making 
 the consignment. The court did not 
 err, therefore, in the first branch of 
 the foregoing instruction, as applied 
 to the evidence introduced, there 
 being no proof that plaintifif knew of 
 a usage of the defendant not to trans- 
 port freight beyond Cairo." 
 
 1 Grover & Baker Co.v.Railroad Co., 
 
 521 
 
§ 531.] OAEEIEES. [PAET 7, 
 
 AVhere the contract is not ia writing, the question as to 
 whether the initial carrier is to carry the freight beyond its 
 own line, assuming the liability incident to the carriage, seems 
 by the weight of authority to be a subject for proof; and where 
 in an action against a carrier to recover for the loss of plaint- 
 iff's horses by fire while on the line of a connecting carrier, it 
 was claimed that defendant only contracted for carriage to the 
 end of its line, but it appeared that plaintiff had for a number 
 of years made like contracts with defendant on which stock 
 had been carried through to the destination, and that the con- 
 tract in question recited that the stock was received for ship- 
 ment to the point of final destination, and the charges fixed by 
 defendant were for through carriage, it was held sufficient to 
 show a contract of through carriage.' 
 
 § 531. Some conditious and relations from which contract 
 for through shipment may be implied. — In the absence of an 
 express contract for through shipment on the part of the ini- 
 tial carrier, or for shipment and liability over its own line only, 
 and for delivery to the succeeding carrier, the contract for 
 through shipment and liability of the initial carrier, if it exists 
 at all, must be implied; and, as we have seen, must in all cases 
 depend upon facts and circumstances, and is a question for the 
 jury. While it is difficult to conceive of such a contract being 
 held to exist as matter of law, the courts have freely sustained 
 judgments based upon evidence of facts which imply that such 
 a contract existed. 
 
 Where the carrier accepted a carload of freight for trans- 
 portation and gave a receipt stating it was consigned to a des- 
 ignated point and contained the figures "62.20," the point 
 named being beyond the defendant's line, and there was evi- 
 
 70 Mo. 672: Knott v. Railroad Co., 98 carrier from the usual route." Harris 
 
 N. C. 73; Detroit, etc. R. Co. v. Mc- v. Grand Trunk R. Co., 15 R L 371,5 
 
 Kensie, 43 Mich. 609; Rickerson v. Atl. 305; Hunter v. S. Pac. R. Co., 76 
 
 Railroad Co., 67 Mich. 110; Merrick Tex. 195; McConnell v. Norfolk & 
 
 V. Railroad Co., 107 U. S. 103. See W. R. Co., 86 Va. 248; Ortt v. Minne- 
 
 cases, Hutch, on Carriers, sees. 148, apolis, etc. R. Co., 86Minn. 396;Craw- 
 
 149, note. " When a carrier receives ford v. Southern R. Ass'n, 51 Miss, 
 
 goods consigned beyond its line 222. 
 
 within a special contract, it is liable ^ Ogdensburg R. Co. v. Pratt, 89 
 
 only to carry safely to the end of its U. S. (22 Wall.) 123. 
 own line and so deliver to the next 
 
 523 
 
OH. IX.J CONNECTING CAEEIEES. [§ 531. 
 
 dence that "62.20" was the freight for the entire distance, 
 prorated among all the connecting companies, this was held to 
 constitute a through contract of shipment.' 
 
 Where it appeared that the plaintiff had for many years 
 been in the habit of transporting horses over defendant's road 
 to Boston, which was beyond the defendant's line; that the 
 station agent at the point of shipment had been such agent for 
 five or six years, and that nearly a week before he had engaged 
 to give plaintiff two good cars for the final shipment to carry 
 the horses to Boston, the place of destination, and that the 
 oars furnished by the station agent of the defendant had 
 always gone over the connecting line and delivered the freight 
 in Boston; that the arrangements made were recognized by 
 the company I that the office of the agent was in the railroad 
 company's freight office; that the plaintiff paid the freight 
 through, sometimes at the point of making the shipment and 
 sometimes at the destination; that on the occasion in ques- 
 tion he agreed with the defendant's station agent upon the 
 price through to destination; that a way-bill was made out 
 for the freight and cars through at the price agreed upon ; 
 that the price agreed upon was not paid, but might have been, — 
 in such case the court say : "We see no sound objection to the 
 admission of this way-bill as evidence. If a written contract, 
 it was not only evidence, but the best evidence of what the 
 contract was. It was exhibited to Pratt (the plaintiff), before 
 the cars were started, as a part of the transaction. If not a 
 contract, it was an act done and a declaration made by the 
 agent in the very act of transacting the business and as a part 
 of it, which brought it within the principle of the res gestm. 
 This evidence shows that the oral agreement was to carry his 
 horses to Boston, not to carry to Rouse's Point and thence to 
 forward to Boston, but to carry as well and as freely over the 
 Vermont and Massachusetts roads as for the Ogdensburg road. 
 Again, a specified price was agreed upon for transportation 
 over the whole route. This was in accordance with the prac- 
 tice, and whether paid at Pottsdam or at Boston was unim- 
 portant. This practice had been continued for years, and the 
 jury had the right to hold the contract to be the same without 
 
 ' Cent. R. & Banking Co. v. Ga. Fruit & Vegetable Exchange, 91 Ga. 
 389, 17 S. E. 904. 
 
 523 
 
§§ 532, 533.] CAKEIEES. [PAET V. 
 
 reference to prepayment or postpayraent. The jury were jus- 
 tified in inferring that, where a carrier fixes a price for trans- 
 portation over the whole route, he makes the entire con- 
 tract his own. One who carries simply over his own line and 
 thence forwards to other lines would ordinarily, the jury may 
 say, make or collect his own charges and leave the remaining 
 charges to be collected by those performing the remaining serv- 
 ices. Receipt of the entire pay affords a presumption of an 
 entire contract."^ 
 
 And so it may be said that the evidences of joint liability 
 are a through bill of lading; through charges for the goods car- 
 ried ; the goods shipped so as to be carried through without 
 change of cars ; a sharing of profit and loss with connecting 
 companies; the holding out to the public by the initial carrier 
 that it will be carried through to destination beyond its own 
 line. These, with other circumstances that might be enumerated, 
 also evidence an intention upon the part of the initial carrier 
 to contract for through shipment.^ 
 
 § 532. Who are connecting carriers. — The term "connect- 
 ing carrier " is used in contradistinction to the term " initial car- 
 rier " or " first carrier." It may be said, then, that a connecting 
 carrier is a carrier between the initial carrier's line and the 
 destination of the goods, and so there may be one or more con- 
 necting carriers.' 
 
 § 533. The relation between the shipper, the initial car- 
 rier and the connecting carrier. — The relation between the 
 shipper, the initial carrier and the connecting carrier depends 
 entirely upon the contract for shipment. Was it a contract for 
 through shipment by the initial carrier, or simply for shipment 
 over its line and delivery to the connecting carrier? If the 
 contract with the initial carrier was for shipment of the goods 
 over connecting lines through to their destination, then, in that 
 
 1 Railroad Co. v. Pratt, 23 Wall. 133, distance, or received freight for the 
 
 132. In Root V. Great Western R. Co., entire distance, or other ciroum- 
 
 4.J N. Y. 534, in speaking of the con- stances indicating an understanding 
 
 tract to transport as a common car- that it was to carry through.'' 
 rier over other lines, the court say: ^ International, etc. Co. v. Tisdale^ 
 
 "Such an undertaking may be es- 4 L. R. A. 545: Shewalter v. Mo.Pac. 
 
 tablished by express contract, or by R. Co., 84 Mo. App. 589. 
 showing that the company held ^ Mansen v. Jacobs, 13 Mo. App. 
 
 itself out as a carrier for the entire 125, 93 Mo. 331. 
 
 534 
 
Ca. IX.J CONNECTING CAEEIEES. [§ 5o4. 
 
 case, the connecting carriers are but the agents or servants of 
 the initial carrier; they transport the goods for the initial car- 
 rier. But even if this be so, the shipper, as we shall see, may 
 hold the connecting carriers responsible for any loss or injury 
 to the goods that results from their negligence or failure to 
 deliver the property in as good condition as when received by 
 them; or the shipper may hold the initial carrier for damage 
 or loss wherever it may happen during transportation under 
 the contract of shipment. If the contract with the initial car- 
 rier was simply to ship the goods over its own line and deliver 
 them to the connecting carrier, then the initial carrier is the 
 agent of the shipper in the matter of delivering the freight to 
 the connecting carrier, and, if there is more than one, the first 
 connecting carrier becomes the agent of the shipper for the 
 delivery of the goods to the second carrier, and so on to the 
 end of the shipment. And so each shipment or delivery to a 
 connecting carrier is in fact a shipment or delivery by the 
 shipper himself through his agent; and when the initial carrier 
 in such case, or the connecting carrier, has delivered the goods 
 in as good condition as when received to the succeeding car- 
 rier, or the consignee, and without delay, the carrier thus de- 
 livering the property is relieved from further responsibility.' 
 § 534. The duty of the connecting carrier. — The duties 
 devolving upon the connecting carrier are the same as those 
 incumbent upon the initial carrier. He is bound to receive the 
 goods of all who apply to him for shipment, if in the line of 
 his business as a carrier, and it makes no difference whether 
 the goods are presented by an initial carrier, who has become 
 liable for a contract for through carriage of the property, or 
 by the initial or connecting carrier as the agent of the shipper; 
 his liability is the same as though he received the goods from 
 the shipper direct; and if he would relieve himself of the ex- 
 traordinary liability he must do so by contract at the time of 
 receiving the property for shipment. It is the duty of the con- 
 necting carrier to carry the goods safely over his line and de- 
 liver them to the next connecting carrier, or to the consignee 
 if they have arrived at their destination. For any delay upon 
 
 In M. H. O, R. Co. V. Kirkwood, signee in transporting them to an- 
 te Mich. 51, it was held "a carrier of other carrier, and not as 'the latter's 
 goods acts as the agent of the con- agent." 
 
§ 53i.] 
 
 CAEEIEES. 
 
 [part 
 
 his own line, or in delivery to the next connecting carrier, he 
 is liable. Simply unloading the goods upon the dock orplatform, 
 or putting them into a warehouse at the end of his line, is not 
 a delivery to a connecting carrier that will relieve him from 
 responsibility.' Nor can the initial or connecting carrier re- 
 lieve himself from liability by delivering the goods or forward- 
 ing them by some other connecting carrier than the one desis;- 
 nated and stipulated for in the contract of shipment.^ There 
 must be an actual delivery of the goods, or an offer to deliver 
 to the succeeding carrier, and if the succeeding carrier refuses 
 to accept them and transport them over his line he must at 
 once report that fact to the owner, or person, or company from 
 whom he received the goods, and if delay is occasioned, or loss 
 or damage is the result of the failure to so report while the 
 goods are thus held, because of the refusal to receive them as 
 aforesaid by the succeeding carrier, the carrier will be liable as 
 a warehouseman.' Nor will delivery of the goods to the con- 
 
 1 1 Mich. Dig., sec. 44. "A common 
 carrier's liability for freight that is 
 to be transferred to another carrier 
 continues until it is so transferred, 
 or at least until such notification 
 has been given to the otlier carrier 
 as amounts to a tender of delivery. 
 And if the first carrier merely stores 
 the freight in a warehouse of its own, 
 where the other is in the habit of 
 taking it at its convenience, and the 
 freight while so stored is destroyed, 
 the first carrier is answerable for its 
 value." Condon v. M. H. etc. R. Co., 
 55 Jlich. 218. 
 
 ^Strong v. Certain Quantity of 
 Wheat, Fed. Cases No. 13,541. " Non- 
 performance of the carrier's contract 
 to transport live-stock to an extraor. 
 dinary terminal point is not excused 
 by the fact that the connecting line 
 over which the shipment was to be 
 carried was prevented by a mob from 
 doing business." Where goods are 
 not shipped by the consignor in ac- 
 cordance with the directions of the 
 buyer, and are deposited at the end 
 of the carrier's road and he refuses 
 to deliver them to the connecting 
 
 line on the ground that the liability 
 of the latter is greater than the ex- 
 emptions contained in the original 
 contract, and while on deposit they 
 are destroyed by fire, without notice 
 given to the consignor, the carrier is 
 liable for the loss. Rawson v. Holland, 
 59 N. Y. 611, 18 Am. Rep a94. In Mem- 
 phis, etc. R. Co. V. Stockard, 58 Tenn. 
 (11 Heisk.) 568, it was held a railroad 
 company is liable for its failure to 
 deliver freight at a place beyond its 
 own line and on the line of the oon- 
 necting carrier, in the absence of a 
 special contract limiting its liability, 
 though the connecting carrier re- 
 fuses to receive the freight and ad- 
 vance freight charges due the first 
 carrier. Johnson v. N. Y. Cent. R. Co., 
 39 How. Pr. 127; East Tena etc. R 
 Co. V. Nelson, 41 Tenn. '(1 Caldw.) 272. 
 3 In American Sugar Refining Co. 
 V. McGhee, 96 Ga. 27, it was held that 
 " where goods are shipped over the 
 lines of connecting railways to a 
 consignee designated in the bill of 
 lading, and on arrival at designation 
 the receivers of the railway company 
 which completed the transportation 
 
 526 
 
CH. IX.j CONNECTING CAEEIERS. [§ 535. 
 
 necting carrier be alone sufBcient to relieve either the initial 
 carrier or succeeding carrier who delivers them from liability, if 
 loss or injury occurs by reason of a deviation from the initial 
 contract, if the initial or connecting carrier who thus delivers 
 the goods fails to inform the connecting carrier fully as to the 
 terms of the shipment; so it may be said to be the duty of the 
 carrier who makes such deliver3' to inform the connecting car- 
 rier at the sanie time fully as to the terms of the contract of 
 shipment.' 
 
 § 535, Authority to make contract binding connecting 
 carriers. — The business of the common carrier is generally 
 carried on through agents, and, as we have seen, the initial 
 carrier who makes a through contract for rates and carriage 
 beyond its own line, especially where its liability is limited to 
 its own line, and assumes liability only to deliver the goods 
 to the connecting carrier, acts in the matter of making the 
 through rate or the time for transporting the goods, or as to 
 any other stipulation, as the agent of the connecting carrier. 
 But as the business of making the shipment, at the point where 
 the goods are shipped, is transacted usually, if not always, by 
 a station agent or freight agent of the initial carrier, the ques- 
 tion has been raised. Has such an agent of the initial carrier 
 authority to make a contract that will be binding upon the 
 connecting carrier ? The initial carrier, or its general agent, 
 it is said, may make such a contract, especially where there 
 are shipping arrangements between the roads; but how about 
 this agent of the agent of the connecting carrier making such 
 a contract — the station agent of the initial carrier binding 
 the connecting carrier ? 
 It would seem, on principle, that the station agent, even if 
 
 tendered delivery to that consignee > And in Lesinski v. G. W. D. Co., 
 
 and he declined to receive the goods, 10 Mo. App. 134, it was held that 
 
 the liability of the receivers as com- where a carrier agreed after trans- 
 
 mon carriers thereupon ceased, and porting goods to deliver them to an- 
 
 they became liable as warehousemen other carrier, and the latter refused 
 
 only, and as such were chargeable them, the former did not fulfill its 
 
 with the duty of notifying the con- duty by storing the goods, but that 
 
 signer of the consignee's refusal to notice should have been sent either 
 
 accept the goods, and with the fur- to consignor or consignee, 
 ther duty of holding the same sub- 
 ject to the order of the consignor." 
 
 527 
 
§ 5 35. J CAEEIEES. [PAET V, 
 
 he be held as acting as a sub-agent of the connecting carrier, 
 would be able to bind the connecting carrier upon the ground 
 that the making of the contract to carry the goods, and the 
 making of the rate, or the making of any other stipulation, if 
 not extraordinary and unusual, must be held to be simply an 
 incident to the business of making the shipment, and the law 
 will presume that a principal must expect that this kind of 
 work will be done by sub-agents appointed by the initial car- 
 rier; that because of the modern and usual manner of doino' 
 business, which is well understood by connecting carriers and 
 by the public, it may be said that the connecting carrier knows 
 that it is necessary, in order to transact the business, that the 
 initial carrier shall employ agents to perform this duty at the 
 several points of shipment. 
 
 There is another principle of the law of agency very prona- 
 inently in view that may be invoked in this class of cases. The 
 general public have rights in the matter. It is generally known, 
 in fact it is a matter of common knowledge, that railroad com- 
 panies and other carriers, whether initial or connecting car- 
 riers, are anxious to carry the goods that are being shipped. 
 Often they have special agents operating at places off their 
 line of road soliciting the carriage of the freight that is offered. 
 Shippers know that ordinarily the arrangements for shipping 
 are made by the agents at the several stations; that through 
 shipments made by them are accepted by connecting roads, 
 and the goods carried to their destination. So it can be said, 
 and there can be no doubt, that because of the general course of 
 the business, so far as the public and the general understanding 
 of the shippers are concerned, these agents have at least ap- 
 parent authority to act not only for their own company, but 
 for connecting lines, and public policy will not allow a connect- 
 ing carrier to defend upon the ground that such agents do not 
 have authority to act unless the contract made by them is un- 
 usual or fraudulent. The public's interest must be subserved, 
 and the law will demand that in this business the usual and 
 generally understood procedure shall be binding upon the 
 carriers. 
 
 In Rudell et al. v. Ogdensburg Transit Co} the court, quoting 
 from Lawson on Carriers, say : "As common carriers, especially 
 
 1117 Mich. 568; Lawson, Con. of Carriers, § 229. 
 538 
 
OH. IX.] CONNECTING CAEEIEES. [§ 536. 
 
 at the present day, transact the greater part, if not all, of their 
 business with the public through agents and servants, it is 
 plain that the public have a right to assume that they are au- 
 thorized to do whatever they attempt to do." The court fur- 
 ther say : " This rule does not include contracts so unusual and 
 extraordinary that they cannot reasonably be included within 
 the general authority." 
 
 §636. Actions for loss or damage. — The question, against 
 which of the carriers shall the owner of the goods bring 
 his action, in case of loss or injury, where the shipment has 
 been over several lines, has been very much discussed both in 
 this country and in England, and there is by no means har- 
 mony among the decisions upon this question. 
 
 The decisions seem to group themselves under three distinct 
 holdings. First, that where goods have been injured, the con- 
 signee or consignor may bring his action against the initial 
 carrier and hold him liable for the loss or injury. In the absence 
 of an express contract the English courts hold to this theory, 
 maintaining that there is a presumption that the first carrier is 
 liable, and this even though it refused to take pay for continuous 
 shipment or for any shipment beyond its own road, holding 
 that the acceptance of the goods and the shipment of them to 
 their destination, without positively limiting his liability by 
 contract, w&% prima facie an undertaking to carry them to their 
 destination. Second. A second class of authorities holds that 
 the last carrier is liable, and that the action may be brought 
 against him ; this being upon the presumption that the goods 
 must have been received in good order when they came to the 
 line of the last carrier. As where goods in a box were shipped 
 by three successive carriers, and when delivered to the con- 
 signee, although there were no external indications of the fact, 
 the box was found to have been opened and certain goods ab- 
 stracted therefrom, it was held " that the jury may presume, 
 in the absence of evidence to the contrary, that the box re- 
 mained unopened until it came into the possession of the last 
 carrier, and that the loss occurred through its fault." The 
 court say: "As the common carrier next in order, the defend- 
 ant was bound to receive and transport the boxes when tend- 
 ered. It was bound to receive them in the condition in which 
 they were. It had no means of investigation or inquiry into 
 34 529 
 
§ 536.] CAEEIEES. [part V. 
 
 their contents. It had no right to open the boxes or examine 
 what they contained, and, if it had, could not have detected the 
 loss by such examination, and so have refused to receive and 
 carry. It must take the boxes as they were, with no external 
 signs or appearances of breaking or injury, and nothing to 
 give warning that the cloths had been previously abstracted 
 or removed, and carry them forward to their place of destina- 
 tion. Under these circumstances, the rule or presumption of 
 law which makes the defendant liable for the value of the 
 goods, unless (what seems quite impossible to be done) it shows 
 where the loss actually took place, must be supported by most 
 clear and satisfactory reasons of policy or necessity, or other- 
 wise it should be rejected. It must be shown that greater in- 
 justice or more certain injustice will ensue from its rejection 
 than will or may follow from its adoption. I have been, as I 
 have said, in very considerable doubt; but examination con- 
 vinces me that there are such reasons, and that both principle 
 and authority sustain the presumption. The very uncertainty 
 which exists as to when or where the cloths were taken out, or 
 in whose custody the boxes then were, and the difficulty or im- 
 possibility of ever ascertaining those facts, make the presump- 
 tion absolutely necessary. What is difficult or impossible for 
 the defendant to find out with respect to the breaking and 
 larceny is still more difficult or impossible for the plaintiffs. 
 The defendant possesses means and facilities which the plaint- 
 iffs do not. To say that the plaintiffs shall not recover be- 
 cause they have not ascertained and proved that the cloths 
 were taken while the boxes were in the custody of the defend- 
 ant, is, in effect, to say that they are without remedy in the 
 law for their loss. If required to make such proof to estab- 
 lish a cause of action against this company, then the same 
 proof would be required in a suit against either of the others, 
 and' the plaintiff could not recover against any, although it is 
 certain that one of them is or should be responsible for the 
 loss. If the plaintiffs knew or could prove in whose custody 
 the boxes were when the cloths were taken, there would be 
 no hardship, perhaps, in requiring them to sue that company. 
 But the plaintiffs do not know, nor is it possible for them to 
 ascertain this, and, unless aided by presumption, they are with- 
 out remedy, which is a positive and certain injustice. I know 
 
 530 
 
OH. IX.J 
 
 CONNECTING CARRIERS. 
 
 [§ 536. 
 
 of no more reasonable or proper presumption to apply than 
 that here invoked." ' Third. A third class of decisions holds 
 that there is no presumption as to where the goods were lost 
 or injured, but that it is a subject of proof, and that the plaint- 
 iff in order to recover must show which of the carriers was lia- 
 ble for the injury. 
 
 A case that is often quoted and is well reasoned out is the 
 case of M. H. dc 0. Go. v. KirTiwood^ the court holding that 
 the plaintiff is bound to show affirmatively that the goods were 
 delivered in good order to the carrier whom he seeks to make 
 liable for the injury; for example, if the last carrier is sued, 
 that the plaintiff must show that he received the goods in good 
 order, and that there is no presumption that would relieve the 
 plaintiff from such proof. In the case under discussion the 
 goods were shipped in New York, turned over at Buffalo to 
 the Lake Superior Transit Company, and delivered by the 
 transit company at Marquette to the railroad company, the last 
 
 ' Laughlin et al. v. Chicago & N. W. 
 Ry. Co., 28 Wis. 304, 310. Tlie court 
 further say: "The difificulties, nay 
 even impossibilities, by wliich owners 
 would be beset if put to the task 
 of ascertaining where their pacli- 
 ages or boxes were brolien open 
 and contents plundered when in 
 transit over our long routes, are well 
 known, and are illustrated by the 
 facts in this case. They are also 
 portrayed by Chief Justice Parley in 
 Lock Co. V. Railroad Co. (Sup. Ct. 
 N. H.), 10 Am. Law Reg. (N. S.) 360, 
 263; by Waite, C. J., in Elmore v. 
 Naugatuck R Co., 23 Conn. 483; and 
 by Smith, J., in McDonald v. Western 
 E. Co., 34 N. Y. 501, 503. In the first 
 named case the chief justice says: 
 'Any rule which should have the 
 effect to defeat or embarrass the 
 owner's remedy would be in direct 
 conflict with the principles and the 
 whole policy of the common law.' I 
 am of the same opinion. I think 
 there is no time to relax the strin- 
 gent and wholesome rules of the 
 common law, and must hold that the 
 
 doctrine of presumption was rightly 
 applied by the court below in aid of 
 the plaintiffs in this case." Faison v. 
 Railroad Co., 69 Miss. 569; Railroad 
 Co. V. Brewing Co., 96 Tenn. 677, 
 holding that there is a presumption 
 that when the goods are received in 
 good order they ouglit to be in good 
 order to the last carrier. Evans v. 
 Atlanta, etc. R. Co., 56 Ga. 498. 
 Goods received by a railroad com- 
 pany and delivered over its own 
 road are presumed to have been re- 
 ceived in good order if nothing ap- 
 pears to the contrary. Cent. etc. R. 
 Co. V. Bayer, 91 Ga. 115; Forester v. 
 Railroad Co., 93 Ga. 699, 96 Ga. 43S. 
 "Presumed that goods reached last 
 carrier in as good condition as when 
 delivered to first carrier." Shriver 
 V. Railroad Co., 24 Minn. 506, 34 Am. 
 Rep. 353; Leo v. Railroad Co., 30 
 Minn. 438; Flynn v. Railroad Co., 43 
 Mo. App. 434; Smith v. N. Y. Cent. 
 R. Co., 43 Barb. 225, 41 N. Y. 630; 
 Dixon V. Railroad Co., 74 N. C. 538; 
 Railroad Co. v. Pratt, 32 Wall. 133. 
 2M45ioh. 51. 
 
 531 
 
§ 536.] CAEEIEES. [PAET T. 
 
 carrier, against whom the action was brought. The court 
 below charged the jury that if the goods were delivered iti 
 IsTew York in good order to the first carrier, they would have 
 a right to infer that they continued so when received by de- 
 fendants, unless evidence was given which showed the contrary. 
 The court held this charge to be erroneous, and that the 
 plaintiff was bound to show affirmatively that the goods were 
 delivered in good order at Marquette to the defendants. The 
 court say : " We think this rule is just, and are not at all dis- 
 posed to depart from it. A carrier has no means in a case like 
 this of opening packages and examining their contents. Unless 
 there is some outward token which is suspicious, he may and 
 must take the articles and forward them on the usual terms. 
 He is bound in law to deliver them in the condition in which 
 he receives them. But there can be no further responsibility; 
 and any rule of law which would make him responsible actu- 
 ally or presumptively for the conduct of previous independent 
 carriers would be grossly unfair, and subject him to losses 
 against which he could have no protection. He has nothing 
 to do with any of the previous dealings with the property, and 
 no means of informing himself about them. We cannot see 
 how this case is different from what it would have been if the 
 plaintiffs themselves had delivered the boxes to the company 
 at Marquette. In law the transit company acted merely as 
 plaintiffs' agent in turning them over, and cannot be treated as 
 representing the Marquette Railroad Company for any purpose 
 without reversing the whole order of business. . . . The 
 presumption that things remain unchanged applies in such a 
 case as the present just as forcibly backward as forward. It 
 may quite as reasonably be presumed that the goods were de- 
 livered at ITegaunee and Ishpeming, in the condition in which 
 they were received at Marquette, as that they came to Mar- 
 quette as they left New York. The goods were certainly dam- 
 aged when they reached their destination. To assume that 
 they were damaged after they left Marquette, and not on any 
 of their previous removals, is to make a very arbitrary assump- 
 tion which has no more foundation in probability than any 
 other. If it were worth while to enlarge on -what is confess- 
 edly a presumption not resting on any sure foundation in ex- 
 perience, it might very well be questioned whether such a 
 
 532 
 
OH. IX.] OONNEOTING OAEEIKKS. [§ 536. 
 
 presumption is admissible at all as applied to things, the posi- 
 tion of which does not remain either fixed in place or free from 
 disturbance by human agencies. But we need not enlarge on 
 this because the nature of the suit itself raises different pre- 
 sumptions which are well recognized. This suit is based on 
 the negligence of the carrier. It can only be maintained on 
 the theory that the carrier or its servants did not properly care 
 for or handle the goods. There is no rule better established 
 or more righteous than the rule that any one who claims a 
 right to damages for negligence must prove it. The presump- 
 tion that a party sued has done no wrong must prevail till 
 wrong is shown. A carrier's obligation to carry safely what 
 he received safely is independent of care or negligence. But 
 in the absence of proof that there was property delivered to 
 him, or safely delivered to him, any presumption that he re- 
 ceived it is one which goes beyond and behind the duty of a 
 carrier and enters into the origin and making of the contract. 
 Until such property comes into his hands there is nothing for 
 a contract to act upon, and the contract is not proved until 
 that is proved." ^ 
 
 It would seem, however, that the great weight of authority 
 in the United States is, that the plaintiff may bring his action 
 against the last carrier, and that the court may presume that 
 the goods were received by him in good condition, and that the 
 burden of proving otherwise is upon the carrier. 
 
 1 Gilbert v. Dale, 5 Adol. & EL 643 ; 166 Mass. 154; Orr v. Chicago, etc. Co., 
 Midland Ey. Co. v. Bromley, 17 Q. B. 21 Mo. App. 333; Cavallo v. Tex* Pac. 
 372; Farmington Co. v. Railroad Co., R. Co., 43 Pac. 91& 
 
 533 
 
CHAPTEE X. 
 
 COMPENSATION, AND HEREIN OF "DISCRIMINATION AND LIEN 
 OF THE CARRIER. 
 
 Law forbidding applies to all 
 branches of carrier's busi- 
 ness. 
 
 Relates to facilities for 
 
 shipment. 
 
 The discrimination that is for- 
 bidden. 
 
 Regulation by statute of 
 
 states. 
 
 The interstate commerce act 
 
 Similar to the lien of the 
 bailee — Special, not gen- 
 eral. 
 
 When does the lien attach. 
 
 When shipment made by one 
 ■without authority. 
 
 For what charges will the lien 
 attach. 
 
 The contract for shipment 
 must be fulfilled. 
 
 The lien how lost, satisfied or 
 discharged. 
 
 — Lien satisfied. 
 
 — Lien discharged. 
 
 § 537. Compensation. — Because of the contract creating 
 the relation the carrier has a right to compensation for carry- 
 ing the goods, and may, as a condition precedent to receiving 
 them for carriage, demand that he be paid reasonable charges 
 for transportation ; but the right to prepayment is waived if 
 not so demanded. The compensation for carrying the goods 
 may be collected by the carrier by an action against the party 
 liable for the payment, but in such an action the shipper or 
 consignee (defendant) may recoup for any failure upon the 
 part of the carrier which has resulted in damage to the goods, 
 or for failure to deliver as contracted, and offset such dam- 
 
 534 
 
 §537. 
 
 Compensation. 
 
 § 548. 
 
 538. 
 
 Amount depends generally on 
 goods delivered. 
 
 
 539. 
 
 Carrier's special security in 
 and right to possession of 
 
 549. 
 
 
 goods. 
 
 550. 
 
 540. 
 
 Carrier may protect his 
 
 
 
 possession. 
 
 551. 
 
 541. 
 
 The carrier may insure 
 
 
 
 the goods. 
 
 552. 
 
 542. 
 
 When can the carrier 
 
 sell the goods. 
 
 553. 
 
 543. 
 
 The amount charged. 
 
 
 544. 
 
 Right of carrier to collect its 
 
 554. 
 
 
 advances to connecting car- 
 
 555. 
 
 
 riers. 
 
 
 545. 
 
 Who is liable to the carrier 
 for the freight. 
 
 556. 
 
 546. 
 
 Where the freight is only car- 
 ried a part of the distance 
 
 557. 
 
 
 contracted for — Pro rata 
 
 558. 
 
 
 itineris. 
 
 
 547. 
 
 Where goods shipped against 
 
 559. 
 
 
 the will of the owner, as by 
 
 560. 
 
 « 
 
 one not having the right to 
 ship. 
 
 
CH. X.] COMPENSATION AND LIEN OF OAEEIEE. [§ 538. 
 
 ages against the carrier's claim. And he may assert and have 
 the same right and privilege against the claim of the carrier 
 for damages where there is no special contract, for unreason- 
 able delay, or for injury or damage.^ 
 
 § 538. Amount depends generally on goods delivered. — 
 As a general rule, and with but very few exceptions, it may 
 be said that the carrier can only collect compensation for the 
 carrying of the goods actuallj' delivered to the consignee ; but 
 it will be seen that this rule should not be universal or with- 
 out exception, for it may be that he has been prevented from 
 making full delivery of the goods because of some fault of the 
 shipper or the consignee. And where the carrier had carried 
 a cargo of coal to the place of destination and offered to de- 
 liver it, but the owner Avas not ready to receive it, and it was 
 left on board the plaintiff's vessel, which, after waiting several 
 days for an opportunity to discharge her cargo, was carried 
 away by a freshet and her cargo lost overboard, so that it 
 could not be delivered to the owner, it was held that the 
 plaintiff's contract as a carrier had been performed, and he 
 was entitled to recover the stipulated freight, being liable 
 only for the want of ordinary care after the offer to deliver.^ 
 
 But where the carrier was prevented from delivering the 
 freight, which by law he was bound to deliver, because of the 
 act of God, it has been held that even in such case he could 
 only recover for the freight actually delivered, the court say- 
 ing: "He (the carrier) was therefore excused from delivering 
 that part of the cargo which was destroyed by inevitable ne- 
 cessity, but he could recover freight only for that portion de- 
 livered. As to the freight destroyed, the owner must lose the 
 goods and the carrier the freight." ' 
 
 'Hutchinson on Carriers, sec. 443; of all of the property shipped, the 
 The Success, 7 Blatch. 551. In Hins- delivery of the whole will be a con- 
 dell V. Weed, 5 Denio, 172, where the dition precedent to the recovery of 
 carrier contracted to carry flour from the freight against the consignee, 
 Buffalo to Albany, and in the course though he accept and receive a part, 
 of the trip he lost part of the flour and that the consignee might re- 
 and sold his boat, the remainder of coup the damages on account of the 
 the cargo being on hand, it was property not delivered in the action 
 held: "If the directions of the con- against him for freight." 
 signers to the consignee, as contained ^ciandaniel v. Tuckerman, 17 
 in or annexed to the bill of lading. Barb. 184. 
 
 be to pay freight only on the delivery ^ Price v. Hartshorn, 44 Barb. 655; 
 
 535 
 
§§ 539, 5i0.] OAEEIEES. [PAET V. 
 
 Where a carrier carried goods to a particular place under 
 a contract, but, before the owner had an opportunity to receive 
 them, a part of them were lost without the fault of the carrier, 
 it was held that the carrier was not entitled to any compensa- 
 tion for the carrying of the goods lost.^ And where by con- 
 tract the shipper assumed all risk and loss of its property by 
 fire while in charge of the carrier, it was held that the carrier 
 was not entitled to recover freight or property destroyed by 
 fire before delivery to the consignee.^ 
 
 § 539. Carrier's special security in and right to possession 
 of goods. — The carrier, it will be remembered, is the bailee of 
 the goods delivered to him for transportation ; and more than 
 that, having accepted them for carriage, and having performed 
 service in that respect, he has a special interest in the goods at 
 least to the extent of his service, and so has a right to the pos- 
 session of the property, and while so possessing it as a carrier 
 and bailee may defend his possession against any one who 
 undertakes to deprive him of it in violation of his bailment 
 rights, even against the owner himself if he should take it 
 from him without discharging the carrier's lien for compen- 
 sation, or in violation of his rights under his contract for car- 
 riage.' 
 
 § 510. Carrier may protect his possession.— The car- 
 rier is, during the time the goods are in his possession as car- 
 rier, subrogated to all the rights of the owner so far as caring 
 for the goods and having the right to defend the possession of 
 them;'' and so if the goods are stolen or injured the law will 
 recognize this right in the carrier to protect them. If stolen, 
 ownership of the goods by the carrier may be alleged in the 
 indictment for larceny.^ The carrier may recover the posses- 
 sion if wrongfully taken from him by replevin or trover, and 
 
 668; affirmed, 44 N. Y. 94, 4 Am. Rep. ard Oil Co., 20 Hun (N. T.), 39; af- 
 
 645; Harris v. Rand, 4 N. H. 359. firmed, 87 N. Y. 486. 
 
 Where a part of a cargo of salt was ^ Story on Bailm., see. 303; Young 
 
 lost by inevitable accident, it was v. Kimball, 23Pa.St. 193;.VanBaalen 
 
 held that the carrier could not col- v. Dean, 27 Mich. 104. 
 
 leot for the portion delivered. < Hagerstown Bank v. Express Co., 
 
 1 Russell Mfg. Co. v. New Haven 45 Pa. St. 419. 
 
 S. S. Co., 53 N. Y. 657; MoKee v. 5 Story on Bailm., sec. 93/; Merrick 
 Hecksher, 10 Daly, 393. v. Brainard, 38 Barb. 574. 
 
 2 N. Y. Cent. & H. R. Co. v. Stand- 
 
 536 
 
CH. X.J COMPENSATION AND LIEN OF OAEEIEE. [§§ 541, 542. 
 
 it is said in an action of trover he will be permitted to recover 
 a judgment for the full value of the goods claimed, and to re- 
 tain in his own right the amount due for his services and hold 
 the balance in trust for the owner.' If the goods have been 
 lost and the owner has recovered of the carrier for the value 
 of the goods, the carrier is entitled to the full amount he may 
 recover from the person or persons who deprived him of them, 
 and in such case the carrier becomes the owner and succeeds 
 to all the rights and privileges of the owner. Indeed, he be- 
 comes the equitable assignee of the owner of the property.^ 
 
 § 641. The carrier may insure the goods. — The in- 
 terest of the carrier is sufHcient, and to that extent he may in- 
 sure the goods not only for the amount of his special prop- 
 erty in them, but for the full amount of the property. It has 
 been held that where the carrier has obtained insurance upon 
 the property for the full amount and the property is lost by 
 fire, he may recover the amount of the insurance although he 
 had by contract limited his liability to the extent that he was 
 not to be liable if lost by fire. But in such case the whole 
 amount of insurance over and above the amount due the car- 
 rier for compensation inures to the benefit of the owner.'' But 
 the carrier could not insist upon the owner insuring the goods 
 as a condition precedent to his receiving them for carriage, be- 
 cause that would be antagonistic to the rule that the carrier 
 must receive and carry freight for all who apply, if the freight 
 offered is in the line of his business.* 
 
 §542. When can the carrier sell the goods. — To 
 
 satisfy his lien the carrier cannot sell the goods except as au- 
 thorized by law. In most of the states a foreclosure of the 
 lien is provided by statute, and in such case the statute must 
 be followed. There are circumstances, however, when the 
 carrier is not only permitted to sell but it is his duty to sell 
 the goods; not because of an unsatisfied lien for his com- 
 
 'IngersoU v. "Van Bokkelin,7 Cow. Tex 475; Waring v. Indemnity Ins. 
 
 670; Strong v. Adams, 30 Vt. 231; Co., 45 N. Y. 606; Eastern R. Co. v. 
 
 Hutch, on Carriers, sec. 426. Relief Ins. Co., 98 Mass. 420; Com- 
 
 ^ Hagerstown Bank v. Express Co., monwealth v. Hide & Leather Co., 
 
 45 Pa, St. 49; White v. Webb, 15 Conn. 112 Mass. 136, 7 Exch. 328. 
 303; Hiokok v. Buck, 23 Vt. 149; Lit- «Inman v. South Car. Ey. Co., 129 
 
 tie V. Fosset, 34 Me. 545. U. S. 128. 
 
 ^Insurance Co. v. Railroad Co., 63 
 
 537 
 
§ 542.] CAEEIEES. [PAET V. 
 
 pensation, but because of his duty to use diligence in promoting 
 the best interests of the owner while the property is under his 
 control, and to this end he is bound to dispose of the goods to 
 the best advantage ; as, for example, when the carrier cannot 
 carry the goods to their destination, or obtain them to be car- 
 ried because of disaster to his ship while at sea, or under cir- 
 cumstances when he is rendered helpless as to the carrying of 
 the property — as where the goods are perishable and will 
 not last to be carried to their destination. In such case the 
 carrier may sell the goods to the very best advantage. It is 
 said, however, that he should sell, if possible, where there 
 will be competition; but if he cannot do so it is his duty to 
 communicate to the owner of the property before he makes 
 such sale.^ The law demands that there must be the utmost 
 fairness in such cases on the part of the carrier. His conduct 
 will at all times be open to investigation of the owner and by 
 the court; and even if the owner accepts the amount received 
 by the carrier upon such sale of the goods, this will not pre- 
 clude him from disputing the claim of the carrier where he 
 has not consented to the sale; nor will it preclude him from a 
 further recovery in case of fraud or unfair dealing or negli- 
 gence on the part of the carrier. The rule is discussed in the 
 case oi The Julia Blake, above cited. The court say: "The 
 master can neither sell nor hypothecate the cargo, except in 
 case of urgent necessity, and his authority for that purpose is 
 no naore than may reasonably be implied from the circum- 
 stances in which he is placed. He acts for the owner of the 
 cargo because there is a necessity for some one to do so, and, 
 like every agent whose authority arises by implication of law, 
 he can only do what the owner, if present, ought to do. Ne- 
 cessity develops his authority and limits his powers. What he 
 does must be directly or indirectly for the benefit of the cargo, 
 considering the situation in which it has been placed by the 
 accidents of the voyage. As was said by Sir William Scott in 
 The Gratitudine,^ by which the power of the master, under 
 
 1 Hall V. Ocean Ins. Co., 37 Fed. The Ship Active, 3 Wash. C. C. 238, 
 371; The Julia Blake, 107 U. S. 418. 337; The Packet, 3 Mason, 255,259; 
 
 ^3 C. Eob. 240, 361; Duncan v. New England Ins. Co. v. The Sarah 
 Benson, 1 Exoh. 5.-)7; The Onward, Ann, 13 Pet. (U. S.) 387, 400; The 
 Law Rep. 4 Ad. & Ec. 38, 57; Ross v. Amelie, 6 Wall 18, 37. 
 
 588 
 
OH. X.J COMPENSATION AND LIEN OP CAEBIEE. [§ 543. 
 
 proper circumstances, to h^'^pothecate the cargo to pay the ex- 
 penses of repairs on the ship, was incontrovertibly established : 
 'In all cases it is the prospect of the benefit to the proprietor 
 that is the foundation of the authority of the master. It is 
 therefore true that, if the repairs of the ship produce no ben- 
 efit or prospect of benefit to the cargo, the master cannot 
 bind the cargo for such repairs. But it appears to me that 
 the fallacy of the argument, that the master cannot bind 
 the cargo for the repairs of the ship, lies in supposing that 
 whatever is done for the repairs of the ship is in no degree 
 and under no circumstances done for the benefit, or with the 
 prospect of benefit, to the cargo; whereas the fact is that, 
 though the prospect of benefit may be more direct and more 
 immediate to the ship, it may still be for the preservation and 
 conveyance of the cargo, and is justly considered as done for 
 the common benefit of both ship and cargo.' " 
 
 §543. The amount charged. — The amount of freight the 
 common carrier can charge, in the absence of an express con- 
 tract fixing the amount, must of course depend upon the cir- 
 cumstances of the particular case ; the charge must be a reason- 
 able one, and is a question for the jury; however, this does not 
 mean that it must be the same in amount as is charged to every 
 other customer for the same service ; not that charges to all 
 must be equal, but that it must be no more than reasonable ;''it 
 may be less, but cannot be more. No one can be charged an 
 excessive rate; the highest rate charged must be reasonable. 
 This is the common-law rule regardless of any statutes that have 
 been passed regulating charges.' 
 
 Where a railroad company compelled the plaintiff to pay for 
 lumber shipped'over its road fifty cents per thousand more than 
 it charged another party for transporting lumber over its road 
 at the same time, it was held by the court " that all the entire 
 public have the right to the same carriage for a reasonable 
 price and at a reasonable charge for the service performed; 
 that the commonness of the duty to carry for all does not in- 
 volve a commonness or equality of compensation or charges." 
 The court further say: "All the shipper can ask of a common 
 carrier is that for the service performed he shall charge no more 
 than a reasonable sum to him ; that whether the carrier charges 
 
 1 Louisville, etc. R Co. v. Wilson, 119 Ind. 353. 
 539 
 
§ 543.] CAEEIEES. [PAET T. 
 
 another more or less than the price charged a particular indi- 
 vidual may be a matter of evidence in determining whether a 
 charge is too much or too little for the service performed, and 
 that the difference between the charges cannot be the measure 
 of damages in any case unless it is established by proof that 
 the smaller charge is the true reasonable charge in view of tbe 
 transportation furnished, and that the higher charge is excessive 
 to that degree. The obligations in this matter must be recip- 
 rocal. Where there is no express contract, the common-law 
 action by the carrier against the shipper is for a quantum meruit, 
 and the liability of the shipper is for a reasonable sum in view 
 of the service performed for him. What is charged another 
 person, or the usual charge made against many others, is matter 
 of evidence admissible to ascertain the value of the service per- 
 formed. In every case the legality of the charge is established 
 and measured by the value of the service performed, and not 
 by what is charged another, unless what is charged the other 
 is the compensating sum, in which event it is the proper sum, 
 not on account of its equality, but because of the relation it 
 bears to the value of the service performed as an adequate com- 
 pensation therefor. To sum the whole matter up, the common 
 law is that a common carrier shall not charge excessive freights. 
 It protects the individual from extortion and limits the carrier 
 to a reasonable rate, and this on account of the fact that he 
 exercises a public employment, enjoys exclusive franchises and 
 privileges, derived, in the case of defendant here, by grant from 
 the state. The rule is not that all shall be charged equally, 
 but reasonabl}^, because the law is for the reasonable charge 
 and not the equal charge. A statement of inequality does not 
 make a legal cause of action because it is not necessarily un- 
 reasonable. It would be a strange rule indeed which would 
 authorize a shipper, after being compelled to pay his freights 
 according to established rates, to look around and find some 
 smaller charge for the same service during the same time, which 
 may be either as a gratuity or a sale of service at a non-com- 
 pensating rate, or less than the reasonable charge, and claim 
 his damages according to this difference, based upon an in- 
 equality not general in its character, but existing only by virtue 
 of a charge made for the same service against one other per- 
 son. . . . Whether a charge made by A. against B. is rea- 
 
 540 
 
CH. X.] 
 
 COMPENSATION AND LIEN OF CAEKIEE. 
 
 [§ 543. 
 
 sonable cannot be determined by establishing the charge against 
 C. for the same service. It is too plain for argument that the 
 higher charge, where there is a difiference, may be what is the 
 compensating sum, and the lower charge may be too small for 
 the service." ' 
 
 1 Johnston v. Pensaoola Ry. Co., 16 
 Fla. 633, 26 Am. Rep. 731. In this case, 
 which was a case decided squarely 
 upon the common law, the court has 
 cited and quoted from the English 
 cases and also from the American 
 cases. We have taken from the opin- 
 ion several citations and quotations. 
 "In Peck V. North Staffordshire E. 
 Co., decided in 10 House of Lords 
 Cases, in 1863, Mr. Justice Blackburn 
 says: ' A common carrier is bound to 
 carry for a reasonable remuneration.' 
 In one of the earlier cases upon the 
 subject it is said that ' where there 
 is no agreement as to price, the car- 
 rier might have a quantum meruit 
 for his hire.' This means simply that 
 he could recover the value of his serv- 
 ice. In Harris v. Packard, 3 Taunt. 
 264, it is said: 'A carrier is bound by 
 law to carry everything which is 
 brought to him for a reasonable sum 
 to be paid to him for the same car- 
 riage and not to extort what he will.' 
 We cannot say that the carrier is 
 bound to carry anything beyond ar- 
 ticles of such class as he is under a 
 legal obligation to carry, but it is 
 unquestionably true that his charge 
 must be ' reasonable.' In the case of 
 Citizens' Bank v. Nantucket S. Co., 
 2 Story, 35, Mr. Justice Story, speak- 
 ing of the hire or recompense of com- 
 mon carriers, remarks that ' it may 
 be in the nature of a quantum mer- 
 uit,^ The same view is announced 
 in 5 Wend. 340, and in 5 "Wend. 350. 
 Says Parke, B., in Pickford v. Grand 
 Junction R. Co., 8 M. & W. 378: ' The 
 carrier is bound to receive the goods 
 on the money being paid or tendered, 
 and the bailor to pay the reasonable 
 amount demanded.' In 3 Steph. (N. P.) 
 
 978, it is said 'common carriers are 
 bound to receive and carry the goods 
 of the subject for a reasonable re- 
 ward.' In 1 Duvall, 146. the court of 
 appeals of Kentucky says: 'A com- 
 mon carrier cannot, like a merchant 
 or mechanic, consult his pleasure or 
 caprice as to the conduct of his busi- 
 ness. The law makes it his duty, 
 when he can conveniently do so, to 
 receive and carry goods for any per- 
 son whatsoever for a reasonable 
 hire.' . , . That principle was fol- 
 lowed up in the case of Bolt v. Sten- 
 nett, 8 Term Rep. 606; for there, the 
 quay being one of the public quays 
 licensed under the statute of Eliza- 
 beth, it was held that the owner was 
 bound to permit the use of the crane 
 upon it, and could not insist either 
 that the public should not use the 
 crane at all, or should use it only upon 
 his own terms, but that he was bound 
 to permit the use of it upon reason- 
 able terms.' ... It cannot be 
 questioned that the reason why a 
 common carrier is restricted to rea- 
 sonable rates is the same that causes 
 the limitation at common law upon 
 the rates to be charged by a wharf- 
 inger licensed under a statute. In 
 reference to a railroad company it 
 may be truly said that it exercises 
 a gwa.si- public employment. While 
 railroads are managed for private 
 benefit and the profits resulting from 
 their operation go to individuals, yet 
 they are treated as merely a public 
 convenience and agency in the mat- 
 ter of state and interstate commer- 
 cial intercourse. It is the public 
 character attached to them which, 
 under certain circumstances, author- 
 izes taxation for their construction, 
 
 541 
 
§ 544.J 
 
 CAEEIEES. 
 
 [part 
 
 in 
 
 § 544. Right of carrier to collect its advances to connect- 
 __.g carriers. — Custom and general usage, adopted by carriers 
 and generally understood and acquiesced in by the public have 
 established rules recognized by the courts as the law governino- 
 in such cases: that connecting carriers may advance to the 
 carrier from whom it receives freight and collect of the con- 
 
 as a tax for a private purpose is un- 
 constitutional; and it is the like pub- 
 lic nature of their functions which 
 enables them to become the objects 
 of a legislative grant to take the 
 property of an individual for their 
 use, paying a reasonable compensa- 
 tion therefor. ... In the case of 
 Fitchburg Ry. Co. v. Gage et al., 13 
 Gray, S'J'i, the supreme court of Mas- 
 sachusetts held ' that a railroad cor- 
 poration is not obliged as a common 
 carrier to transport goods and mer- 
 chandise for all persons at the same 
 rates.' In speaking of the common- 
 lavf rule that court says: 'It re- 
 quires equal justice to all. But the 
 equality wliich is to be observed in 
 relation to the public and to every 
 individual consists in the restricted 
 right to charges in each particular 
 case for service a reasonable com- 
 pensation and no more. If the car- 
 rier confines himself to this, no 
 wrong can be done and no cause af- 
 forded for complaint.' The claim 
 made in this case arose out of a dif- 
 ference between the freights upon 
 plaintiff's ice and the price charged 
 others upon the same class of 
 freights. It was not upon the same 
 material, but the court treated the 
 case as involving the same principle. 
 It based its conclusion upon the 
 ground that the plaintiff did not set 
 out a case of excessive or unreason- 
 able charge. In the last edition of 
 Story on Bailments we find the rule 
 of the common law thus stated: 'At 
 common law a common carrier of 
 goods is not under any obligation to 
 treat all customers equally. He is 
 
 bound to accept and carry for all 
 upon being paid a reasonable com- 
 pensation. But the fact that he 
 charges less for one than for another 
 is only evidence to show that a par- 
 ticular charge is unreasonable, noth- 
 ing more. There is nothing in the 
 common law to hinder a carrier from 
 carrying for favored individuals at 
 an unreasonably low rate or even 
 gratis.' In support of this doctrine 
 the following cases are cited: 13 
 Gi-ay, 393; 3 P. C. 337; 4 C. B. (N. S.) 
 78; 13 C. B. (N. S.) 74. While the 
 text is the reasonable deduction 
 from remarks in these cases, still, 
 with the exception of the case re- 
 ported in 13 Gray, they were oases 
 arising under statutes. Most of the 
 cases treat of the common-law rule 
 strictly as between the parties, and 
 without comparison as to the charges 
 against others, the cases wliere legis- 
 lative action is being construed and 
 is controlling being omitted as not 
 being in point. The cases stating the 
 common-law rule are simply that the 
 charge must be reasonable. Thus far 
 there cannot be any reasonable dif- 
 ference between fair minds. In the 
 next place, the right to have the 
 service of the common carrier at a 
 reasonable rate is common. Upon 
 a tender of a reasonable compensa- 
 tion, unless there is a reasonable 
 ground for his refusal, in case of re- 
 fusal he will be liable to an action. 
 Under such circumstances he must 
 receive and carry all goods offered 
 for transportation by any person 
 whatever upon receiving a suitable 
 hire." 
 
 04? 
 
OH. X.] COMPENSATION AND LIEN OF OAEEIER. [§ 5-1:4:. 
 
 sigaee or shipper the amouut, with its own freight charges 
 added, on delivery of the goods to the consignee, provided al- 
 ways that the charges be reasonable. This privilege seems to 
 be based upon another theory, and it has been held " that a 
 common carrier through whose hands goods are shipped is the 
 agent of the owner, and has implied authority to advance 
 charges on the goods' and collect them again from the next 
 carrier to whom they are delivered." ^ And where one pur- 
 chased property in New York, it being agreed by the seller that 
 it should be delivered in St. Louis for a certain sum of money, 
 and it was sent by the route pointed out by the buyer over 
 several roads forming one line, terminating at St. Louis, the 
 last carrier paying the freight and charges of all preceding car- 
 riers, and demanding of the purchaser the amount they had paid 
 with their own freight added, all of which amounted to a much 
 larger sum than that agreed upon by the seller, it was held 
 that the railroad company was entitled to recover the amount 
 demanded.^ But while the connecting carrier may pay the 
 charges and freight upon the goods received from the preced- 
 ing carrier, and collect, as we have seen, from the consignee 
 or the owner, he is not obliged to do so; he may receive the 
 goods as the agent of the carrier who delivered the goods to 
 him, and collect the amount for him of the consignee.' 
 
 1 Armstrong v. Chicago, etc. Ry. not deprive him of such right." West- 
 Co., 62 Mo. App. 639. ern Transp. Co. v. Hoyt, 69 N. Y. 330, 
 
 2 V7ells V. Thomas, 27 Mo. 17, 73 35 Am. Rep. 175. 
 
 Am. Dec. 238; Naugatuok Ry. Co. v. ^In Oregon Short Line, etc. Co. v. 
 
 Beardsley Scythe Co., 33 Conn. 318. Northern Pac. R. Co., 51 Fed. 465. 
 
 " A connecting carrier has authority it was held: "In the absence of 
 
 to advance charges and freight and any i-egulation by lave or custom, a, 
 
 collect the same upon delivery of the railway company receiving freight 
 
 goods." Bissell v. Pierce, 16 111. 408. from a connecting line is not required 
 
 And governs even though goods are to advance or assume payment of the 
 
 Ibid. Where a " carrier charges due thereon for transporta- 
 
 has advanced the charges of an ante- tion from the point of origin to the 
 
 cedent carrier who transported the point of connection." Baltimore & 
 
 goods under an independent con- Ohio Ry. Co. v. Express Co., 23 Fed. 
 
 tract, he becomes subrogated to the 33; In Travis v. Thompson, 37 Barb, 
 
 rights of the latter, and may recover 336, it was held: "A carrier tak- 
 
 such advances although he fails to ing goods from a previous carrier 
 
 perform his own contract; and the is not obliged to pay his predecessor's 
 
 fact that his bill of lading is for charges, but may be regarded as the 
 
 transportation and delivery upon agent of his predecessor to collect 
 
 payment of freights and charges does his lawful charges. " 
 
 543 
 
§§ 545, 546.] CAEEIEES. [PAET 
 
 V. 
 
 § 545. Who is liable to the carrier for the freight.— The 
 
 consignee is presumed to be the owner of the goods and so may 
 be said to be jprima facie liable for the freight charges. But 
 this is merely a presumption that may be overcome by proof. 
 If the consignee, however, accepts the goods from the carrier, 
 he becomes liable for the payment of the freight, and the car- 
 rier can collect from him the amount together with other 
 charges that follow the goods.' JS'otwithstanding the presump- 
 tion that the consignee is the owner of the goods, the carrier 
 may hold the shipper for the freight if he chooses to do so, 
 even if the shipper does not own the goods and the carrier has 
 waived his lien. It was the shipper who procured the carrier 
 to do the service, and impliedly he assumed the payment of 
 the freight ; and it has been held that he is liable for the freight, 
 and is not the less liable because the consignee is also liable.'' 
 § 546. Where the freight is only carried a part of the dis- 
 tance contracted for — Pro rata itineris. — It will be remem- 
 bered that goods are placed in the custody and control of the 
 carrier only for the purpose of being transported as contracted 
 for at the time. The owner's right to the goods is always para- 
 mount to that of the carrier; he may take them from the pos- 
 session of the carrier at any time, or at any place while in 
 transit before they reach their destination, but in such case 
 if the carrier has commenced the transportation and is ready 
 and able to continue carrying the goods, and to deliver them 
 at their destination, he is entitled to compensation for the full 
 performance of the contract.' This is upon the theory that the 
 carrier has a lien upon the goods for the performance of the 
 contract for transportation and so has the right to possession 
 of them for a reasonable time and until the contract is per- 
 formed. The owner may waive his contract for further trans- 
 portation, but in order to discharge the lien and deprive the 
 
 1 Northern German Lloyd v. Heyle, (8 Gray), 281 ; Great Western Transp. 
 44 Fed. 100; Gates v. Ryan, 37 Fed. Co. v. Bagg, 15 Q. B. Div. 626; Story 
 154. on Bailm. 589; Holt v. Wescott, 43 
 
 2 Wooster V. Tarr, 90 Mass. (8 Allen), Me. 445; Minor v. Norwich, etc. Ry. 
 370, 85 Am. Dec. 163; Hay ward v. Co., 33 Conn. 91; Thomas v. Snyder, 
 Middletou, 3 McCord (S. C), 131; Gil- 39 Pa. St. 317; Hutch, on Carriers, 451. 
 son V. Madden, 1 Lans. (N. Y.) 173; 3 The Gazelle, 128 U. S. 474; Braith- 
 Grant v. Wood, 21 N. J. L. 293, 47 Am. waite v. Powers, 1 N. Dak. 455, 48 N. 
 Dec. 163; Blanchard v. Page, 74 Mass. W. 354. 
 
 544 
 
OH. X.] COMPENSATION AND LIEN OF CAEEIEK. [§ 54:Y. 
 
 carrier of the right of possession by reason of his services and 
 contract for further services the shipper must pay the freight 
 as stipulated. 
 
 On the other hand, the carrier may find it impossible to 
 carry the freight to its destination because of some disaster. 
 If the goods are destroyed by the act of God or the public 
 enemy while being transported or before delivery, the carrier 
 is not entitled to payment of the freight. But where goods 
 are not destroyed and the carrier is unable to proceed he may 
 reship bj' some other carrier. If, in such case, the original 
 carrier is compelled to pay a larger amount for the continued 
 transportation than the original contract stipulated for the 
 entire shipment, the shipper or owner would be liable for the 
 amount that is contracted to be paid, for it would be held that 
 the original carrier was the agent of the shipper with author- 
 ity to make the contract, and the owner or consignee would 
 be compelled to answer to this contract; but he would, no 
 doubt, have redress from the original carrier for the differ- 
 ence. In such case the original carrier would not be entitled 
 to compensation for carrying the goods to the place of disaster. 
 But, on the other hand, if the amount contracted to be paid 
 the carrier, who received the freight by contract from the 
 original carrier at the place of disaster, was a less amount 
 than that to be paid to the former carrier, in such case the 
 owner, or consignee, or shipper would be liable to pay the dif- 
 ference to the original carrier. But suppose it to be a case 
 where the owner or consignee desired to take possession of his 
 goods at the place of disaster, believing, for example, that he 
 could ship them to their destination to a better advantage, or 
 that he could sell them in the market at that place to as good 
 an advantage as at the destination, or for any other reason 
 should desire to relieve the carrier; in such case the carrier 
 would be entitled to a p^o rata compensation, that is, to such 
 a part of the compensation as had been fairly earned. This is 
 usually termed j^r-o rata itineris. 
 
 § 547. Where goods shipped against the will of the owner, 
 
 as by one not having the right to ship The owner of the 
 
 goods cannot wrongfully be deprived of them or of their pos- 
 session ; and so if goods are stolen or have been shipped by one 
 
 who had no authority to ship them, in such case the owner 
 35 545 
 
§ 548.] CAEEIEES. [part T. 
 
 could recover his goods from the carrier, and the carrier would 
 not be entitled to compensation for their shipment, and should 
 the carrier refuse upon demand to deliver the property to the 
 true owner he would be liable in an action for conversion. 
 
 As TO DlSCEIMINATION. 
 
 § 548. Law forbidding, applies to all branclies of carrier's 
 business. — The law forbidding discrimination applies to all 
 branches of the carrier's business; this is now generally regu- 
 lated by statutes throughout all the states and in the United 
 States. The act of congress regulating this is known as the 
 Interstate Commerce Act. The statutes of the states, as a gen- 
 eral rule, but re-enact the established rules of the common law 
 upon the subject. 
 
 Great stress is laid upon the fact that common carriers are 
 to a great extent servants of the public; their franchises are 
 granted by the people, and it is expected in return that there 
 will be no favors shown to any class or any branch of trade. 
 As has been said, " railroads are public instrumentalities, and 
 the public is concerned in the manner in which their affairs 
 are managed, as well as the service they render. As common 
 carriers they are expected to supply suitable and adequate ac- 
 commodations for the business on their lines, and to so per- 
 form their service as not to afford preference to some nor cause 
 prejudice to others. They are expected to do their business 
 through their own corporate agencies, and not to delegate their 
 duties to independent and often irresponsible parties acting as 
 middle-men between the carriers and the public. For continu- 
 ous carriage by connecting routes all reasonable facilities are 
 expected to be afforded. In short, railroads, as the necessary 
 highways of the country, are expected to keep in view the 
 purpose for which their franchises were granted, and, while 
 guarding their revenues with fidelity to their corporate inter- 
 ests, to make the public service their constant aim, and to so 
 manage their affairs that the service shall be impartial and 
 reasonable." ^ 
 
 The definition of a common carrier usually concurred in' ex- 
 presses the legal duty of the carrier in this respect: "One who 
 holds himself out as ready and willing to carry the goods of 
 
 1 3 Int. St. Comm. Comm'n Rep. 399. 
 546 
 
OH. X.] COMPENSATION AND LIEN OF OAREIEE. [§§ 549, 550. 
 
 all who may apply," etc. It implies that all will be treated 
 alike, and that there shall be no discrimination. 
 
 §649. Relates to facilities for shipment. — The re- 
 quirements of the law Have reference to all the facilities incum- 
 bent upon the carrier to furnish — its stational facilities, dock 
 privileges, the use of warehouses for the delivery and receipt 
 of the goods, the use of stock pens for the shipment of animals, 
 the furnishing of cars or boats for the transportation of the 
 goods, and the motive power for drawing the trains as well as 
 rates for carriage. As the carrier is bound to furnish all these 
 facilities, he is legally bound to furnish them without unjust 
 and undue discrimination. 
 
 "At common law," says an eminent jurist, "common car- 
 riers were held to be persons who exercised their calling for 
 the public good upon equal terms and with the same facilities 
 to all their customers. They could not lawfully exercise their 
 calling by granting advantages to one customer which thej' 
 denied to another, but were held to the duty of serving all 
 alike. Their calling is one public in its nature, and the com- 
 mon law exacted of them a strict impartiality in their deal- 
 ings with the public." ^ 
 
 § 550. The discrimination that is forbidden. — As has been 
 said, discrimination does not mean merely unequal rate charges ; 
 the carrier may charge one customer a less rate than is deter- 
 mined to be a reasonable rate, and which is charged to another 
 customer. The vice that is aimed at is a partiality that will 
 affect trade and create and nourish monopolies. As, for ex- 
 ample, where competition is sharp among dealers in a certain 
 commodity, a partiality as to furnishing facilities for shipment 
 or rates extended to a certain dealer or company might be 
 sufficient to create a monopoly for the favored dealer and drive 
 all others from the trade. It is this unjust or oppressive par- 
 tiality that favors one at the expense of others that the law 
 forbids. As said by Judge Elliott: " It is safe to say that the 
 rule is that a railroad carrier, so far as concerns the receipt and 
 transportation of goods, however it may be as to rates of freight, 
 
 •Fitzgerald v. Grand Trunk Ry. 68 Pa. St 370; MoDuffle v. Railway 
 Co., 63 Vt. 169, 13 L. R. A. 70; Mes- Co., 53 N. a 430; New England v. 
 Sanger v. Pa. Ry. Co., 36 N. J. L. 407; Railway Co., 57 Me. 188. 
 Audenreid v. Philadelphia Ry. Co., 
 
 547 
 
§ 650.] OAEEIEES. [PAET V. 
 
 must, where the conditions and circumstances are identical, 
 treat all shippers alike. It cannot furnish facilities to some 
 shippers and deny them to others unless there is a difference in 
 condition or circumstances such as makes the discrimination a 
 just one." ' 
 
 In a case in Pennsylvania - involving the question of viola- 
 tion of the statute and constitution of the state, which is but 
 a re-enactment of the common-law rule, the court say: "It 
 (the law) prohibits only discrimination which is undue or un- 
 reasonable, and the prohibited discrimination is further limited 
 by the consideration that it must be ' for a like service from 
 the same place upon like conditions and under similar circum- 
 stances.' " It has been said that " a railroad company is an 
 improved highway and the public are equally entitled to its 
 use; it must provide equal accommodations for all upon the 
 same terms." ' 
 
 And in Louisville, etc. Ry. Co. v. Wilson* it is said by the su- 
 preme court of Indiana: "Eailroad companies are granted 
 charters and are given the rights of eminent domain because 
 when the roads are constructed, though owned by the corpo- 
 ration, they are nevertheless for public use, and are, in a qual- 
 ified sense, public highways. Everyone constituting a part of 
 the public for whose use they are constructed is entitled to an 
 equal and impartial participation in the use of the facilities 
 for transportation which they afford. While power to fix rates 
 is conferred upon them by law, such rates are always open to 
 investigation by the courts; for it is an elementary rule that 
 common carriers can charge no more than a reasonable com- 
 pensation for the services performed. While it is true that 
 there is apparently some conflict in the authorities, the princi- 
 ples here announced we think are supported by the weight of 
 authority."' 
 
 1 Elliott on Railroads, 1468; Little » Root v. Long Island R Co., 114 
 Rock, etc. R Co. v. Oppenheimer, eta N. Y. 300, 4 L. R A. 331; New Eng. 
 Co., 64 Ark. 271, 44 L. R A. 353. Exp. Co. v. Maine Cent. R Co., 57 
 
 2 Hoover et aL v. Pa. Ry. Co., 156 Me. 188; Soofield v. Lake Shore & M, 
 Pa. St. 230, 23 L. R. A. 363. S. R Co., 43 Ohio St. 617, 54 Am. Eep. 
 
 3 State V. Cincinnati, N. O. etc. Ry. 846; Sandford v. Catawissa, W. & E. 
 Co., 47 Ohio St. 130, 7 L. R. A. 319. R Co., 34 Pa. St. 378, 64 Am. Dec. 
 
 < Louisville, etc. Ry. Co. v. Wilson, 676; Hays v. Pennsylvania Co., 12 
 132 Ind. 517, 18 L. R. A. 105. Fed. 309; Attorney-General v. Chi- 
 
 548 
 
OH. X.J COMPENSATION AND LIEN OF OAEEIEK. [§ 551. 
 
 A writer on railway law thus expresses the general rule: 
 "Railways are held to the strictest impartiality in the conduct 
 of their business, in withholding all privileges or preferences 
 from one customer which are not extended to all others." ^ 
 
 "The hinge of the question," says a learned judge, "is not 
 found in the single fact of discrimination, for discrimination 
 without partiality is inoffensive, and partiality exists only in 
 cases where advantages are equal, and one party is unduly 
 favored at the expense of another who stands upon an equal 
 footing," ^ 
 
 § 551. Regulation by statute of states. — This ques- 
 tion of discrimination has received the attention of almost all 
 the state legislatures, and statutes have been generally passed 
 regulating the matter of furnishing facilities and freight rates; 
 but these statutes, of course, are only local to the states where 
 they are enacted, and could not be of any force beyond the 
 borders of such states. And so the remedj'' was not sufficient, 
 and the result was that out of the very intent to regulate often 
 came confusion. With the establishing of great trunk lines 
 reaching across many states, and all under one management, 
 came a disregard of the requirements of these laws; the ques- 
 tion of the jurisdiction of the courts became a serious one, and 
 often damaging partiality was shown to certain shippers to the 
 
 cago & N. W. R Co., 35 Wis. 426; Kansas Pac. R Co., 13 Colo. 181, 5 L. 
 
 Samuels v. Louisville & N. R. Co., R. A. 480; Spofiford v. Boston & M. 
 
 31 Fed. 57; Providence Coal Co. v. R. Co., 128 Mass. 326; Fitchburg R. 
 
 Providence & W, R. Co., 1 Inter. Co. v. Gage, 13 Gray, 398; Johnson 
 
 Com. Rep. 363. v. Pensacola, etc. R. Co., 16 Fla. 683; 
 
 1 1 Wood, Railway Laves, 565. Ragan v. Aiken, 9 Lea, 609, 43 Am. 
 
 2 Cleveland, C. & I. Ry. Co. v. Clos- Rep. 684; McDuffie v. Portland & R. 
 
 .ser, 126 Ind. 348, 9 L. R. A 754, the Co., 53 N. H. 430, 18 Am. Rep. 72; 
 
 court in the above case citing Eng- Hersh v. Northern Cent. R. Co.. 74 
 
 lish cases said to support this gen- Pa. St. 181 ; Christie v. Missouri Pac. 
 
 eral doctrine; Garton v. Bristol & R. Co., 94 Mo. 453, 13 West. 688; Chi- 
 
 E. R. Co., 1 Best & S. 113; Hozier v. cago & A. R. Co, v. People, 67 111. 1; 
 
 Caledonian R Co., 1 N. & McN. 29; Erie & Pac. Desp. v. Cecil, 112 111. 
 
 Great Western R. Co. v. Sutton, L. 185: Root v. Long Island R, Co., 114 
 
 R- 4 H. L, 238; Ransome v. Eastern N. Y. 300, 4 L. R. A. 881; Stewart v. 
 
 Counties R Co., 1 N. & McN. 45; Ox- Lehigh Valley R. Co., 38 N, J. L. 505; 
 
 lade V, Northeastern R, Co., id. 73, 1 Union Pac. R. Co. v. United States, 
 
 C. B. (N. S.) 454; Bellsdyke v. North 117 U. 8. 355; Interstate Commerce 
 
 British R Co., 3 N. & McN. 105. The Com, v, Baltimore & O. E. Co,, 8 R, 
 
 American cases seem^o flow in the R, & Corp. L. J. 343, 3 Inter. Com. 
 
 same general channel. Bayles v. Rep. 193. 
 
 549 
 
§ 552.] CAEEIEES. [part V. 
 
 great detriment of others, and in the state courts there seemed 
 to be no redress. So great was the need of correcting the 
 evils in both freight and passenger trafHc that the congress of 
 the United States passed "An act to regulate commerce," which 
 was approved February 4, 188*7. 
 
 § 552. The interstate commerce act.— The first section of 
 the act gives an idea of its object and scope. It is as follows: 
 "Be it enacted by the senate and house of representatives of 
 the United States of America in congress assembled, that the 
 provisions of this act shall apply to any common carrier or 
 carriers engaged in the transportation of passengers or prop- 
 erty wholly by railroad, or partly by railroad and partly by 
 water when both are used, under a common control, manage- 
 ment or arrangement, for a continuous carriage or shipment 
 from one state or territory of the United States, or the District 
 of Columbia, to any other state or territory of the United States 
 or the District of Columbia, or from any place in the United 
 States to an adjacent foreign country, or from any place in the 
 United States through a foreign country to any other place in 
 the United States, and also to the transportation in like man- 
 ner of property shipped from any place in the United States 
 to a foreign country and carried from such place to a port of 
 trans-shipment, or shipped from a foreign country to any place 
 in the United States and carried to such place from a port of 
 entry either in the United States or an adjacent foreign coun- 
 try: Provided, however, that the provisions of this act shall 
 not apply to the transportation of passengers or property, or 
 to the receiving, delivering, storage or handling of property, 
 wholly within one state, and not shipped to or from a foreign 
 country from or to any state or territory as aforesaid. The 
 term ' railroad ' as used in this act shall include all bridges and 
 ferries used or operated in connection with anj' railroad, and 
 also any road in use by any corporation operating a railroad, 
 whether owned or operated under a contract, agreement or 
 lease ; and the term ' transportation ' shall include all instru- 
 mentalities of shipment or carriage. All charges made for 
 any service rendered or to be rendered in the transportation 
 of passengers or property as aforesaid, or in connection there- 
 with, or for the receiving, delivering, storage or handling of 
 such property, shall be reasonable and just; and every unjust 
 
 550 
 
OH. X.] COMPENSATION AND LIEN OF OAEEIEE. [§ 552. 
 
 and unreasonable charge for such service is prohibited and 
 declared to be unlawful." 
 
 The act defines under what circumstances and conditions a 
 common carrier shall be deemed guilty of unjust discrimina- 
 tion, and such discrimination is prohibited and declared to be 
 unlawful. It declares it to be unlawful for any common car- 
 rier subject to the provisions of the act to enter into any con- 
 tract, agreement or combination with any other common car- 
 rier or carriers for the pooling of freight of different competing 
 roads, or dividing aggregate or net proceeds of the earnings 
 of such roads. It makes it incumbent upon every common 
 carrier to print and keep for public inspection schedules show- 
 ing the rates and fares and charges for the transportation of 
 passengers and property which any such common carrier has 
 estabhshed and which are enforced at the time upon its road ; 
 providing as to how advances may be made in freight rates, re- 
 quiring the filing of such schedules of rates, fares and charges 
 with the commission which is provided by the act. 
 
 The whole matter of the regulation of freight and passen- 
 ger carriers by railroads is placed in the hands of a commis- 
 sion provided for by the act known as the Interstate Commerce 
 Commission, and this commission is given authority to investi- 
 gate all complaints that may be made whenever such act is vio- 
 lated, and to report upon the same, and the report of the com- 
 mission found and published shall he prima facie proof of the 
 facts it contains and conclusion arrived at, and will be so taken 
 in any court of the United States in proceedings with refer- 
 ence to said complaint. 
 
 It also provides that when the carrier against whom the 
 commission has found in its report fails to obey the judgment 
 pronounced, the commission or any person interested may 
 proceed in any of the circuit courts of the United States by a 
 summary proceeding provided for in the act to compel com- 
 pliance with the finding of the commission. It also provides 
 " that the act shall not apply to the carriage, storage, or hand- 
 ling of property free or at reduced rates for the United States, 
 state, or municipal governments, or for charitable purposes, or 
 to or from fairs and expositions for exhibition thereat, or the 
 issuance of mileage, excursion, or commutation passenger tick- 
 ets; nothing in this act shall be construed to prohibit any 
 
 551 
 
§§ 553, 55-i.J CAERIEES. [PAET V. 
 
 common carrier from giving reduced rates to ministers of re- 
 ligion ; nothing in this act shall be construed to prevent rail- 
 roads from giving free carriage to their own officers and em- 
 ployees, or to prevent the principal officers of any railroad 
 company or companies from exchanging tickets or passes with 
 other railroad companies for their officers and employees; and 
 nothing in this act contained shall in any way abridge or alter 
 the remedies now existing at common law or by statute, but 
 the provisions of this act are in addition to such remedies." 
 
 The Lien of the Caeeiee. 
 
 § 553. Similar to the lien of the bailee — Special, not gen- 
 eral. — Generally the same principles that have already been 
 discussed as applying to the lien of bailees apply to the lien 
 of the carrier. The common carrier has a specific lien upon 
 the goods transported as security for his compensation and 
 charges.^ The specific lien is implied, but a general lien can 
 only exist by special contract, and such special contract Avill be 
 strictly construed.^ The lien gives the carrier the right to re- 
 tain the possession of the goods until the charges are paid, and 
 so long as the possession is retained by the carrier by reason 
 of the lien, the consignee, or owner, cannot deprive him of it. 
 Statutes in the different states have provided for a foreclosure 
 and a sale to satisfy the lien. The carrier is not authorized by 
 the common law to sell the property either at public or private 
 sale to satisfy the lien; he can only retain the same in his pos- 
 session until the amount is paid. ^Kor do the statutes passed 
 by the several states authorize foreclosure except by public 
 sale, which must be not only public but entirely fair and open, 
 after proper notice and at a proper place. 
 
 §551. When does the lien attach? — While there seems 
 not to be entire harmony among the authorities as to this sub- 
 ject, nevertheless as to the principles involved there can be 
 but little if any dispute. The goods are in transit from the 
 time they are received by the carrier for immediate shipment; 
 
 1 Gracie v. Palmer, 8 Wheat. (U. S.) Eep. 393; Hall v. Diamond, 68 N. H. 
 635; Dyer v. Grand Trunk Ry. Co., 42 46.5. 
 
 Vt. 441, 1 Am. Rep. 350; Barker v. 2 Pennsylvania R. Co. v. Oil Works, 
 Havens, 17 Johns. (N. Y.) 236, 8 Am. 126 Pa. St. 485; Bacharach v. Chester 
 
 B'reight Line, 33 Pa. St 414. 
 552 
 
OH. X.] COMPENSA.TION AND LIEN OF CAEEIEE. [§ 55i. 
 
 from that moment the extraordinary ] iabili ty of the common 
 carrier commences, and the reason for giving to the common 
 carrier the benefit of a lien to secure the payment for his serv- 
 ices is, among other things, because he has incurred the com- 
 mon carrier's liability — has become an insurer of the property 
 to be transported. So the lien given the carrier as a reward 
 for the extraordinary liability should be contemporaneous 
 with the attaching of the responsibility. The amount due the 
 carrier may be large or small, depending upon the amount of 
 service performed, but the lien will attach at the same time 
 the goods are accepted for immediate shipment. Lord Camp- 
 bell, in Taylor v. Tindall,^ expresses the opinion contended for 
 in the following language: " It is argued that there can be no 
 lien on the goods for freight not yet earned or due; but when 
 the goods were laden to be carried on a particular voyage 
 there was a contract that the master should carry them in the 
 ship upon that voyage for freight; and the general rule is that 
 a contract once made cannot be dissolved except with the con- 
 sent of both the contracting parties. By the usage of trade, 
 the merchant, if he redemands the goods in a reasonable time 
 before the ship sails, is entitled to have them delivered back 
 to him on paying the freight that might become due for the 
 carriage of them, and on indemnifying the master against the 
 consequences of any bills of lading signed for them; but these 
 are conditions to be performed before the original contract 
 can be affected by the demand of the goods. It would be 
 most unjust to the owners and master of the ship if we were 
 to hold that upon a simple demand at any time the goods must 
 be delivered back in the port of outfit." 
 
 Some of the cases have held that the lien attaches as soon 
 as the goods are placed on board the ship ; others that it does 
 not attach until the voyage is commenced. But these opinions 
 were rested upon the ground that no part is due before the 
 commencement of the voyage. And so in the earlier days, 
 
 14 El. & BL 219. In Bartlett v. indemnifying the party for any dif- 
 
 Carnley,6Duer(N.Y. Super. Ct), 194, ferenoes between the value of the 
 
 it was held " that the freighter who goods at the port of lading and what 
 
 removes goods once shipped with a the master or ship-owner may be 
 
 bill of lading delivered can only re- obliged to pay at the port of destina- 
 
 slalmthem upon payment of freight, tion under such bill of lading." 
 'oeoessary expenses of unloading, and 
 
 553 
 
§ 555.] 
 
 CAEEIEES. 
 
 [PAET 
 
 V. 
 
 when the carrier did not hold out to the public that he would 
 receive and care for the freight before the hour for loading, 
 the rule might have been different; but the same principle 
 ever existed that when the freight is received, and is in the 
 control of the carrier for immediate shipment, the liability at- 
 taches and the lien exists. Whether it is received by the car- 
 rier in his warehouse for the purpose of immediate shipment, 
 or whether it is received on board his ship, it can make no dif- 
 ference. It must be clear that as soon as the liability attaches 
 to the' carrier, his lien attaches to the goods.' 
 
 § 555. When shipment made by one without authority.— 
 The carrier must obtain possession of the goods from the owner, 
 or by his consent, either express or implied, and if the possession 
 is not thus obtained, but is wrongful or tortious, even though 
 innocent on the part of the carrier and without fault or negli- 
 gence of the owner, the carrier will not have the right to com- 
 pensation for the carrying of the goods, and therefore cannot 
 have a lien upon them for such compensation.^ " There is no case 
 
 1 Bailey v. Damon, 3 Gray (Mass.), 
 93. 
 
 2 In Fitch & Gilbert v. Newberry 
 & Goodell, 1 Doug. 1, the court say: 
 " On the part of the defendants it is 
 contended that a common carrier 
 who receives goods for carriage and 
 transports them may detain them 
 by virtue of his lien, for freight, 
 even against the owner, in case the 
 freight has been earned without 
 fraud or collusion on his part; that, 
 if goods be stolen or otherwise tor- 
 tiously obtained from the legal 
 owner, at New York or elsewhere, 
 and carried by a transportation line 
 from thence to Detroit, without a 
 knowledge of the theft on the part 
 of the carrier, he would be entitled 
 to a lien for freight, even against the 
 owner. This doctrine is sought to 
 be maintained by the defendants' 
 counsel on several grounds: 1. He 
 insists that a common carrier is 
 bound to receive goods which are of- 
 fered for transportation, and to carry 
 them ; that it is not a matter of choice 
 
 whether he will receive and carry 
 them or not; that he is liable to 
 prosecution if he refuses. 2. That a 
 common carrier is not only bound to 
 receive and transport goods that are 
 offered, but he is liable for their loss, 
 in all oases, except by the act of 
 God and public enemies; and the 
 same rule, he insists, applies to ware- 
 housemen and forwarders. 3. That 
 theduties and obligations of common 
 carriers and innkeepers are, in all 
 respects, analogous; and an inn- 
 keeper is bound to receive and en- 
 tertain guests, and to account for a 
 loss of their baggage while under his 
 care. 4. That a common carrier, be- 
 ing bound by law to accept goods 
 offered him for carrying, and being 
 responsible for their safe delivery in 
 all cases except when prevented by 
 the act of God or public enemies, is 
 entitled to a lien for their freight, 
 against all persons, including even 
 the owner, when the goods were tor- 
 tiously obtained from him ; that lie 
 is not bound to inquire into the title 
 
 554 
 
CH. X.] 
 
 COMPENSATION AND LIEN OF OAEEIBE. 
 
 [§ 655. 
 
 to be found, or any reason or analogy anywhere 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. If the owner loses his property 
 
 of the person who delivers them; 
 and such lien exists, although there 
 be a special agreement for the price 
 of carriage. 5. That the master is 
 not bound (nor his agent for him) to 
 deliver any part of a cargo until the 
 freight and other charges are paid. 
 But for the plaintiffs it is contended : 
 1. That liens are only known or ad- 
 mitted in cases where the relation 
 of debtor and creditor exists, so that 
 a suit at law may be maintained for 
 the debt which gives rise to the lien ; 
 that a lien is a mere right to detain 
 goods until some charge against the 
 owner be satisfied. 2. That the de- 
 fendant obtained possession of the 
 goods without authority from the 
 owners, either express or implied; 
 that no legal privity exists between 
 the parties, and therefore the relation 
 of debtor and creditor does not exist 
 between the defendants or their 
 principals and the plaintiffs, and no 
 action could be maintained by either 
 against them for the freight, or any 
 part of it. . . , That common 
 carriers are bound to receive goods 
 which are offered, by the owners or 
 their agents for transportation and 
 to carry them for a just compensa- 
 tion, upon the routes which they 
 navigate, or over which they convey 
 goods in the prosecution of their 
 business, is too well settled to require 
 discussion, although this general 
 proposition is subject to some qualifi- 
 cations. . . , That common car- 
 riers are responsible for the safe con- 
 veyance and delivery of the goods 
 committed to them for carriage is 
 just as conclusively settled as that 
 they are bound to receive and carry 
 them. A common carrier is said to 
 be in the nature of an insurer, and is 
 
 answerable for accidents and thefts, 
 and even for a loss by robbery. He 
 is answerable for all losses which do 
 not fall within the accepted cases of 
 the act of God, or inevitable acci- 
 dent without the intervention of 
 man, and public enemies. . . . 
 If, as contended for bj' the defend- 
 ants, a carrier is bound to receive 
 and carry all goods offered for trans- 
 portation, without the right of in- 
 quiring into the title or authority of 
 the person offering them, then 
 clearly he should be entitled to a 
 lien, even against the owner, upon 
 the goods, until he is paid for the 
 labor he may bestow in their car- 
 riage. 
 
 " Let us now inquire whether such 
 is the law. The doctrine is certainly 
 opposed to all the analogies of the 
 law, and it seems to me to every 
 principle of common justice. The 
 only adjudged case I have been able 
 to find which favors it is Yorke 
 V. Grenaugh, 3 Ld. Raymond, 866. 
 That was replevin for a gelding. 
 The defendant, who was an inn- 
 keeper, received the horse from a 
 stranger, who had stolen him. On 
 demand being made for tlie horse by 
 the owner, the defendant, who was 
 ignorant of the theft when he re- 
 ceived him, refused to deliver him 
 up until paid for his keeping, insist- 
 ing on his right of lien. The court 
 held it reasonable that he should 
 have a remedy for payment, which 
 was by retainer; and that he was 
 not obliged to consider who was the 
 owner of the horse, but whether he 
 who brought him was his guest. And 
 Holt, C. J., cited the case of the Ex- 
 eter carrier, which he thus stated: 
 Where A. stole goods and delivered 
 
 555 
 
§ 555.] 
 
 CABEIERS. 
 
 [PAET V. 
 
 ■or is robbed of it, or it is sold or pledged without his consent 
 by one who has only a temporary right to its use by hiring or 
 otherwise, or a qualified possession of it for a specific purpose, 
 
 them to the Exeter carrier to be car- 
 ried to Exeter, the owner finding the 
 goods in the possession of the carrier 
 demanded tliem of him. The car- 
 rier refused to deliver them without 
 being first paid for the carriage. The 
 owner brought trover for his goods, 
 and it was adjudged that the defend- 
 ant might detain them for the car- 
 riage, on the ground that tlie carrier 
 was obliged to receive and carry 
 them. Powell, J., denied the author- 
 ity of the Exeter case, but concurred 
 with Chief Justice Holt in the decis- 
 ion of the case then under consider- 
 ation. There is no obvious ground 
 of distinction between the cases of 
 carrying goods by a common carrier 
 and tlie furnishing keeping for a 
 horse by an innkeeper. In the latter 
 case it is equally for the benefit of 
 the owner to have his horse fed by 
 the innkeeper in whose custody he 
 is placed, whether left by a thief or 
 by himself or agent; in either case 
 food is necessary for the preserva- 
 tion of his horse, and the innkeeper 
 confers a benefit upon the owner by 
 feeding him. But can it be said that 
 a carrier confers a benefit on the 
 owner of goods by carrying them to 
 a place where, perhaps, he never de- 
 signed and does not wish them to 
 go ? . . . The obligation of a com- 
 mon carrier to receive and carry all 
 goods offered is qualified by several 
 conditions, which he has a right to 
 insist upon before receiving them: 
 1. That the person offering the goods 
 has authority to do so. 3. That a 
 just compensation, or the usual price, 
 be tendered for the carriage. And 
 3. That, although the owner or his 
 agent offer goods for carriage and 
 tender payment for the freight in 
 advance, still he is not bound to re- 
 
 ceive them unless he have the requi- 
 site convenience to carry them. In 
 an action brought against a carrier 
 for refusing to receive and carry 
 goods, would it not constitute a valid 
 defense that the plaintiff had stolen 
 them, although at the time of offer- 
 ing" the carrier may not have known 
 they had been stolen? In Story on 
 Bailm., sec. 582, it is laid down that 
 a carrier is excused for non- delivery 
 of goods to the consignee, when they 
 are demanded or taken from his pos- 
 session by some person having a su- 
 perior title to the property. And 
 again, where the adverse title is 
 made known to the carrier, if he is 
 forbidden to deliver the goods to any 
 other person, he acts at his peril; 
 and if the adverse title is well 
 founded and he resists it, he is liable 
 to an action for the recovery of the 
 goods. If, then, the owner could re- 
 claim the goods at the hands of the 
 carrier, after their delivery to him, 
 and that would excuse a non-deliv- 
 ery to the depositor, it is clear that 
 he would be justified in refusing to 
 receive them from one having a 
 wrongful possession, although at the 
 time of such refusal he might not 
 know the manner in which they had 
 been obtained. So a carrier is in all 
 oases entitled to demand the price of 
 carriage before he receives the goods, 
 and. If not paid, he may refuse to 
 take charge of them. Story on 
 Bailm., sec. 586; 5 Barn. & Aid. 353; 
 4 id. 32; 8 Bos. & Pull. 48; and Whit, 
 on Liens, 92. If, then, a common 
 carrier may demand payment for 
 carriage in advance, and if he may 
 reject goods offered by a wrong-doer, 
 or by one having no authority to do 
 so, is he not bound to take care that 
 the person from whom he receives 
 
 558 
 
CH. X.J 
 
 COMPENSATION AND LIEN OF CAEEIEE. 
 
 [§ 555. 
 
 as for transportation, or for work to be done upon it, the 
 owner can follow and reclaim it in the possession of any 
 person, however innocent," was the language of Fletcher, J., in 
 
 I them has authority to place them in at New York were sold to the plaint- 
 
 his custody? 
 
 "In Story on Bailni., sec. 585, it is 
 said: A carrier having once ac- 
 quired the lawful possession of goods 
 for the purpose of carriage is not 
 bound to restore them to the owner 
 again unless his due remuneration 
 be paid; evidently presupposing the 
 goods to have been delivered to him 
 by the owner; and cites 9 Johns. 17; 
 3 Johns. Cases, 9. In Lemprier v. 
 Pasley, 2 T. R 485, it was held that 
 goods wrongfully delivered to the 
 person claiming them, who paid 
 freight and other chai-ges, could not 
 be detained for those expenses 
 against the rightful owner. In 3 
 Kent's Com. 638, it is laid down that 
 possession is necessary to create the 
 lien, but though there be possession 
 of goods, a lien cannot be acquired 
 when the party came to that pos- 
 session wrongfully. So, if the party 
 came to the possession of goods 
 ■ without due authority he cannot set 
 upalien against the owner. 3 Kent's 
 Com. 638; 5 T. R 604; 4 Esp. R 174; 
 7 East, 5. In Buskirk v. Purington, 
 2 Hall R 561, property was sold upon 
 a condition; the buyer failed to com- 
 ply with the condition, but shipped 
 the goods on board the vessel of the 
 defendants. The owner claimed the 
 goods, demanded them, and, on de- 
 fendants' refusal to deliver them, 
 brought trover for their value. The 
 defendants insisted on their right of 
 hen tor the freight, but the plaintiff 
 was allowed to recover. In Saltus 
 V. Everett, 30 Wend. 375, the master 
 of a vessel, with whom the defend- 
 ant in error shipped goods from New 
 Orleans to New York, durmg the 
 voyage made a new bill of lading in 
 his own name as owner. The goods 
 
 iff in error, who was ignorant of the 
 shipmaster's fraud. The owner (the 
 defendant in error) sued the pur- 
 chaser for their value, or return. 
 Senator Verplanok, in the opinion 
 which he delivered in the court of 
 errors, held this doctrine: 'The uni- 
 versal and fundamental principle of 
 our law of personal property is, that 
 no man can be divested of his prop- 
 erty without his own consent; and, 
 consequently, that even the honest 
 purchaser, under a defective title, 
 cannot hold against the true pro- 
 prietor.' And again, '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 could be concluded 
 by a bill of lading not given by him- 
 self, but by some third person, er- 
 roneously or fraudulently.' Id. 281. 
 ' If the owner lose his property, or is 
 robbed of it, or it is sold, or pledged 
 without his consent, by one who has 
 only a temporary right to its use, by 
 hiring or otherwise; or a qualified 
 possession of it, for a specific pur- 
 pose, as for transportation or for 
 work to be performed upon it, the 
 owner can follow and reclaim it in 
 the hands of any person, however in- 
 nocent.' Id. 283. . , . 
 
 " Finally, on a full and careful con- 
 sideration of this case, we arrive at 
 the following conclusions: 1. That a 
 common carrier is bound to receive 
 and carry goods, only, when offered 
 for carriage by their owner or his 
 authorized agent, and then only 
 upon payment for the carriage in 
 advance, if required. 3. If a com- 
 mon carrier obtains the possession 
 of goods wrongfully, or without the 
 consent of the owner, express or im- 
 
 557 
 
§ 550.] CAEEIEES. [part V. 
 
 Eohinson v. Balccr} The rule, however, would be different 
 where the consignor of the property had apparent authority 
 from the owner to ship the goods, for in such case the carrier 
 would have the right to look to the owner for his charges for 
 carriage; the relation of debtor and creditor would be created, 
 and the carrier would have a lien on the goods for its charges. 
 The same principles would apply as in cases of agency.^ 
 
 § 556. For what charges will the lien attach. In the ah 
 sence of an express contract the lien of the carrier will attach 
 to secure the payment of all the reasonable charges for the 
 transportation of the particular goods shipped from the point 
 of shipment to the place of delivery. This would include not 
 only the freight charges over the initial carrier's line, but, in 
 case of through shipment over the several different lines, the 
 charges advanced by each connecting carrier to the carrier from 
 whom it received the freight, together with the charges over 
 its own line or lines, so that the last carrier would be entitled 
 to a lien upon the goods shipped for the freight charged for 
 the shipment over its owr. line, together with the advances 
 made for freight and charges over r.he lines from which he 
 received the goods ; and the same rule would apply to the car- 
 riage of "reight by water. If the way-bill, however, which 
 accompanied the freight shows that certain of the charges have 
 been paid, the connecting carrier is held to a knowledge of 
 that fact and cannot have payment of the same charges, by 
 him advanced, protected by a lien. But where there is no 
 joint tariff arrangement — no freight rate agreed upon be- 
 tween connecting carriers, and the ipitial carrier guarantees a 
 certain through rate, which is less, than the amount charged 
 by connecting carriers, and the last carrier who receives the 
 freight advances the charges to the carrier from whom he re- 
 ceives it, which amount added to his own freight charges makes 
 
 plied, and, on demand, refuses to de- ment of the debt sought to be en- 
 liver them to the owner, such owner forced by the lien." 
 may bring replevin for the goods, or 1 5 Cush. (Mass.) 141, 51 Am. Den. 
 trover for their value. 3. To justify 54, citing Saltus v. Everett, 20 
 a lien upon goods for their freight, Wend. (N. Y.) 375, and discussing 
 the relation of debtor and creditor Yorke v. Grenaugh, 2 Ld. Eaym. 867. 
 must exist between the owner and ^York Co. v. 111. Cent. Ry. Co., 3 
 the carrier, so that an action at law Wall. (U. S.) 107; Hutch, on Carriers 
 might be maintained for the pay- (3d ed.), sees. 490, 491. 
 
 558 
 
CH. X.] COMPENSATION AND LIEN OF CAEEIEK. [§ 557. 
 
 an amount exceeding that agreed upon by the initial carrier, 
 in such case the last carrier will have a lien for the full amount 
 of charges advanced and his own freight added, notwithstand- 
 ing the agreement made by the initial carrier; and if th^ ini- 
 tial carrier had collected the stated through rate, and it was 
 not, enough to cover the charges of connecting carriers, the 
 connecting carriers could charge the difference and enforce a 
 • lien against the property to secure their reasonable charges, 
 even though, as stated, it should exceed the amount guaranteed 
 by the initial carrier. This is upon the theory that the initial 
 carrier is the agent of the owner, or shipper of the goods, and 
 not of the connecting carrier.' In such case, however, the 
 owner, being compelled to pay the difference between the 
 guaranteed amount and the amount charged, would have an 
 action, and raaj"^ recover that difference from the initial car- 
 rier.^ But if there has been a previous agreement by the several 
 connecting carriers by which through shipments and through 
 rates were established, and the goods were shipped and the 
 rate guaranteed according to such agreement, in such case the 
 final carrier would not be entitled to compensation in any 
 greater amount than agreed upon by the initial carrier, because 
 by reason of such agreement the initial carrier would be said 
 to be acting as the agent of the connecting carrier rather than 
 as agent of the shipper.^ 
 
 § 557. The contract for shipment must be fulfilled. — The 
 law will demand that the carrier keep his agreement as to the 
 shipment of goods. He cannot deliver the goods at a different 
 
 1 Schneider v. Evans, 25 Wis. 341; charges advanced by it to a rail- 
 
 Crossan v. New York, etc. Ry. Co., road company vs^hioh transported 
 
 149 Mass. 196. the chattels from the line of the re- 
 
 ^In Detroit, etc. Ey. Co. v. McKen- ceiving company to its own." Moses 
 
 zie, 43 Mioh. 609, it was said: "A v.Porb Townsend S. Ry. Co., 5 Wash, 
 
 contract by a railroad company to St. 595, 33 Pao. 488. And in the 
 
 transport, for an agreed sum. paid in same case it was held " that though 
 
 advance, chattels over its line to a ,a way-bill showing prepayment of 
 
 pomt on the line of another railroad the freight would presumptively af- 
 
 company with which it has no tariff ford information to each connecting 
 
 agreement, does not bind the latter carrier of that fact, such presump- 
 
 company where it has no notice of tion is not conclusiva" 
 the terms of such agreement, and it ' Kvansville, etc. Ry. Co. v. Marsh, 
 
 has a lien on such chattels for its 57 Ind. 507. 
 own freight charges, and for freight 
 
 559 
 
§ 558.] CAEEIEES. [part Y. 
 
 dock, or to another carrier than the one stipulated, if the de- 
 livery results in the loss of the goods, without becoming liable; 
 nor can he demand a larger amount than that stipulated for. 
 In one case " the master of a vessel agreed to deliver a boiler 
 and other property at a specified dock in the city of Alpena, 
 for one hundred dollars. On arriving at the dock he demanded 
 one hundred and fifty dollars, and nine dollars dockage, and 
 refused to deliver the property until payment of said sums. 
 The owners of the property ofi'ered to pay the one hundred 
 dollars and the dockage charges, which offer was refused, and 
 the master landed the property at another dock in the city, 
 instructing the custodian not to deliver the same to the owners 
 except on payment of the one hundi'ed and fifty dollars. The 
 owners demanded the property, delivery was refused, and they 
 brought replevin therefor. Held, that by failing to perform 
 his contract, no lien attached to the property for the freight 
 agreed to be paid. That a partial performance is not suiBcient, 
 unless delivery be dispensed with or prevented by the owners; 
 and that the dockage charges having been paid or tendered, 
 the owners were entitled to the possession of the property, and 
 upon refusal to deliver same, replevin would lie."^ 
 
 § 558. The lien, how lost, satisfied or discharged.— The 
 lien having once attached can be retained in force only by pos- 
 session of the property by the carrier. If possession is volun- 
 tarily surrendered to the consignee or owner, or to any other 
 person not the agent or servant of the carrier, or under his 
 control, the lien is lost. Of course, if the possession is merely 
 given to an agent of the carrier, or to one of the servants, or 
 to a person as custodian for the carrier of the property, the 
 possession does not change, but still remains in the carrier and 
 the lien could not be lost by such a delivery. And then, too, 
 the carrier may surrender a part of the goods to the consignee 
 and hold his lien on the balance for the whole amount of his 
 charges.^ Where a railroad company allowed the owner to 
 
 1 Johnston v. Davis, 60 Mich. 56; charges, but has a like lien for all 
 
 Hill V. Denver, 13 Colo. 35, 4 L. R. A. freight bills paid by it to previous 
 
 376; Evans v. Chicago, etc. Ry. Co., 11 connecting carriers from the initial 
 
 Mo, App. 463. " Held, a common car- point of sliipment." Kew York Cent 
 
 rier has not only the right to hold the Ry. Co. v. Davis, 158 N. Y. 674. 
 
 goods and enforce a lien for its freight ^pyHer v. Bradley, 25 Pa. St 120; 
 
 560 
 
CH. X.J COMPENSATION AND LIEN OF CAEKIEE. [§ 558. 
 
 unload from its cars and place in bins on its premises a con- 
 signment of coal, and to carry away and dispose of a part of 
 it, it was held that the carrier would not lose its lien for its 
 freight and charges upon what remained.' But where the car- 
 rier put his refusal to deliver the goods to the owner upon the 
 ground that they are not in his possession at the place where 
 a demand is duly made, it was held that he waived his lien 
 because the denial of possession excused the owner from mak- 
 ing a tender of the carrier's charges.- And where goods were 
 forwarded to a commission merchant by a steamboat, and were 
 unloaded and placed on the wharf, and the bill of lading sent 
 to the owner, who removed part of the goods without paying 
 the freight, it was held that these facts did not amount to a 
 delivery of the goods nor a waiver of the lien for freight, un- 
 less it was intended, of which a jury is to judge. The court 
 say: "The goods, although put out of the steamboat on the 
 wharf, were still in the possession of the agents of the boat, as 
 it clearly appeared from the testimony; and the act of unload- 
 ing a boat and placing the merchandise on the wharf does not 
 indicate any intention to part with the possession of it until 
 the freight is paid. Indeed, the law is that the officers cannot 
 detain the goods on board the boat until the freight is paid, 
 as the merchant or consignee would then have no opportunity 
 of examining their condition. It was the duty of the carriers 
 to send the bill of lading to the consignee, to apprise him that 
 the goods had arrived and were ready to be delivered, so that 
 he could attend and examine their condition, pay the freight 
 due and take them into his possession. Sending the bill of 
 lading to him, therefore, amounted to nothing more than a 
 communication of the fact that the goods had arrived and an 
 offer to deliver them upon the payment of the freight. ISfo 
 other inference arises from the act; nor could it justly create 
 
 Jeffris V. Pittsburg, etc. R Co., 93 34 N. Y. S. 206; affirmed, 158 N.Y. 674; 
 
 Wis. 250; Potts v. New Yorli:, etc. R N. H. etc. Co. v. Camel, 128 Mass. 
 
 Co., 131 Mass. 455; Chicago, etc. R lOi 35 Am. Rep. 360. 
 
 Co. V. Union Packet Co., 38 Iowa, i Dane et al. v. Old Colony, etc. R 
 
 377. "Delivery of a portion of the Co., 14 Gray (Mass.), 143. 
 
 goods on which the carrier has a lien ^ Adams Ex. Co. v. Harris. 120 Ind. 
 
 for freight does not discharge the 73, 7 L. R A. 214; Vinton v. Baldwin, 
 
 lien on the portion not delivered." 95 Ind. 433; House v. Alexander, 105 
 
 New York Cent & H. R Co. v. Davis, Ind. 109. 
 36 561 
 
§ 558. J CAEEIEES. [PAET V. 
 
 an implication that the delivery of the bill of lading was in- 
 tended to operate as a waiver of the lien for the freight and a 
 delivery of the possession of the goods to the consignee." ^ 
 
 So it would appear that there must be an intention to de- 
 liver the property, and if the consignee should obtain the goods 
 from the carrier by fraud or trick, it could not be held to be a 
 delivery, and in such case the lien w^ould not be lost.^ But a 
 mere mistake upon the part of the carrier in delivering the 
 property, as, for example, believing that the consignee is respon- 
 sible, or that he has other security for the payment of the 
 freight, would invalidate the lien. And where property was 
 shipped over the carrie.'-'s road with directions to deliver it to 
 a dealer at its destination upon his surrendering the bill of 
 lading therefor, but on its arrival, through the negligence of 
 the carrier's agent, he received the goods from the warehouse of 
 the carrier without surrendering or offering to surrender the 
 bill of lading or pay the freight, and afterwards sold it to a 
 hona fids purchaser, it was held that neither the shipper nor 
 the carrier could recover the goods from the bona fide pur- 
 chaser.' And where the carrier delivered the goods to an as- 
 signee for creditors of the consignee, it was held that the hen 
 was not lost. The court say: " A carrier has a lien upon goods 
 and right of detention until the freight is paid. If he parts 
 with the possession out of the hands of himself and his agent 
 he loses his lien upon them. When these goods were assigned 
 they were not only for the general creditors of Pool, but for 
 those who held liens upon the property assigned, so the assignee 
 received the estate to be distributed according to the rights of 
 the parties. He was acting in the trust capacity, and one of 
 the beneficiaries of the trust was the appellant; so the delivery 
 
 'Boggs & Russell v. Martin, 13 suffer loss by the fault or misoonduot 
 
 B. Mon. (Ky.) 339, 243. of a third person, he who first reposes 
 ^Bigelow V. Heaton, 4Denio(N. Y.), the confidence, or by his negligent 
 
 496, 6 HiU (N. Y.), 43. conduct makes it possible for the 
 
 3 Norfolk, etc. Co. v. Barnes, 104 N. loss to occur, must bear the losa' 
 
 C. 35, 5 L. R. A. 611. The court say: This doctrine is recognized in State 
 "We think this case falls withm the v. Lewis, 73 N. C. 138: Vass v. Rid- 
 principle declared in Wilmington & dick, 8!) N. C. 6; State v. Peck, 53M& 
 W. Ry. Co. V. Kitchin, 91 N. C. 39, 284; Hern v. Nichols, 1 Salk. 289." 
 
 ' that where one of two persons must 
 
 5G3 
 
OH. X.] COMPENSATION AND LIEN OF OAEEIEE. [§ 559. 
 
 of the possessiou of the property to the assignee was for the 
 benefit of all of Pool's creditors, including appellant, according 
 to their respective interests." ^ 
 
 Where a cargo of lath, sold by the consignee to the claimant 
 before arrival, was discharged without notice to complainant 
 of any lien or claim for freight and demurrage, it being cus- 
 tomary in the port of New York to discharge cargoes from 
 canal-boats before demanding freight and demurrage, and the 
 laths, as fast as they were discharged, were received by the 
 claimant and transported from the wharf to his lumber yard, 
 some half mile distant, the claim for freight and demurrage 
 against the consignee and shipper being afterwards disputed 
 as to the amount, it was held that, as the delivery was uncon- 
 ditional, the lien had been lost.^ 
 
 §559. Lien satisfied. — The property is held by the 
 
 carrier as security for the payment of his freight and proper 
 charges. It goes without saying, therefore, that if the con- 
 signee pays the freight, or in any way satisfies the carrier for 
 the amount of his claim, the lien will be satisfied. So, if the 
 carrier extends the consignee credit for the freight or takes 
 his note, or accepts other obligations which will be inconsist- 
 ent with an intention to hold the property by virtue of his 
 
 iCaye v. Fabel, Assignee, etc., 49 ties while the railroad company built 
 
 L, R. A. 251. Where a mistake was the tracks and furnished the iron; 
 
 made by the clerks of the carrier on the spur tracks being operated ex- 
 
 aooount of misunderstanding as to olusively by the railroad company, 
 
 the rate of freight upon certain ar- and part of its charges was for plac- 
 
 tioles delivered for shipment by the ing the coal upon spur tracks; it 
 
 shipper afterwards, it was held that being necessary to remove the oars 
 
 the carrier would not be held to the from the spur tracks and move them 
 
 amount given the shipper by mistake, along the main track, thence along 
 
 but that he would be entitled to com- a branch track on the consignee's 
 
 pensation for the regular amount, premises to his docks before the con- 
 
 and would have a lien upon the signee could handle the coal; this 
 
 goods for that amount. Rowland v. being done by an engine and crew 
 
 New York, etc. E. Co., 61 Conn. 103, of the railroad company, which the 
 
 23 Atl. 755. superintendent furnished on request, 
 
 ^Eagan v. A Cargo of Spruce it was held that placing the cars on 
 
 Lath, 43 Fed. 480; affirmed, 31 Fed. the spur tracks was not a delivery of 
 
 830. Where carloads of coal on the coal so as to deprive the railroad 
 
 reaching their destination were company of its lien for freight. N. Y. 
 
 placed on spur tracks on the con- Cent. & H. R. Co. v. Davis, 158 N. Y. 
 
 signee's premises, he furnishing tlie 674, 34 N. Y. Sup. 206. 
 
 563 
 
§ 560.] CAEEIEES. [part T. 
 
 lien, the lien will be held to be void.^ And where the carrier 
 had negligently delayed delivery of the goods so that his lia- 
 bility for damages therefor is equal to or greater than the 
 amount of the freight, it was held that the consignee could 
 maintain replevin without tender of the freight.^ And so the 
 carrier will at all times be excused from liability where the 
 damage is the result of the act of God, the public enemy, or 
 the acts of the shipper; in fact, the limitations upon the liabil- 
 ity of the carrier will be applied ; and if the damage results 
 from any of these causes, it will not defeat the lien or even off- 
 set in an action for the freight.' 
 
 § 560. The lien discharged.— The carrier holds the 
 
 goods to secure him for the payment of the freight and 
 charges. The lien is therefore only to the extent of the amount 
 due the carrier. A payment of this amount, as we have seen, 
 will discharge the lien. It therefore follows that a tender of 
 the full amount of the charges that are due the carrier, and 
 for which he holds the property, would operate as a discharge 
 of the lien. The carrier has no further or other interest in 
 the goods, and whenever the consignee offers by tender to 
 pay this amount the goods must be released. If a tender is 
 made of the amount that is justly due to the carrier, and the 
 carrier should refuse to accept the tender and release the 
 goods, the consignee could recover them by an action of re- 
 plevin, or the amount of their value in trover. 
 
 " It is a general rule of law that where a person holds a lien 
 upon property, a tender by the owner of the property of the 
 amount of the lien will discharge it. In fact, the detention of 
 the goods upon a different and inconsistent ground will be a 
 waiver of the lien. It is a well-settled rule in the law of pledges 
 that if the money for which the goods are pawned be tendered 
 to the pawnee, and he refuses to receive it, he becomes thereby 
 a wrong-doer, and his special property in the chattel is deter- 
 mined. . . . The principle governing the subject is, that 
 tender is equivalent to payment as to all things which are in- 
 cidental and accessorial to the debt. The creditor, by refusing 
 
 iSecord v. Buffalo, etc. Co., 5 R. Co.. 1 Wash. 53; Bancroft v. Pe- 
 Blatch. 535. ters, 4 Mich. 619. 
 
 2 Moran Bros. Co. v. Northern Pao. 3 Gait v. Archer, 7 Grat. (Va.) 307; 
 
 Newhall v. Varges, 15 Me. 314. 
 564 
 
CH. X.J COMPENSATION AND LIEN OF CAEEIEE. [§ 560. 
 
 to accept, does not forfeit his right to the thing tendered, but 
 he does lose all collateral benefits or securities. The instanta- 
 neous effect is to discharge any collateral lien as a pledge of 
 goods or a right of distress. Upon these principles it has been 
 held that if the debtor tender the debt to the pledgee, and he 
 refuse to deliver up the pledge, he is liable, though it be sub- 
 sequently lost, or even forcibly taken from him." ^ 
 
 1 Tiffany v. St Johns, 65 N. Y. 314, (N. S.) 367; Coggs v. Bernard, 2 Ld. 
 318, 32 Am. Rep. 612; Winter v. Coit, Raym. 909; Kortriglit v. Cady, 21 
 7 N. Y. 288; Weeks v. Goode, 6 C. B. N. Y. 366. 
 
 565 
 
CHAPTEE XI 
 
 TERMINATION OF THE CAERIER'S LIABILITY, AND HEREIN HIS 
 LIABILITY AS A WAREHOUSEMAN AND HOW DISCHARGED. 
 
 § 561. Delivery of the goods to the 
 consignee. 
 
 562. The bill of lading. 
 
 563. Rules as to the delivery ap- 
 
 plicable to all carriers. 
 
 564. The requirements of the car- 
 
 rier upon arrival of the 
 goods at destination. 
 
 565. Requiretnents as to delivery. 
 
 566. When the express company 
 
 becomes warehouseman. 
 
 567. Express company's liability as 
 
 warehouseman. 
 
 568. Duty of express com. 
 
 panies when goods refused 
 by consignee. 
 
 569. Goods sent C. O. D. 
 
 570. Where consignee fails to re- 
 
 ceive the goods or refuses 
 to receive them. 
 
 571. Right to inspect the 
 
 goods sent C. O. D. 
 
 573. Carrier may assist in prevent- 
 ing fraud on the part of 
 consignor. 
 
 573. Termination of liability. 
 
 574. Carrier must be reasonably 
 
 diligent in giving notice to 
 consignee. 
 
 575. Must provide suitable place 
 
 for landing and caring for 
 goods. 
 
 § 561. Delivery of the goods to the consignee.— The object 
 
 of the employment on the part of the shipper is, that the goods 
 may be safely carried and delivered to the consignee. The 
 carrier undertakes to do this and so the duty of the carrier is 
 plain. He must carry and deliver the goods to the consignee 
 or his order, and to no one else, at a proper time and at a 
 
 566 
 
 § 576. Notice must be actual, 
 
 and for a removal of goods 
 at a proper time if time 
 fixed. 
 
 577. Contract — Usage — 
 
 Course of dealing. 
 
 578. Usage- — Course of deal- 
 ing. 
 
 579. Consignee cannot prolong lia- 
 
 bility as carrier. 
 
 580. Termination of liability. 
 
 581. Three distinct views. 
 
 582. The Massachusetts rule. 
 
 583. The New Hampshire rule. 
 584 The rule demanding notice to 
 
 consignee. 
 
 585. What will excuse delivery. 
 
 586. Stoppage in transitu. 
 
 587. The law favors the right. 
 
 588. Some requisites to the right 
 
 to exercise stoppage in tran- 
 situ. 
 
 589. How exercised — Notice by 
 
 whom — To whom. 
 
 590. How can the right be de- 
 
 feated. 
 
 591. Lien of the carrier for freight 
 
 has priority. 
 
 592. Stoppage m transitu — Indy 
 
 of carrier — Termination of 
 liability. 
 
CH. XI.] TERMINATION OF LIABILITY WAEEHOUSEMEN. [§561. 
 
 proper place. The liability of a common carrier as an insurer 
 continues until he has so delivered the goods to the consignee or 
 the person lawfully entitled to receive them, or until the hap- 
 pening of that which excuses such delivery and permits him to 
 hold the goods as a warehouseman or deliver them to some 
 other warehouseman. " It is the settled doctrine of England and 
 this country that there must be an actual delivery of the prop- 
 erty to the proper person. . . . And in no other way can 
 the carrier discharge his responsibility except by proving that 
 he has performed such engagement, or has been excused from 
 the performance of it, or been prevented by the act of God or 
 the public enemy." ^ And where the action was for failure of 
 an express company to carry and deliver a package of money, 
 the supreme court of Illinois in their opinion thus forcefully 
 and tersely state the obligations of the carrier : " They (the de- 
 fendant company) became insurers for its safe delivery ; being 
 so, nothing can excuse them from their obligation safely to 
 carry and deliver but the act of God or the public enemy. 
 This rule of the common law, the rigid application of which 
 has given so much satisfaction and security to the commerce 
 of nations, is properly invoked in cases like this."^ 
 
 The supreme court of Illinois, adopting the language of 
 Hutchinson on Carriers,' in the case of Pacific Exjp. Co. v. 
 Shearer, above cited, say : " No circumstances of fraud, imposi- 
 tion or mistake will excuse the common carrier from responsi- 
 bility for a delivery to the wrong person. The law exacts of 
 him absolute certainty that the person to whom the delivery 
 is made is the party rightfully entitled to the goods, and puts 
 upon him the entire risk of mistakes in this respect, no matter 
 from what cause occasioned, however justifiable the deliv- 
 
 ' Southern Exp. Co. v. Van Meter, SHutoh.on Carriers, sec. 344; North- 
 
 17 Fla. 783, 35 Am. Rep. 107: Am. ern Pac. R. Co. v. Commercial Nat. 
 
 Exp, Co. V. Stack, 29 Ind. 37; Price Bank, 128 U. S. 727; Indianapolis, 
 
 V. Oswego, etc. Co., 50 N. Y. 213. etc. R. Co. v. Herndon, 81 111. 143; 
 
 2 U. S. Exp. Co. V. Hutchins, 67 111. Erie Dispatch Co. v. Johnson, 87 
 
 349; Baldwin v. Am. Exp. Co., 23 111. Tenn. 490; Mo. Pac. Ry. Co. v. Heid- 
 
 197, 17 Am. Deo. 190. In Pacific enheimer, 83 Tex. 201; Howard v. 
 
 Exp. Co. V. Shearer, 160 111. 315, 37 L. Old Dominion Co., 83 N. C. 158, 35 Am. 
 
 R. A. 177, it was held "that a carrier Rep. 571; Ela v. Am. etc. Exp. Co., 
 
 is an insurer of the safe delivery of 29 Wis. 611, 9 Am. Rep. 619. 
 the goods to the person to whom 
 they are consigned." 
 
 567 
 
§ 501. J CAKEIEES. [PAET T. 
 
 ery may seem to have been, or however satisfactory the cir- 
 cumstances or proof of the identity may have been to his mind ; 
 and no excuse has ever been allowed for a delivery to the per- 
 son for whom the goods were not directed or consigned." 
 
 Because of this rigid, unalterable rule as to the delivery of 
 the property by the carrier, the carrier will be fully protected 
 in his efforts to avoid mistake or wrong delivery of the goods. 
 He has a right to make thorough investigation, acting at all 
 times in good faith as to the identity of the person claiming 
 the goods. Where goods had been delivered and carried to 
 their destination, and the carrier refused upon demand to de- 
 liver them to the plaintiff, who claimed to be the consignee, 
 coupling the refusal with an offer to deliver the goods if the 
 plaintiff would produce any papers showing ownership or au- 
 thority to receive them, it was held " that it should have been 
 submitted to the jury whether the refusal was qualified, and, if 
 so, whether the qualification was reasonable and was the true 
 reason for not delivering the goods." The court say: "The 
 defendants were bailees of the property, under an obligation to 
 deliver it to the rightful owner. They would have been liable 
 had they delivered the goods to a wrong person. Common 
 carriers deliver property at their peril, and must take care that 
 it is delivered to the right person, for if the delivery be to the 
 wrong person, either by an innocent mistake or through fraud 
 of third persons, as upon a forged order, they will be respon- 
 sible, and the wrongful delivery will be treated as a conver- 
 sion. The duties of carriers may be varied by the differing 
 circumstances of cases as they arise; but it is their duty in all 
 cases to be diligent in their efforts to secure a delivery of the 
 property to the person entitled, and they will be protected in 
 refusing delivery until re asonable evidence is furnished them 
 tliat the party claiming is the party entitled, so long as they 
 act in good faith and solely with a view to a proper delivery."' 
 
 As we have seen, the refusal to deliver the goods must be 
 
 1 MoEntee v. New Jersey Steam- dence is furnished that the party 
 
 boat Co., 4r) N. y. 34, 6 Am. Eep. 38. claiming the goods is the person en- 
 
 In Baltimore & Ohio R. Co. v. Hum- titled, so long as it acts in good faith 
 
 phrey, 59 Md. 390, it was held that and solely with a view to a proper 
 
 " the carrier will be protected in re- delivery," 
 fusing delivery until reasonable evi- 
 
 568 
 
CU. XI.J TERMINATION OF LIABILITY WAEEHOUSEMEN. [§.062. 
 
 in good faith and upon reasonable grounds. If the carrier 
 refuses simply for the reason that he desires to deprive the 
 consignee of the possession of the goods, or for personal rea- 
 sons, or to gratify others, or voluntarily undertakes to retain 
 the property in his possession, he would be liable in an action 
 as for conversion of the property. And so where a carrier re- 
 fused to deliver consigned carloads of freight to the consignees 
 because they entered into a combination to resist the enforce- 
 ment of rules providing demurrage for the unreasonable deten- 
 tion of cars, it was held that the carrier would not be justified.^ 
 
 § 663. The bill of lading. — The usual course of busi- 
 ness in shipping goods, where a bill of lading is delivered to 
 the shipper, has been stated. But by way of illustration it is 
 perhaps proper to recall that subject in connection with the 
 delivery of the goods. In cases where the original bill of lad- 
 ing has been forwarded to the consignee or has been by him 
 indorsed and delivered to a third person, or where the bill 
 of lading has been sent through the bank with draft attached, 
 upon which the shipper at his home bank has received advances, 
 the only security for these advances, and the only real safety 
 of the shipper or his indorsee, is in the rigid rule of law that 
 demands without exception that the carrier shall deliver the 
 goods only to the person to whom they are consigned, and that 
 he will follow explicitly the directions given him in the bill of 
 lading. And so the carrier has the right to demand, and should 
 always demand before delivering the goods, the original bill of 
 lading that was issued at the time of the shipment, in order that 
 he may know that all the conditions have been fulfilled, and 
 that the goods are being delivered to the person legally en- 
 titled thereto. The carrier always assumes the risk, when he 
 delivers the goods, that he has delivered to the person entitled 
 to receive them, and so should require the bill of lading to be 
 produced. 
 
 Where a car of goods was shipped, the shippers consigning 
 them to themselves, and at the same time drawing for the 
 amount of their value by attaching a draft to a bill of lading 
 upon a third party, the carrier delivering the goods without 
 requiring the production of the bill, it was held that the car- 
 
 ' Kentucky Wagon Mfg. Co. v. Railroad Co. et al., 98 Ky. 153, 36 L. E. A. 850. 
 
 569 
 
§ 562.] CAEEIEES. [PAET V, 
 
 rier was liable for the amount of the draft. The court say:' 
 ''■ The agent delivered the car without the bill of lading and 
 witiiout an acceptance of the draft. This he had no right to 
 do. The title to the property remained in the consignors until 
 delivered in accordance with the conditions. Bills of lading 
 are symbols of property, and when properly indorsed operate 
 as a delivery of the property itself, investing the inddrsers with 
 a constructive custody which serves all the purposes of an act- 
 ual possession, and so continues until there is a valid and com- 
 plete delivery of the property under and in pursuance of the 
 bill of lading and to the person entitled to receive the same. 
 There could be no delivery except in accordance with the bill 
 of lading." ^ Ordinarily the owner of the goods may direct 
 their delivery, when there is no bill of lading assigned or in- 
 dorsed, to a lonafide holder; that is, to a person who has in 
 good faith advanced money upon the bill by payment of a 
 draft, or who has accepted a draft attached to the bill of lad- 
 ing. "Where the draft has been paid, or accepted under such 
 circumstances, the goods, to the extent of the amount of the 
 draft, together with the right of possession, have passed to the 
 acceptor or payor of the draft, and the carrier cannot relieve 
 himself of liability until he delivers the goods to such consignee 
 or indorsee of the bill, for in such case the shipper and former 
 owner have constructively delivered the property to such an 
 indorsee. 
 
 Where a bill of lading, by the terras of which the goods are 
 consigned to the order of the consignor, is indorsed in blanlc 
 and negotiated for value as security for a draft drawn by the 
 consignor on a third person, the court held that the carrier has 
 no right to deliver the goods to such third person without pro- 
 duction of the bill of lading or authority from the holder 
 thereof, and the rights of the holder of such draft and bill of 
 lading in good faith and for value against the carrier are not 
 affected by subsequent fraud of the consignor of which said 
 holder had no notice. And where a consignor of grain drew 
 
 1 PaciSo Ry. Co. V. Stern & Spiegle, Heiskell v. Bank, 89 Pa. St. 155; 
 119 Pa. St. 24. ■ Dows v. Bank, 91 U. S. 618; StoUen- 
 
 2 Boatmen's Savings Bank v. West, werok v. Thatcher, 115 Mass. 324; 
 etc. R. Co., 81 Ga. 221 ; Furinan v. Benj. on Sales, § 333. 
 
 Union Pac. Ry. Co., 106 N. Y. 579; 
 
 570 
 
CII 
 
 XI. J TEEMINATION OF LIABILITY — WAEEHOUSEMEN. [§§ 563-4. 
 
 on the consignee with the bill of lading attached, and the con- 
 sio^nee paid the draft with money obtained from bankers on 
 the security of a transfer of the bill of lading to them, the 
 consignee becoming insolvent, the carrier, without demanding 
 the bill of lading, delivering the grain to the consignor, it was 
 held that the carrier was liable to the bankers for the value of 
 the grain, notwithstanding the consignee was largely indebted 
 to the consignor.! g^^ where bills of lading for grain were 
 duly indorsed and pledged to a bank as collateral for a note, 
 and the bank was in the habit of permitting the pledgor to 
 withdraw bills and substitute others for the purpose of allow- 
 ing the pledgor to obtain the freight, and the pledgor withdrew 
 certain bills, presented them to the railroad company, obtained 
 the freight, and returned them to the bank, it was held that 
 the carrier was not liable therefor to the bank.^ 
 
 § 563. Rules as to the delivery applicable to all carriers. 
 The rule requiring delivery of the goods to the proper con- 
 signee is applicable to all common carriers without exception, 
 whether they be carriers by water or by land; whether it be 
 heavy freight or express packages. "All classes of common 
 . carriers are responsible, and equally responsible, for a loss of 
 the goods by delivery of them to the wrong person."' 
 
 § 564. The requirements of the carrier upon arrival of 
 the goods at destination. — The requirements of the carrier 
 upon the arrival of the goods at their destination, and the man- 
 . ner of terminating their liability, varies somewhat, depending 
 upon the kind of carrier that has the goods for carriage ; that 
 is to say, custom and the general course of business has fixed 
 upon the express company the requirement of making a per- 
 sonal delivery in cities and towns of enough importance to 
 warrant sulHcient business so that the company can reason- 
 ably afford messengers to do this work; and in such case the 
 company, by its agents, are expected to find the consignee and 
 deliver the goods, and not wait for him to call for the package 
 after having been notified. But in places where the express 
 
 1 Wells T. Oregon, etc. R. Co., 33 700, 1 Am. Eep. 365, citing Steven- 
 Fed. 51. son v. Hart et al., 4 Bing. 476, 13 E. 
 
 ^Douglassv. People's Bank, 32 Am. C. L. 596; Duff v. Budd, 8 Brod. & 
 & Eng. Cases, 510. Bing. 177, 7 E. C. L. 671; Fletcher v. 
 
 'Winslow V. Railway Co., 43 Vt. American Exp. Co., 15 Am. L. Reg. 31. 
 
 571 
 
§ 565.J CAEKIEKS. [PA£T V. 
 
 companies have no messengers to make personal delivery of 
 packages, they are required to notify the consignee of the ar- 
 rival of the package, and after the consignee has had reason- 
 able time to call and receive the same, the carrier will be- 
 come liable as a warehouseman — the extraordinary liability 
 ceasing. But in case of railroad companies and carriers by 
 water, the requirement is very different. The express compa- 
 nies generally carry small packages of freight; they employ 
 agents who drive their wagons, carry their goods to every part 
 of the city and deliver them to the several consignees. But 
 the railroad or steamship is confined to the particular limits 
 that the water-course or track has made for them. And then, 
 too, they generally carry heavier freight, and it would not be 
 practicable, nor has it ever been required, that thej' should 
 make personal delivery to the consignee, except at their wharves 
 or freight depots. 
 
 As to just what is required of them the authorities are not 
 all in accord. Some of the courts hold that the railroad or 
 steamboat companies are not bound even to send notice to the 
 consignee of the arrival of the freight, but that they may un- 
 load it into their warehouses, or, if in car lots, place the cars 
 where they may be conveniently unloaded, and if not called 
 for within a reasonable time their liability as carriers ceases, 
 and they become liable only as warehousemen; while others 
 courts hold that it is the duty of the carrier to give the con- 
 signee notice (sending notice through the mail is generally 
 sufficient), and after waiting a reasonable time for the con- 
 signee to receive the goods the extraordinary liability of the 
 common carrier ceases, and he becomes liable as a warehouse- 
 man. The several holdings will be discussed later. 
 
 Express Companies. 
 
 " 565. Bequirements as to delivery. — Express companies 
 are required to make personal delivery of the goods intrusted 
 to them for carriage except in cases noted ; and until delivered 
 to the consignee, unless a reasonable excuse for non-delivery 
 exists, the company's liability as a common carrier contiaues. 
 "What effort the agent of the company should make to deliver 
 the goods before their liability as a common carrier will be ter- 
 minated and their liability as warehouseman commence is a 
 
 572 
 
on. XI.] TEEMINATION OF LIABILITY — WAREHOUSEMEN. L§ *J*^5- 
 
 question that has been very much discussed. If the goods are 
 addressed to the consignee and the street number given, it is 
 the duty of the carrier to look for him there, and if found de- 
 liver to him the goods ; but if he is not found, or if no street 
 number is given nor sulBcient address, in such case it is the 
 duty of the carrier to make reasonably diligent efforts to find 
 the consignee and deliver to him the goods. No fixed legal 
 definition can be laid down as to what is reasonably diligent 
 effort; it would vary in each case, and would be governed by 
 circumstances. It can only be said that it must be such an 
 effort as a reasonably prudent man would make under just such 
 circumstances in an important business affair of his own. It 
 therefore follows that it is a question for the jury.^ 
 
 iln Witbeok v. Holland, 45 N. Y. 
 13, where the company was held not 
 to have exercised reasonable dili- 
 gence in finding the consignee, the 
 facts proven vcere that the agent of 
 the company looked in the director}' 
 of the city and did not find the name ; 
 the next day addressed a notice to 
 Martin Whitbeck instead of Wit- 
 beok. Two or three days after he 
 inquired of two men, and afterwards 
 of the city treasurer, if thay knew 
 Martin Whitbeck (not Witbeok). No 
 further efforts were made; tlae pack- 
 age was deposited in the company's 
 safe and afterwards taken by burg- 
 lars. The court say: "It appeared 
 in the present case that the defend- 
 ant had its vehicles by which they 
 carried articles to the consignees in 
 the city of Solieneotady, which had 
 arrived there by rail under contracts 
 with the company for the transpor- 
 tation. This is the usual course of 
 transacting business by such com- 
 panies; were it otherwise, the busi- 
 ness done by these companies would 
 be greatly diminished, as it would 
 be equally advantageous in many 
 oases to have the property trans- 
 ported by the railroad company. 
 When the defendant received the 
 package from the Adams Company 
 
 at New York, consigned to Martin 
 Witbeok, Schenectady, it became lia- 
 ble as carrier for its carriage to 
 Schenectady and its delivery to Wit- 
 beck there, if with reasonable dili- 
 gence he could be found. The per- 
 formance of this entire service was 
 contracted for by its receipt so ad- 
 dressed, and had the defendant re- 
 ceived it from the plaintiff at New 
 York and given him a receipt for its 
 transportation, the obligation to 
 make personal delivery at Schenec- 
 tady would have been incurred. . . . 
 The diligence which the law required 
 of the defendant was such as a pru- 
 dent man would have used in an im- 
 portant business affair of his own. 
 The evidence shows that the defend- 
 ant was so inattentive as to mistake 
 the surname of the consignee. Al- 
 though the package was addressed 
 to Witbeok, all its inquiries were 
 made for Whitbeck. This may have 
 prevented their finding him. It 
 further appeared that its inquiries 
 were confined to a few persons in 
 the vicinity of its place of business, 
 and that by these it obtained infor- 
 mation of other persons of a like sur- 
 name, one of whom was the father 
 of the consignee. Surely inquiry 
 should have been made of these per- 
 
 573 
 
§§ 566, 567.] OAEEIEKS. [PAET V. 
 
 § 566. When the express company becomes warehouse- 
 man. — When the liability of a common carrier ceases ia the 
 case of an express company, and that of a mere warehousemau 
 takes its place, depends entirely upon the efforts used to make 
 a personal delivery of the goods, or upon a refusal of the con- 
 signee to receive them when tendered by the company. The 
 prime and paramount duty of the express company is, to place 
 the property intrusted to it in the hands of the consignee, but 
 no impossible or unreasonable requirements will be laid upon the 
 company; and so when the agents of the company have an- 
 swered all reasonable requirements as to delivering the prop- 
 erty and have failed, and the goods are still in their possession, 
 their extraordinary liability as insurers will cease; they will 
 be permitted to store the goods, and their liability will be that 
 of a warehouseman required to exercise ordinary diligence. 
 
 § 567. Express company's liability as warehouseman. — In 
 this connection it may be said that there are at least two occa- 
 sions when an express company's liability is that of a ware- 
 houseman: (1) When the goods are delivered to it, but not for 
 immediate shipment; something remains to be done before they 
 are sent forward; and (2) when at their destination they can- 
 not for good and sufficient reasons be delivered to the con- 
 signee, or to any person authorized to receive them.' 
 
 sons, and had it been so made, deliv- delayed for further orders as to their 
 ery would have been made and the destmation, or for the convenience 
 loss would never have occurred.'' of the owner, then, during the time 
 1 Barron et al. v, Eldridge et al., 100 of such delay, the liability is that of 
 Mass. 455. The court say: "There- warehouseman. The more stringent 
 sponsibility of a common carrier for liability of a common carrier only 
 goods intrusted to him commences attaches when the duty of immediate 
 when there has been a complete de- transportation arises. It then shifts 
 livery for the purpose of immediate from that of warehouseman, al- 
 transportation. If, without putting though the goods remain unmoved 
 them in transit, the carrier, for his in the storehouse. Whether the re- 
 own temporary convenience, places sponsibility be in one capacity or the 
 them in store, still the liability of a other is seldom a matter of express 
 carrier attaches. The delivery must agreement between the parties. It 
 beforimmediate transportation, and, arises out of the relation which the 
 of course, it cannot be complete if parties sustain, and the duties which 
 anything remains to be done by the the law imposes." Southern Ex. Co, 
 shipper before the goods can be sent v. McVeigh, 20 Grat. (Va.) 264. After 
 on their way. If by the usage and unsuccessful eflEort to deliver the 
 course of business, and especially if goods. Hasse v. Express Co., 94 Mioh. 
 by express request, the sliipment is 133. In Marshall et aL v. Am. Exp. 
 
 574 
 
CH. XI.J TERMINATION OF LIABILITY WAEEHOUSEMEN. [§568. 
 
 § 568. Duty of express companies when goods re- 
 fused by consignee. — While there can be no doubt that after 
 the goods have been properly tendered to the consignee and he 
 has refused to receive them, the status of the express com- 
 pany is that of a warehouseman, the question as to what fur- 
 ther duty devolves upon the company respecting the goods and 
 the parties is one of importance. The goods are in the custody 
 of the express company; it has received them for carriage and 
 delivery to the consignee. Sound judgment and discretion 
 would dictate, and it is certainly the law, that the company 
 would be under obligations to at once notify the consignor of 
 the refusal of the consignee to accept the goods. Good faith 
 and fair dealing, as well as reasonable diligence, would demand 
 this. Ordinarily the presumption is that the consignee is the 
 owner of the goods; that therefore he has the right to control 
 them; but in this case, where he refuses to receive them, this 
 presumption no longer obtains; on the contrary, in such case 
 the carrier would be bound to presume that the consignor is 
 the owner of the property, and therefore the carrier must look 
 to him for further directions as to what shall be done with it; 
 
 Co., 7 Wis. 1, where it appeared that their want of notice. We do not 
 the express company tendered a wish to be understood as deciding, 
 package received for a bank to a or intending to intimate, that it is 
 person in the bank authorized to re- the duty of the bank to keep its 
 ceive it, but after banking hours, vaults and doors open, and persons in 
 and placed his refusal upon the attendance, for the reception of such 
 ground that their vault was locked packages, after the business of the 
 aad the keys were taken away by day is entirely closed. That question 
 the cashier, that the agent of the ex- is not befoie us. In this case the ex- 
 press company placed said package press messenger gained access to the 
 ia the iron safe of the company and counter of the bank, and a properly 
 securely looked it, and that it was authorized agent was present to re- 
 afterwards burglarized and the pack- ceive the packages. If these views 
 age lost, it was held that the express are correct, it follows as a necessary 
 company was not liable as common consequence that the defendants' 
 ■carriers. The court say: "If he was duties as common carriers were dis- 
 the person so authorized by the con- charged, and their liabilities, as such, 
 signee, it was wholly immaterial at an end, and, whatever may have 
 whether the plaintiffs had notice of been their character, as bailees, after- 
 it or not. It was of no consequence wards, we think they were certainly 
 to them who such person was, liable for gross negligence only, and 
 whether the cashier, the teller or the if so, that matter was properly sub- 
 porter. And most certainly the de- mitted to the jury." 
 fendants are not to be affected by 
 
 575 
 
^^; .".GJ.] CAERIERS. [part V. 
 
 but if the consignee is the owner, and the carrier has knowl- 
 edge of that fact, then he may store the goods and notify the 
 consignee of that fact, and further, that they are stored sub- 
 ject to his order, giving him notice of the place where they can 
 be found.' 
 
 § 569. Goods sent C. 0. D. — If the goods are sent 
 
 C. O. D., that is, " collect on delivery," the express company 
 can only terminate its liability by the delivery of the goods to 
 the consignee, or making the necessary effort to do so, and col- 
 lecting the amount claimed by the accompanying instructions 
 and returning the same to the consignor. In such case it is 
 the duty of the company, on receipt of the goods, to at once 
 notify the consignee, and offer to deliver to him the goods on 
 payment of the amount named in the instructions. If the com- 
 pany should deliver the goods without receiving the amount of 
 the collection, it would be liable to the consignor in that sum.- 
 But where, by the terms of the bill of lading, the goods were 
 not to be delivered until the bill should be produced and the 
 price of the goods paid, yet where the consignor, after notice 
 that the goods had been delivered without the production of 
 the bill, and that payment had not been made, drew a draft 
 upon the consignee, took an acceptance thereof and undertook 
 its collection through a bank, it was held that the consignor 
 thereby abandoned the original purpose of requiring payment 
 on delivery, and whether the draft is collected is immaterial.' 
 This course of business is sometimes adopted in the sending of 
 freight by railroad companies; instructions being written in 
 the contract of shipment to deliver the freight upon payment 
 of a certain amount of money. The same course of business 
 and the same rules of law are applicable in such cases as in the 
 case of express companies, with the exception that the railroad 
 company need not deliver the freight personally to the con- 
 signee, but may simply give him notice and collect the amount 
 when the freight is delivered at its office. The same liabihty, 
 however, would be incurred by the railroad company as is in- 
 curred by the express company in such like cases. 
 
 1 American, etc. Exp. Co. v. Wolf, 20 Am. Reg. 227; United States Exp. 
 79 111. 430; Hutchinson on Car., sees. Co. v. Keefer, 59 Ind. 266. 
 
 383, 384. . 3 Southern Ry. Co. v. Kinchen, 103 
 
 2 Murray v. Warner, 55 N. H. 546, Ga. 186; Rathbun v. Steamboat Co., 
 
 76 N. Y. 376. 
 576 
 
OH. XI.] TBEMINATION OF LIABILITY WAEEHOUSEMEN. [§§ 570-1. 
 
 § 570. Where consignee fails to receive the goods or re- 
 fuses to receive them, — It is generally understood that con- 
 signors of C. O. D. goods expect the express companies to hold 
 the goods for a reasonable time if necessary, and to make a 
 reasonable effort to collect the amount due and deliver the 
 goods, even after the consignee has- failed to take the goods 
 when first offered. Under such circumstances there is nothing 
 to be done by the company but to store the goods in their 
 warehouse and for a time await the action of the consignee. 
 In such case the law will not hold the company to the extraor- 
 dinary liability of a common carrier, but merely as a ware- 
 houseman, and such would be its liability if the consignee re- 
 fused the goods; but in any case the carrier should notify the 
 consignor and hold the goods for further instructions.^ 
 
 § 571. Right to inspect the goods sent C. 0. D. — The 
 
 consignee has the right, regardless of the instructions of the 
 consignor, to inspect the goods before accepting and paying 
 for them. For at most it is but the carrying on of a sale of 
 the property ; the carrier company acting for the vendor, or 
 consignor, as his agent. The consignee has the same privilege 
 to inspect the goods that he would have if purchasing thera 
 from a merchant or his clerk. It has been held, however, that 
 the company must follow the instructions of the consignor, and 
 when an inspection was allowed contrary to instructions, and 
 the consignee without cause refused to take the goods and 
 pay the amount, the carrier would be liable to the consignor 
 for damages. And where a package of goods was forwarded 
 by a carrier to be paid for on delivery, it was held that the 
 consignee was entitled to a reasonable opportunity to inspect 
 thera before he accepted them, and that the carrier could 
 afford him reasonable facilities for doing so without making 
 himself chargeable for the price, even if he put them into the 
 hands of the consignee for that purpose and received from him 
 the price as personal security to the carrier that the goods 
 should be returned if not accepted after a reasonable oppor- 
 tunity to examine them.^ 
 
 iRasse v. Express Co., 94 Mich. 133; press Co. v. Darnell, 31 Ind. 30; Mar- 
 Weed V. Barney, 45 N. Y. 344; Zinn shall v. Express Co., 7 Wis. 1. 
 V. Steamboat Co., 49 N. Y. 443; Ex- 2 Lyon & Co. v. Hill & Co., 46 N. H. 
 
 49. 
 37 577 
 
§§ 572, 573.] CAEEIEES. [PAET V. 
 
 § 572. Carrier may assist ia preventing fraud on the part 
 of consignor. — This manner of collection for goods sent by 
 express, or otherwise, cannot be used to perpetrate fraud upon 
 a consignee; and so it has been held that the carrier will be 
 allowed to render assistance to prevent its perpetration; and 
 when it clearly appears on examination of the goods that the 
 consignor is undertaking to commit a fraud upon the consignee, 
 the carrier may at any time before the money has been re- 
 mitted return the amount paid to the consignee, and the goods 
 to the consignor; indeed, it has been held that this is the duty 
 of the carrier. " An express company may receive a parcel to 
 be delivered to the consignee only on payment of the sum di- 
 rected to be collected upon it. And if the consignor forbids 
 the consignee to inspect the contents of the parcel until such 
 payment is made, it is the duty of the company to obey the 
 direction. But if the company should, in violation of the pro- 
 hibition, permit an examination of the contents of the parcel, 
 and the consignee should refuse, without cause, to receive it 
 and pay the sum required, it maj^ be the company would be 
 liable to the consignor for damages. It is unnecessary to con- 
 sider that question in this case. But if an inspection is per- 
 mitted and the contents are found to be valueless, it may be 
 safely declared that the company would not be liable in dam- 
 ages to the party who was guilty of the attempt to defraud 
 the consignee. It is also true that if the consignee should pay 
 the charges, and then, on opening the parcel, should find the 
 contents to be of no value, he would be entitled to recall the 
 money paid at any time before it was paid over to the con- 
 signor. The agent would be liable to refund, if the money re- 
 mained in his hands at the time it was demanded by the con- 
 signee. The illegality of the transaction would be a perfect 
 defense to the company against the consignors. . . . There 
 could be no recovery by the consignors against the express 
 company or the plaintiff. This fraud intended and attempted 
 was a perfect answer to the action." Such is the language of 
 the court in Eerrick v. Oallagher} 
 
 Caeeiees bt Watee. 
 § 573. Termination of liability. — In an early case in Mas- 
 sachusetts (1826), CMckering v. Fowler,^ it was held that "a 
 
 1 60 Barb. (N. Y.) 566, 575. 2 4 Pick. (Mass.) 371. 
 
 578 
 
OH. XI.] TERMINATION OF LIABILITY — WAREHOUSEMEN. [§ 574. 
 
 promise by a master of a vessel to deliver goods to a consignee 
 does not require that he should deliver them to the consignee 
 personally, or at any particular wharf. It is sufficient if he 
 leaves them at some usual place of unloading, giving notice to 
 the consignee that they are so left. If, after such notice, the 
 consignee refuses to receive the goods, it is the duty of the 
 master to take care of them for the owner, unless the consignee 
 is under an obligation to receive them, in which case they will 
 be at his risk." 
 
 Carriers by water are under no obligation to make personal 
 delivery of the goods, and so it would seem that their liability 
 as common carriers can be terminated not only by delivering 
 the goods to the consignee, or the person entitled to them, but 
 by giving to such person a reasonable notice of their arrival 
 and his readiness to deliver them; and after failure on the part 
 of the consignee to collect and receive them and pay the 
 charges; or on his refusal to accept; or, if the person who is 
 entitled to receive the goods cannot be found by the carrier 
 after a reasonably diligent effort has been made to find him, 
 the carrier's extraordinary liability as an insurer would ter- 
 minate and he would be held to the liability of a warehouse- 
 man, liable only for ordinary negligence and required to exer- 
 cise ordinary diligence. If the consignee refuses to accept the 
 goods, or cannot be found, the carrier should notify the con- 
 signor, for in such case it would be presumed that the consignor 
 is the owner of the goods. 
 
 § 574. Carrier must be reasonably diligent in giving no- 
 tice to consignee. — Carriers of whatever kind or nature are 
 required to be diligent in the matter of giving notice to the 
 consignee of the arrival of the goods at their destination, and 
 their readiness to deliver the same, and if negligent in this, 
 and the goods are lost or damaged, the carrier would be liable. 
 Especially must the carrier be diligent and prompt where the 
 property shipped and received is perishable. And so where 
 goods were shipped in Pennsylvania to the city of Chicago, di- 
 rected to the consignee, whose name was placed upon the box, 
 and also the number of his place of business, and on their ar- 
 rival by water a letter was mailed io him without giving his 
 number, and in consequence thereof was returned, and the 
 goods were destroyed by fire, it was held " that the carrier was 
 
 579 
 
§ 575.] 
 
 CAEEIERS. 
 
 [PAET T. 
 
 liable to the owner for a failure to direct the notice to the con- 
 signee at his business house." ' 
 
 § 575. Must provide suitable place for landing and car- 
 ing for goods. — It is said that " by the general usage of com- 
 
 lln Zinn et al. v. New Jersey 
 Steamboat Co., 49 N. Y. 443, the court 
 say: "Common carriers assume not 
 only the safe carriage and delivery 
 of property to the consignee, but also 
 that merchandise and other prop- 
 erty received by them for transpor- 
 tation shall be carried to the place 
 of destination and delivered with 
 reasonable dispatch; and for any 
 unreasonable delay, either in the 
 transportation or its delivery after 
 its arrival at the terminus of the 
 route, they are responsible. Hand 
 V. Baynes, 4 Whart. (Pa.) 304: Raph- 
 ael v. Pickford, 6 Scott Ch. N. R. 478; 
 Blackstock v. N. Y. & E. R. Co., 20 
 N. Y. 48; Black v. Baxendale, 1 
 Exch. 410. The liability of the car- 
 rier to answer for the non-delivery 
 of goods, or the want of reasonable 
 expedition in their delivery, after 
 arrival at the place of their destina- 
 tion, was not controverted upon the 
 trial. The defendant in this action 
 was not bound to deliver the mer- 
 chandise to the consignees at their 
 place of business. A delivery or 
 offer to deliver at the wharf would 
 have discharged the carrier from all 
 responsibility as such carrier. Car- 
 riers by water or railroad are not 
 held to a delivery of goods to the 
 consignees at any place other than 
 at the wharf of the vessel or the 
 railroad station, and a notice to the 
 consignee of the arrival of the goods, 
 and of a readiness to deliver, comes 
 in place of a personal delivery, so 
 far as to release the carrier from the 
 extraordinary and stringent liability 
 incident to that class of bailees. 
 Gibson v. Culver, 19 W. R. 305; 
 Fisk v. Newton, 1 Den. 45; Fenner v. 
 Buff. & St. L. R. Co., 44 N. Y. 505. 
 
 If the consignee is present, the goods 
 may be tendered or delivered to him 
 personally, and he is bound to re- 
 move them within a reasonable time. 
 If he is not present, he is entitled to> 
 reasonable notice from the carrier 
 of their arrival, and a fair oppor- 
 tunity to take care of and remove 
 them. If the consignee is unknown 
 to the carrier, the latter must use 
 proper and reasonable diligence to 
 find him; and if, after the exercise 
 of such diligence, the consignee can- 
 not be found, the goods may be 
 stored in a proper place, and the car- 
 rier will have performed his whole 
 duty, and will be discliarged from 
 liability as a carrier. But for want 
 of diligence in finding the consignee 
 and giving notice of the arrival of 
 the goods, the carrier is liable for 
 the damages resulting from a delay 
 in the receipt of the goods by the 
 consignee, occasioned by such want 
 of diligenca He can only relieve 
 himself from liability by storing the 
 goods, after, by the use of reasonable- 
 diligence, he is unable to find the 
 consignee. Witbeck v. Holland, 45 
 N. Y. 13. A common carrier has not 
 performed his contract as carrier 
 until he has delivered or offered to 
 deliver the goods to the owner, or 
 done what the law esteems equiva- 
 lent to a delivery. Smith v. Nassau 
 & Lowell R. Co., 7 Foster (N. H.), 86; 
 Price V. Powell, 3 Comst. 328. When 
 the consignee is unknown to the car- 
 rier, a due effort to find him is a 
 condition precedent to a right to 
 warehouse the goods, and as notice- 
 to the consignee takes the place of 
 a personal delivery of the goods, and 
 as a due and unsuccessful effort to- 
 find the consignee will alone excuse 
 
 580 
 
OH. XI.] TEEMINATION OF LIABILITY WAREHOUSEMEN'. [§ 5Y5. 
 
 mercial and maritime law a carrier by water must carry from 
 port to port or from wharf to wharf. He is not bound to de- 
 liver goods at the warehouse of the consignee; it is the duty 
 of the consignee to receive his goods out of the ship or upon 
 the wharf." '■ 
 
 While this may, under certain conditions and circumstances, 
 be true, there are times and conditions when the consignee 
 fcannotbe notified in time; when the ship must be unladen be- 
 fore a reasonable time can be given the consignee to appear 
 and receive his goods; and it is held, and there is no serious 
 opposition to the holding, that the ship's master cannot ter- 
 minate the liability of the ship's owner as a common carrier 
 by unloading the goods upon the wharf and leaving them there, 
 unless it is done in compliance with a clearly-established course 
 of business between the parties in relation to the mode of de- 
 livering the goods.^ " A discbarge from the vessel at a proper 
 place, seasonable hour, and upon due notice to the consignee, 
 does not discharge the carrier from all responsibility for the 
 safety of the goods. It may, under some circumstances, be re- 
 garded as a delivery to the consignee, and a performance of 
 the contract of affreightment, so as to discharge the ship- 
 owner from the stringent liability of a carrier; but such cases 
 are exceptional, and as a rule, if for any reason the consignee 
 does not appear to claim the goods, or does not receive them, 
 it is the duty of the carrier to provide a proper place of de- 
 
 the want of such notice, it follows not be regulated or prescribed by 
 
 that if a reasonable and diligent ef- any fixed standard, as the standard 
 
 fort is not made to find the consignee, must shift with the varying circum- 
 
 the carrier is liable for the conse- stances of each case." Westchester 
 
 quence of the. neglect. What is a & Phila. E. Co. v. McElwee, 67 Pa. 
 
 due, a reasonable effort, and what is St. 211. 
 
 proper and reasonable diligence, de- i Dibble v. Morgan, 1 Woods, 406. 
 pends necessarily very much upon ^gtory on Bailm., sec. 545; Os- 
 
 the circumstances of each case, and, trander v. Brown, 15 Johns. (N. Y.) 
 
 in the nature of things, is a question 39; Fisk v. Newton, 1 Denio, 45; 
 
 of fact for the jury, and not of law 3 Kent's Com. 605. In Richardson 
 
 for the court. What would be rea- et al. v. Goddard et al., 23 How. 
 
 sonably sufficient in one place might (U. S.) 28, the court say: " When the 
 
 be entirely inadequate and insuffi- goods are not accepted by the oon- 
 
 oient in another, and the extent and signee, the carrier should put them 
 
 character of the inquiries to be made, in a place of safety, and when he has 
 
 in the exercise of a reasonable dill- so done he is no longer liable on his 
 
 genoe on the part of the carrier, can- contract of aflfreightment." 
 
 581 
 
§ 576.] CAEEIEKS. [PAET T. 
 
 posit, or in case of imported goods, subject to duty, to see 
 that they are in proper custody. The general rule is, and 
 to it there are no recognized exceptions, if the consignee is 
 unable or refuses to receive the goods, the carrier is not at 
 liberty to leave them on the vrharf, but it is his duty to take 
 care of them for the owner. ... It follows that until this 
 is done the liability of the carrier continues. If it be con- 
 ceded that a carrier by vrater may discharge himself from lia- 
 bility by delivering merchandise upon a wharf, with notice 
 to the consignee, the latter is entitled to a reasonable time to 
 remove them, and they are at the risk of the carrier until a 
 reasonable time for such removal has elapsed ; and a right to 
 put the goods in store for the consignee does not exist until 
 the latter has had a reasonable time for their removal." This 
 is the language of the court in Redmond v. Liverj>ool Steam- 
 hoat Go} 
 
 It has been held, and it seems to be in harmony with the 
 weight of authority upon the subject, "that where delivery 
 cannot be made at the point of destination, such prudent care 
 of the goods and their diligent and safe deliver}^, with notice 
 to the consignee or owner, as best comports with the interest of 
 the owner according to the circumstances, will excuse the car- 
 rier; but it devolves upon the carrier to allege and prove such 
 matter of excuse."^ So it would appear that not only is the 
 master of the ship, or the ship's owner, bound to give notice, 
 but he must give reasonable notice so that the consignee can 
 have reasonable time to obtain the goods. And then, too, the 
 goods must be in a suitable condition for removal; so separated 
 from the mass of other goods unloaded that the consignee may 
 select them. It would follow, therefore, that the ship's owner 
 must provide a suitable place for landing and taking care of 
 the goods he carries until they can be delivered to the con- 
 signee. 
 
 § 576. Notice must be actual, and for a removal of 
 
 goods at a proper time, if time fixed. — The notice of the ar- 
 rival of the goods, and of the readiness of the carrier to deliver 
 them, must be an actual notice to the owner or consignee; it 
 would not be sufficient to give a public notice, as by printing 
 
 1 46 N. Y. 578, 583. 48 Ind, 596; Robinson v. Chittenden, 
 
 2 Gi-een, etc. Nav. Co. v. Marshall, 14 N. Y. Super. 133. 
 
 583 
 
CH. XI.J TKEMINATION OF LIABILITY WAEEHOtrSEMBN. [§577. 
 
 in a newspaper or posting in a public place. Then, too, the 
 time for removal must be a proper time; at some time during 
 business hours, and not at night or some unusual time, nor upon 
 a Sunday or national holiday, like the Fourth of July, or Christ- 
 mas or New Year's day. 
 
 §677. Contract — Usage — Course of dealing. — The 
 
 necessity of giving notice of the arrival of the goods may be 
 dispensed with by contract. When this is done the consignee 
 or owner must wait for the arrival of the ship so that he can 
 receive the goods from her port. But it is said that if in such 
 case the master is guilty of gross negligence and exposes the 
 goods to peril, he would still be liable. Such contracts, too, 
 will be strictly construed against the carrier.^ " It is a per- 
 vading rule of the maritime law that the master of a vessel 
 intrusted as carrier with the custody of the property of a dis- 
 tant owner is bound to exercise reasonable care of the goods 
 until delivery pursuant to the contract. This duty of reason- 
 able care for the preservation of the property from loss arises 
 in all situations and in all emergencies. It is in accordance 
 with this general obligation that, in the absence of any special 
 stipulations in the bill of lading, if a cargo be duly landed, on 
 notice to the consignee at the port of destination, and the con- 
 signee fails to appear or refuses to take the goods, the master 
 cannot abandon them, but is responsible for reasonable care of 
 the goods, and must either hold them as bailee or store them 
 on the shipper's account. Where the stipulations of the bill 
 of lading require the consignee to be present and receive the 
 goods as soon as the vessel is ready to unload, and that they 
 shall be at the consignee's risk as soon as landed on the dock, 
 and the consignee is duly notified, and attends in order to ac- 
 cept the goods as landed, and takes more or less charge of 
 them, the stipulation is held to exempt the ship from subse- 
 quent loss or damage. In such cases, as the consignee has due 
 notice of discharge, and accepts the goods, the duty of protect- 
 ing the property is cast by the contract upon him, and the 
 ship is relieved. ... As respects all such stipulations in- 
 serted by the carrier for his exemption from liability, the or- 
 dinary rule is that they are to be strictly construed. They 
 are not to be extended by implication beyond the fair import 
 
 'The Boskenna Bay, 83 Fed. 662; Hutch, on Car., sec. 366a. 
 583 
 
§§ 578, 579.] CAEEIEES. [PAET T. 
 
 or necessary meaning of their terms. Still less do they exempt 
 from negligence or from the duty of ordinary care imposed by 
 law upon the carrier, unless that be expressly stated, or unless 
 the stipulations can otherwise have no effect at all. Thus, a 
 general provision that goods shall be carried at the 'owner's 
 risk ' does not excuse the carrier from the duty of ordinary 
 care. It is well settled in the federal courts that all stipula- 
 tions, indirect as well as direct, inserted by the carrier for ex- 
 emption from loss by his own negligence, are void.'" 
 
 §578. Usage — Course of dealing. — If there be a 
 
 usage well understood and acted upon by the carrier and the 
 consignee to an extent that it may be said that with the parties 
 interested it has come to be a usual course of business to re- 
 ceive the goods at the dock on the arrival of the ship without 
 notice, no doubt such usage and course of business would ex- 
 cuse the carrier. As, for example, where the consignee has 
 his place of business near the dock or landing of the vessel, 
 and has been in the habit of receiving his freight there at her 
 dock for a long time, so that it may be said that it has become 
 to be a long continued course of business, in such case the 
 requirement that the carrier should give him notice would be 
 waived. And where it appeared that "it had been the long 
 continued practice of a manufacturing company to ship its 
 goods daily by a regular line of steamboats consigned to its 
 agent for sale, and it had been part of the regular routine of 
 business of the agent, without notice, to call for and receive 
 the goods upon their arrival each day at the carrier's wharf at 
 the place of destination, and to remove them, a specific notice 
 from the carrier of the arrival of each parcel is not necessary. 
 The duty of the carrier, as such, is performed when the goods 
 are landed at the accustomed place and the consignee has had 
 a reasonable time to remove them. But if the goods are re- 
 ceived upon a holiday, and it has been the usage for the con- 
 signee not to receive goods upon those days, he is entitled to 
 a reasonable time after that day to remove them." ^ 
 
 § 579. Consignee cannot prolong liability as carrier.— 
 The consignee cannot prolong the liability of the common car- 
 rier by inattention to the notice that his goods have arrived 
 
 1 Dixon V. The Surrey, 26 Fed. 791. 
 
 2 Russell Mfg. Co. v. N. H. S. Co., 50 N. Y. 131. 
 
 584 
 
CH. XI.J TEEMINATIOSr 0¥ LIABILITY — WAREHOUSEMEN. [§ 580. 
 
 und await delivery. It is his duty to at once attend to the 
 matter and, at least in a reasonable time, call for the goods, 
 pay the charges and take thera away; or if there are reasons 
 why he should not do so, inform the carrier of the reason. 
 And where the car containing the goods arrived at the car- 
 rier's station, and the consignee received notice of the arrival 
 of the goods the following morning about nine o'clock, and at 
 ten o'clock sent a truck for a load of the goods, which were 
 unloaded at consignee's place of business about three o'clock 
 in the afternoon, the evidence showing that he might have 
 taken away two more loads before the hour of closing with 
 one truck, the court in its opinion said : " The plaintiffs seek 
 to hold the defendant to a strict liability as insurer of the 
 goods. Asking that so rigid a rule be applied to the defend- 
 ant, it is just that the plaintiffs in turn be held to prompt and 
 diligent action. A consignee cannot, after he has notice of 
 the arrival for him of property, defer taking it away while he 
 attends to his other affairs. He may not thus prolong the 
 time during which the carrier shall remain liable as an insurer. 
 That would be to make the carrier a mere convenience for the 
 consignee, without consideration of any kind to the carrier, 
 and yet resting under a great risk. So much time as the con- 
 signee after notice gives to his other business, to the neglect 
 of taking charge of his property and removing it from the cus- 
 tody of the carrier, cannot be allowed to him in estimating 
 what is a reasonable time for him in which, after notice of ar- 
 rival, to take delivery of his goods. He is not to be compelled 
 to leave all other business to take his goods from the hands of 
 the carrier. He may attend first to whatsoever demand of his 
 business he deems the most urgent or the most profitable; but 
 he cannot do this at the hazard and expense of the carrier. It 
 is the duty of the carrier to give notice of arrival; it is the duty 
 of the consignee at once, and with diligence, to act upon this 
 notice and to seek delivery, and to continue until delivery is 
 complete. Either may neglect this his duty; but then the con- 
 sequence of neglect must be borne by him.''^ 
 
 Caeeiees by Kaileoad. 
 § 580. Termination of liability.— The same rigid rule ap- 
 plies to the common carriers by railroad that applies to all 
 
 1 Hedges et al. v. H. R. R. Co., 49 N. Y. 333, 336. 
 585 
 
§ 581.J CAEEIEES. [PAET T. 
 
 others. It is bound to deliver tbe freight to the consignee, or 
 the person lawfully entitled to receive it, and he will not be 
 excused for misdelivery. " There must be an actual delivery to 
 the proper person." But the railroad company, like the carrier 
 by Avater, is not bound to deliver the goods personally to the 
 consignee as is the express company, for reasons which we have 
 before stated. The question that has elicited a great deal of 
 interest in this country, and one as to which the authorities 
 are not in harmony, is, what must the railroad carrier do upon 
 the arrival of the freight at its destination in order to termi- 
 nate its liability as a common carrier? Under what circum- 
 stances can it cease to be an insurer and become simply a 
 warehouseman of whom the consignee or owner can require 
 only ordinary diligence and hold it only for ordinary negligence? 
 
 § 581. Three distinct views. — Upon this question there are 
 in this country three distinct holdings, each giving strong rea- 
 sons for their opinions and each supported by the strongest 
 jurists of our courts. (1) The first, led by the Massachusetts 
 court, holds " that Avhen the transit is ended, and the carrier 
 has placed his goods in the warehouse to await delivery to the 
 consignee, his liability as carrier is ended also, and he is re- 
 sponsible as warehouseman only.''^ 
 
 (2) The second class, led by the New Hampshire court, holds 
 " that merely placing the goods in the warehouse does not 
 discharge the carrier, but that he remains liable as such until the 
 consignee has had reasonable time after their arrival to inspect 
 and take them away in the common course of business."* 
 
 1 Thomas v. Boston R. Co., 10 Met. Chicago, etc. R Co., 40 Iowa, 579, and 
 
 473, 43 Am. Dec. 444; Norway Plains other oases. Georgia: Ga. etc. R. 
 
 Co. V. Boston, etc. R. Co., 1 Gray, 263, Co, v. Thompson, 86 Ga. 337, and cases 
 
 61 Am. Dec. 433; Rice v. Boston R. cited. See also Georgia Code, sec. 
 
 Corp., 98 Mass. 312, and numerous 8070. Missouri: Gashweiler v. Wa- 
 
 other decisions found in the state, bash R. Co., 83 Mo. 112, and many 
 
 See 100 Mass. 453, 145 Mass. 133, and other cases. North Carolina; South 
 
 others. Among some of the states Carolina; Pennsylvania: MoCurty 
 
 following the Massachusetts rule, as v. New York, etc. Co., 30 Pa. St. 447. 
 
 it is called, may be mentioned Illi. Tennessee: East Tenn. etc. R. Co. v. 
 
 nois: Gregg v. Illinois Cent. R. Co, Kelly, 91 Tenn. 699, and other oases. 
 147 111. 550; Chicago, etc. Co. v. Jen- "- Moses v. Boston & M. R. Co., 33 
 
 kins, 103 111. 599. and many others. N. H. 533. This is perhaps the first 
 
 Indiana: Cincinnati, etc. R. Co. v. case that took issue with the Massa- 
 
 McCool, 36 Ind. 140. Iowa: Mohr v. chusetts rula As following this 
 
 586 
 
CH. XI.] TBEMINATION OF LIABILITY WAEEHOITSEMEN. [§582. 
 
 (3) The third class holds that the liability of the carrier con- 
 tinues until the consignee has been notified of the receipt of 
 the goods, and has had reasonable time in the common course 
 of business to take them away after such notification.^ 
 
 §582. (1) The Massachusetts rule. — ^Some of the ablest 
 courts of the Union support this rule, and their opinions are 
 learned and interesting. In Massachusetts the court thoroughly 
 discuss the doctrine in the case of Norway Plains Co. v. Bos- 
 ton, etc. B. Co., above cited, and again it receives attention in 
 the case of Thomas v. Boston R. Co., already cited. In the 
 latter case, following the same theory and doctrine of the 
 former, the court proceed upon the principle that the transpor- 
 tation and the storage of goods must depend upon contracts of 
 very different character, and that although one person or com- 
 pany might render both services, yet the two contracts are 
 different because the liabilities attending each are not the 
 same. The court say : " The proprietors of a railroad trans- 
 port merchandise over their road, receiving it at one depot, or 
 place of deposit, and delivering it at another agreeably to the 
 directions of the owner or consignor. But from the very 
 nature and peculiar construction of the road the proprietors 
 cannot deliver merchandise at the warehouse of the owner, 
 when situated ofif the line of the road, as a common wagoner 
 can do. . . . They can deliver it only at the terminus of 
 the road, or at the given depot where goods can be safel}'^ un- 
 loaded and put in a place of safety. After such delivery at a 
 depot the carriage is complete. But owing to the great amount 
 of goods transported, and belonging to so many different per- 
 sons, and in consequence of the different hours of arrival, by 
 night as well as by day, it becomes equally convenient and 
 
 rule may be noted Alabama, Ver- 16 Mich. 79, 93 Am. Deo. 208; Buck- 
 
 mont, Wisconsin, Kentucky, New ley v. Great Western R Co., 18 Mich. 
 
 Jersey, Louisiana and Kansas. 121; Feige v. Mich; Cent. E. Co., 63 
 
 ' Holding to this doctrine are the Mich. 1 ; Black v. Ashley, 80 Mich, 
 
 courts of New York: McDonald v. 90. Minnesota: Kirk v. Chicago, etc. 
 
 Western R. Co., 34 N. Y. 497. See Co., 39 Minn. 161, and oases cited. 
 
 Angell on Carriers, sec. 813. See also Nebraska: Burlington, etc. Co. v. 
 
 a long hst of cases upon these several Arms, 13 Neb. 69. Ohio: Lake Erie, 
 
 classes collected from New York and etc. Co. v. Hatch, 52 Ohio St. 408. 
 
 other states. 5 Am. & Eng. Ency. Texas has a statute regulating lia- 
 
 ot Law (2d ed.), 266. Michigan: Mo- bility. The Smg'hs/i courts hold with 
 
 MUlan V. Michigan Southern R Co., the third class. 
 
 587 
 
§ 583.] CAEEIEES. [PAET T. 
 
 necessary, both for the proprietors of the road and the owner 
 of the goods, that they should be unloaded and deposited in a 
 safe place, protected from the weather and from exposure from 
 thieves and pilferers; and where such suitable warehouses are 
 provided, and the goods which are not called for on their ar- 
 rival at the place of destination are unloaded and separated 
 from the goods of other persons and stored safely in sucii ware- 
 houses or depots, the duty of the proprietors as common car- 
 riers is, in our judgment, terminated; they have done all they 
 agreed to do; they have received the goods, have transported 
 them safely to the place of delivery, and, the consignee not 
 being present to receive them, have unloaded them and have 
 put them in a safe and proper place for the consignee to take 
 them away, and he can take them at any reasonable time. The 
 liability of the common carrier being ended, the proprietors 
 are by force of law depositaries of the goods and are bound to 
 reasonable diligence in the custody of them, and consequently 
 are only liable to the owners in case of a want of ordinary 
 care." 
 
 § 583. (2) The New Hampshire rule. — The J^Tew Hampshire 
 rule, or the second class, was very learnedly discussed in the 
 case of Moses v. Boston, etc. R. Co., above cited. The courts 
 holdmg to this doctrine proceed upon the theory that the con- 
 signee must have had notification from the consignor that the 
 goods were shipped, and that it becomes his duty to take notice 
 of the general course of business of the carrier; the time of 
 departure and arrival of trains, and when the freight may be 
 expected; holding that the consignee should be given a reason- 
 able time after it has arrived in Avhich to receive it from the 
 caiTier. These courts hold that even while the freight is being 
 unloaded, and while it is in the hands of the common carrier, 
 the same reasons exist for holding the common carrier to the 
 extraordinary liability that existed during the time it was in 
 transit. And in the case cited the court say: "But while it is 
 in the process of unloading, and afterwards while awaiting re- 
 moval, it must be protected from the weather and from depre- 
 dation. Freight is,brought over the road at all hours, by night 
 as well as by day, and the trains must necessarily be more or 
 less irregular in the hours of their arrival. It cannot be re- 
 quired of the consignee to attend at the precise moment when 
 
 588 
 
OH. XI.j TERMINATION OF LIABILITY WAEEHOUSEMEN. [§ 584. 
 
 his goods arrive, to receive and take care of them, and the 
 company cannot discharge themselves from responsibility by 
 leaving them in an exposed condition in the open air. Until 
 the goods have passed out of their custody and control into 
 the hands of the proper person to receive them, they have a 
 duty to perform in the preservation and protection of the prop- 
 erty, even after their responsibility as common carrier is at an 
 end." And again: "The same persons — the servants of the 
 company — continue in the exclusive possession and control of 
 the goods as when they were on their transit, and they are 
 equally shut up from the observation and oversight of all oth- 
 ers. The consignee has had no opportunity to know that they 
 have arrived, and in what condition, and is in no better situa- 
 tion to disprove the fact, or to question any account the serv- 
 ants of the company having them in charge may choose to give 
 of what may happen to them after they are so removed from 
 the cars, or what has happened prior thereto, than before. If 
 purloined, destroyed or damaged by their fraud or neglect 
 subsequently to their removal and before he can have had the 
 opportunity to come for them, he is left to precisely the same 
 proof as if the larceny or injury had occurred while they were 
 actually in transitu." 
 
 §584. (3) The rule demanding notice to consignee. — But 
 the reasoning of these courts does not seem to be satisfactory. 
 Indeed, the very reasoning of the New Hampshire court and of 
 those which follow that class of holdings would seem to be an 
 argument in favor of the rule that justice and fair dealing de- 
 mand that the consignee should have notice of the arrival of 
 the goods, and of the readiness of the carrier to deliver them. 
 And it would seem in these days, the carrying of goods over 
 long distances, and the great increase in railroads and freight- 
 age, would determine the necessity of the rule that the con- 
 signee should receive notice of the arrival of the property. 
 This rule is very ably discussed by Judge Cooley in McMillan 
 V. Mich. Cent. Ry. Co} In the course of the opinion the judge 
 says: " The man who sends his goods by railroad, and who de- 
 sires to receive them as soon as they reach their destination, 
 has commonly no design to employ the railroad company in 
 any other capacity than that of carrier. If any other relation 
 
 1 16 Mich. 79. 
 589 
 
§§ 585-587.] CAEEIEES. [PAET V. 
 
 than that is formed between them, it is one that the law forms 
 upon considerations springing from the usages of business, and 
 having reference to the due protection of the interests of both. 
 The owner wants storage only until he can have time to remove 
 the goods ; and the warehousing is only incidental to the car- 
 rying. Payment for the transportation is payment also for 
 the incidental storage. The owner has been willing to trust 
 to the company as carriers, because the law makes them insur- 
 ers; but he might not be willing to trust them as warehouse- 
 men under a liability so greatly qualified, and in a trust which 
 implies generally a considerable degree of personal confidence." 
 
 §585. What will excuse delivery.— The carrier will, of 
 course, be excused from delivering the goods when they have 
 been lost in transit by reason of the happening of an event 
 which excuses the carrier from liability; as where the loss was 
 occasioned by the act of God, the public enemy, or as the result 
 of the act of the shipper, the inherent nature of the goods, or 
 from public authority. These have all been fully discussed. 
 The carrier will also be excused when the goods have been 
 stopped in transit by the vendor exercising his legal right to 
 do so, and claiming the goods. 
 
 § 586. Stoppage in transitu. — Stopping the goods in tran- 
 sit is a privilege given to the vendor under certain circum- 
 stances, and in some ways is similar to the vendor's lien. In- 
 deed, it has been said " that it is nothing more than an ex- 
 tension of the vendor's common-law lien upon goods for his 
 price, and has no effect of itself upon the contract." ' It is a 
 right peculiarly for the protection of the vendor of the goods. 
 "Where the vendor has sold goods to a vendee and has put them 
 into the hands of the carrier for delivery to the buyer, and 
 then discovers that the buj^er is insolvent, he may repossess 
 himself of the goods, and for this purpose may stop their tran- 
 sit in the hands of the carrier at any time before they are de- 
 livered to the buyer. 
 
 § 587. The law favors the right.— Stoppage of the goods 
 in transit is favored by the law because it is just. It is grounded 
 upon the plain reasons of justice and equity that one man's 
 property shall not be applied to the payment of another man's 
 
 1 Rowley v. Bigelow, 13 Pick. 313; Rogers v. Thomas, 30 Conn. 53; Atkins 
 
 V. Colby, 30 N. H. 154 
 
 590 
 
CH. XI.] TEEMINATION OF LIABILITY — WAEEHOUSEMEN. [§§ 588-9. 
 
 debts. " The right itself is regarded as an extension merely of 
 the lien for the price which the seller of the goods has on them 
 while remaining in his possession; which lien the courts will 
 not permit to be superseded before the vendee, who has be- 
 come insolvent, obtains possession, unless in the meantime the 
 goods have been sold to a person who in good faith has paid 
 value for them, and so would be a loser by his purchase if that 
 were held invalid." ^ 
 
 § 588. Some requisites to the right to exercise stoppage 
 in transitu. — Two conditions must exist in order to give the 
 vendor the right to exercise the privilege of stopping the goods 
 in transit: (1) The goods must have been sold on credit; and 
 (2) the buyer must be insolvent, and the insolvency not known 
 to the seller at the time of selling the goods. 
 
 The right, however, is not defeated or destroyed by part 
 payment of the purchase price, or by the acceptance of a bill 
 of exchange or promissory note for a part of the price.^ The 
 insolvency of the buyer must exist at the time of exercising 
 the right, and it is said it is immaterial that the insolvency 
 existed at the time of the sale of the goods, provided the seller 
 was ignorant of the fact.' If the vendor knew that the buyer 
 was insolvent, he could not avail himself of the right; but if 
 he did not know at the time, and after delivering the goods 
 to the carrier for delivery to the buyer he discovers the fact, 
 he can exercise the right and retake the goods.* 
 
 §589. How exercised — Notice by whom — To whom. — 
 No formal manner of exercising the right is required ; any no- 
 tice, clear and unequivocal, to the carrier who has the goods 
 in his possession and control to withhold the delivery of the 
 . goods to the buyer, stating his claim, and ordering that the 
 goods be either held by the carrier to his own order or re- 
 turned to him, may be sufHcient.^ The notice should be given 
 
 'Loebv. Peters, 63 Ala. 243, 35 Am. O'Brien v. Norris, 16 Md. 123. When 
 
 Eep. 17. insolvency is known at the time of 
 
 ^Feise et aL v. Wray, 3 East, 93; 2 the sale. Fenkhausen v. Fellows, 20 
 
 Addison on Contracts, 188. Nev. 312; Emerson v. Peteler, 35 
 
 »Loeb V. Peters, 63 Ala. 243, 35 Mina 481, 29 N. W. 312, 4 L. E. A. 
 
 Am. Rep. 17. 732. 
 
 ^Farrell v. Richmond Ry. Co., 102 s Allan v. Railway Co., 79 Me. 327; 
 
 N. C. 390, 3 L. R. A. 647; Benedict v. Reynolds v. Railway Co., 43 N. H. 
 
 Sohaettle, 12 OhioSt. 515; Reynolds 580; Howe v. Stewart, 40 Vt. 145; 
 
 V. Boston, etc. R. Co., 43 N. H. 583; Hutchinson, Car. 410. 
 
 591 
 
§ 590.] , CAEEIEES. [PAET V. 
 
 by the vendor of the goods, or his agent, to the carrier who has 
 the goods for transportation and before they are delivered to 
 the buyer. The carrier has the right to know, indeed it is his 
 duty to know, that the notice comes from one having authority, 
 and for that purpose he may make inquiry and investigation, 
 for he would have no right to withhold the delivery of the 
 goods to the consignee upon a notice from one who did not 
 have authority to give it, as from a stranger.^ And where the 
 consignor, after notice to the carrier to hold the goods shipped, 
 unreasonably refused to furnish him with any evidence of the 
 validity of his claim, it was held that such refusal might be 
 construed as a waiver of his right.^ 
 
 § 590. How can the right he defeated. — The right cannot 
 be exercised if the goods have been delivered to the buyer, or to 
 his agent, before the carrier has notice to withhold them. The 
 notice must come to the carrier while the goods are in his con- 
 trol. The carrier's responsibility, it will be seen, is to both the 
 seller and the buyer, or those claiming under him. Should 
 he fail to obey the notice of the buyer, when properly given, 
 he may become liable for the value of the goods; should he 
 obey the notice without the legal right, the liability would be 
 just as great for the assignee or the creditors of the buyer, and 
 if not to these he might be liable to the buyer. 
 
 If the goods have come to the possession of the buyer, then 
 they are out of the control of the carrier and the notice would 
 be too late ; they may have arrived at the place of delivery ; 
 but the question always is, are they still controlled by the 
 carrier ? 
 
 Where a quantity of logs was bargained for and sold to be 
 delivered over a certain dam at the outlet of a lake, thence to 
 be driven by a certain log-driving company to the purchaser's 
 booms and mills, it was held that the right of stoppage in 
 transitu remained in the seller until the logs came into the 
 
 1 The vendor of goods notified an the vendor for conversion. Jones v. 
 agent of the carrier that the vendee Earle, 37 Cal. 630, 99 Am. Dec. 338. 
 had been attached; that the vendor A notice, although it does not con- 
 desired to save the goods, and to de- tain reasons, is held good. Allan v. 
 liver them to any one but the agent Me. Cent. Ry. Co., 79 Me. 327, 9 Atl. 
 of the seller. It vpas held that the 895. 
 
 carrier, who afterwards delivered the '^ AW&n v. Maine Cent. By. Co, 
 
 goods to the vendee, was liable to 79 Me. 327. 
 
 592 
 
CH. XI.] TERMINATION OF LIABILITY WAREHOUSEMEN. [§590. 
 
 actual possession of the buyer at his boom, and the buyer hav- 
 ino' become insolvent in the meantime, although the logs had 
 arrived at the place of delivery, the seller had the right to re- 
 sume the possession of them.' And where the goods were not 
 received by the buyer, but by mortgagees who were in posses- 
 sion of his store when the goods arrived, under a mortgage, 
 and where, at the time of the delivery of the goods shipped to 
 the buyer, " his store and stock were in the possession of an 
 agent who represented several mortgagees whose mortgages 
 were given after the goods were ordered, and under one of 
 which a sale was made at about the da-te of such delivery, and 
 the goods bid in by one of the mortgagees, who remained in pos- 
 session, and from whom and the merchant, who was acting as 
 agent for the mortgagee, the portion of the goods ordered were 
 replevied by the vendor, who claimed the right to stop them 
 in transit," it was held that this was not a delivery to the buyer, 
 and if he was insolvent at the time of purchasing the goods, 
 the vendor's rights were paramount to any acquired at the 
 mortgage sale. The court say : " The mortgagees do not stand 
 in the position of lona fide purchasers of the property ; the 
 right of stoppage could not be divestq^d by a purchase of the 
 goods under the mortgage sale; the transit had not ended un- 
 less there was actual delivery to the buyer." ^ 
 
 An attachment against the buyer, or an execution levied be- 
 fore the actual delivery of the goods, will not defeat the right.' 
 The buyer, being the assignee of the goods, has the right to 
 take them from the carrier at any intermediate point between 
 the shipping point and destination, and if he does so, his pos- 
 session would defeat the right of the seller to stop the goods 
 in transit. Whenever and wherever the goods come actually 
 into the buyer's possession, then and there the right is de- 
 feated.* 
 
 'Johnson v. Eveleth, 93 Me. 306, and the stoppage by the seller to be 
 
 48 L R. A. 50: Shepperd, etc. R. Co. effective must occur between these 
 
 T. Burrows, 63 N.^ J. L. 469, 41 Atl. two points. Hall v. Diamond, 63 N. H. 
 
 695; Neimeyer Lumber Co. v. Bur- 565; Walch v. Blakely, 6 Mont. 194, 
 
 Hngton, etc. R. Co., 54 Neb. 331, 74 3 L. R A. 648, note. 
 
 N. W. 670. When the carrier takes 2 Kingman v. Dennison, 84 Mich, 
 
 possession from the seller as carrier, 608, 11 L. R. A. 347. 
 
 the transit begins; when he divests ' Farrell v. Richmond, etc. Ry. Co., 
 
 himself of possession in such capac- 103 N. C. 390, 3 L. R. A. 647. 
 
 ity to the buyer, the transit ends. * Walch v. Blakely, 6 Mont. 694. 
 38 593 
 
§ 590.] CAEEIEES. [PAET V. 
 
 So an assignment of the bill of lading to a Ijona fide pur- 
 chaser who pays value for the goods will defeat the right.' 
 But the transfer of the bill of lading as collateral security to a 
 previous obligation, without any new consideration advanced, 
 does not constitute such an assignment as will defeat the 
 seller's right to stop the goods. "Nothing short of a lona fide 
 sale of the goods for value, or the possession of them by the 
 vendee, can defeat the vendor's right of stoppage in transitu, 
 and hence it has been held that an assignee in trust for cred- 
 itors of the insolvent vendee is not a purchaser for value, and, 
 consequently, takes it subject to the exercise of any right of 
 stoppage in transitu which may exist againt the assignor.'"' 
 
 A mere i^esale of the goods by the buyer, however, will not 
 defeat the right of the first seller to stop the goods, for it 
 would seem that such a sale would lack the element of deliv- 
 ery; nor would there be any evidence of the right to make 
 delivery of the goods. But in case of an assignment of the 
 bill of lading to a iona fide purchaser which stands for the 
 goods, and may be delivered as the goods, the case assumes a 
 very different phase; the former will not defeat the right, but 
 the latter sale will. "There is no doubt, if the vendee makes 
 a resale of the goods, he makes it subject to the vendor's right 
 to stop the goods in transitu. But this is while the goods are 
 going to the fii'st vendee. After the first vendee has resold them 
 and put them upon their second passage, the transit, between 
 the vendor and his vendee, is at an end. But a resale will not 
 defeat the vendor's right to stop the goods i?i transitu until 
 they have reached their first destination, unless the bill of lad- 
 ing is assigned, or the vendee has anticipated the arrival and 
 taken possession, which he may do, or the vendor consents to 
 the resale."^ 
 
 1 Currie v. Eoulstone, S Overt. 'The language of the court in Eaton 
 (Tenn.) 110; Walter v. Ross, 2 Wash, et al. v. Cook, 33 Vt. 61; Pattison v. 
 (D. C.) 283; Loeb v. Peters, 63 Ala. Culton, 33 Ind. 240, 35 Am. Rep. 199. 
 243, 3o Am. Rep. 17; Becker v. Hall- A sale for unpaid freight to the car- 
 garden, 86 N. Y. 167; Liokbarrow v. rier will not defeat tlie right. Wheel- 
 Mason, 1 Smith's Ld. Cas. 388. ing, etc. R Co. v. Coots, 65 Ohio St. 
 
 '!■ Lesassier v. S. W. Co., 2 Wood. 35; 531 ; Mechem on Sales, 1563; Schmidt 
 
 Pattison v. Culton et al, 33 Ind. 240, v. Steamship Pennsylvania, 4 Fed. 
 
 5 Am. Rep. 199; Harris et al. v. Pratt, 548. 
 17 N. Y. 249. 
 
 594 
 
<)H. XI.J TEEMINATION OF LIABILITY WAEEHOUSEMEN. [§§591-2. 
 
 § 591. Lieu of the carrier for freight has priority.— The 
 
 specific lien of the carrier for freight and storage is prior to 
 the right of the vendee to repossess himself of the goods; ' but 
 it has been held that a clause in the bill of lading by which 
 the carrier has a lien on goods shipped, for arrearage of freight 
 and charges due from the owners and consignee on other goods, 
 ■will not enable the carrier to hold the goods shipped on ac- 
 count of freight due from the vendee on preceding shipments, 
 to the prejudice of the vendor's right of stoppage in transitu. ' 
 That is to say^ while the specific lien for freight and storage 
 on the goods shipped will be given priority over the vendor's 
 right to stoppage in transit, a general lien, though created by 
 written contract, will not have priority, for it is but a claim 
 of no greater dignity or importance than the claims of other 
 creditors.^ 
 
 § 592. Stoppage in transitu — Duty of carrier — Terrai- 
 nation of liability. — So long as goods are in the control of 
 the carrier, the notice of stoppage in transitu may be given, 
 for during all this time the goods are considered to be in tran- 
 sit.' If the goods have been actually or constructively deliv- 
 ered to the vendee, so that the carrier can no longer control 
 them, then the carrier's liability has terminated. But if the 
 
 'Pa. Steel Co. v. Georgia, etc. R. & order that his goods may 'not be ap- 
 
 B. Co., 94 Ga. 636; Ruoker v. Bono- plied to the payment of another 
 
 Tan, 13 Kan. 251, 19 Am. Rep. 84. man's debts,' much less to those of 
 
 ^ Farrell v. Richmond, etc. Co., 103 his agent, to whom he delivers them 
 
 N. C. 390, 11 Am. St. Rep. 760, 3 L. for carriage. Shippers would hardly 
 
 U A. 647; Pa. R Co. v. Am. Oil contemplate that in accepting such 
 
 Works, 136 Pa. St. 485. The court in a bill of lading the well established 
 
 Tarrellv. Railroad Co. say: "The sec- and cherished right of stoppage 
 
 ond defense rests upon the following in transitu was to be made de- 
 
 olause of the bill of lading: 'The pendent upon whether a distant 
 
 several carriers shall have a lien consignee was indebted to the car- 
 
 upon the goods (shipped) for all ar- rier, and the commercial world would 
 
 rearages of freight and charges due doubtless be surprised if it were un- 
 
 by the same owners or consignees on derstood that whenever such a stip- 
 
 •other gooda' The counsel for the de- ulation was imposed upon consignors 
 
 fendant could give us no authority they were in effect yielding up their 
 
 in supportof this defense, and none, lien for the purchase-money and sub- 
 
 vfe think, can be found, to the effect stantially pledging their goods for 
 
 that such a stipulation should be the payment of an existing indebted- 
 
 ■construed to take away this ' highly ness due their agent, the carrier, by 
 
 favored ' and most important right a possible insolvent vendee." 
 ■oi the vendor to preserve liis lien, in 3 Hutchinson on Carriers, sec. 416. 
 
 595 
 
§ 592.] CAEEIEES. [PAET V. 
 
 carrier has the possession and control of the goods, and the 
 
 notice has been given, his duty becomes twofold : to the vendor 
 
 to see that his rights are protected, to the buyer that be shall 
 
 not be unlawfully treated. As we have seen, the right is based 
 
 upon the insolvency of the buyer; if he is solvent, the seller 
 
 has no right to stop the goods, nor has the carrier any right to 
 
 withhold them from delivery. Under such circumstances if 
 
 the carrier is in doubt he has the right and it is his duty to 
 
 insist upon full investigation of all the facts, not only as to the 
 
 question of insolvency, but any other fact that may go to the 
 
 right of the seller to stop the goods, and he may retain the 
 
 property in his possession until he is satisfied. Should he be 
 
 unable to determine the facts, and both the vendor and vendee 
 
 are demanding the goods and threatening to bring actions 
 
 against him to recover them, the carrier would no doubt have 
 
 the right to file a bill of interpleader in an equity court and 
 
 compel the parties to settle the question between themselves. 
 
 And when it has been so settled and he has delivered the goods 
 
 in accordance with the decree of the court, his liability would 
 
 terminate. 
 
 596 
 
PAET SIXTH 
 
 CARRIERS OF PASSENGERS. 
 
 CHAPTER I. 
 
 THE RELATION — WHO ARE PASSENGERS. 
 
 g 593. The relation. 
 
 Who Abe Passengers. 
 
 594 Definition. 
 
 595. The status fixed more or less 
 
 by intention. 
 
 596. Not essential that the person 
 
 should be In the vehicle of 
 the carrier. 
 
 597. Express messengers and mail 
 
 agents. 
 
 598. Mail agents and passengers. 
 
 599. Drovers. 
 
 § 600. Workmen and employees. 
 
 601. Carrier must receive the per- 
 
 son as a passenger. 
 
 602. Persons violating reasonable 
 
 regulations. 
 
 603. Prepayment of fare. 
 
 604. Fraud on carrier. 
 
 605. Termination of the relation. 
 
 606. Passengers on street-oars. 
 
 607. Reasonable regulations. 
 
 608. Must occupy usual place pro- 
 
 vided by the company. 
 
 § 593. The relation. — There is an element that necessarily 
 enters into the relation of carriers of passengers, very materially 
 affecting both the duty and the liability of the carrier, that can 
 in no way be an element in any of the relations thus far con- 
 sidered. It is the passenger's intelligence. In the carrying of 
 inanimate freight tl^e carrier is privileged to store it away 
 as he may see fit, being careful to give it safe and proper 
 carriage, but it is at all times entirely under his control. And 
 so in the carriage of animate freight, as live stock, the carrier 
 or his servants, of necessity, have control of the property. His 
 liabihty, however, is modified, as we have seen, to the extent 
 that the damage might be attributable to the inherent nature 
 of the property or the life of the freight. But where the car- 
 rier is engaged in the carrying of passengers, the modification 
 of his liability must necessarily be very much greater, for the 
 
 597 
 
§ 593.] OAEKIEES OF PASSENGEES. [PAET VI, 
 
 subject of the carriage has more than mere instinct; it has in- 
 telligence, judgment and discretion. And this judgment, intelli- 
 gence and discretion must, of necessity, lessen the control and 
 absolute supervision of the carrier, for the law necessarily re- 
 quires that the passenger should exercise a reasonable intelli- 
 gence, judgment and discretion in avoiding injury; he must use 
 his faculties to shun danger; he must exercise at least ordinary 
 care. And so it follows that the element which resulted in 
 that rule of law, which has been so often mentioned, and which 
 was demanded by public policy, that the liability of the com- 
 mon carrier of goods should be that of an insurer, does not 
 exist in the carrying of passengers. The liability is very much 
 lessened, and very greatly modified. He is not an insurer of 
 the safety of the passenger, but is held to that high degree of 
 diligence which the particular business, surrounded by its dan- 
 gers and demands for skill and care, requires. 
 
 Chief Justice Marshall, in the early case of Boyce v. Anderson^ 
 which was an action for the loss of certain slaves, in discussing 
 this particular phase of the question said: " Can a sound dis- 
 tinction be taken between a human being in whose person an- 
 other has an interest, and inanimate property? A slave has 
 volition, and has feelings which cannot be entirely disregarded. 
 These properties cannot be overlooked in conveying him from 
 place to place. He cannot be stowed away as a common pack- 
 age. Not only does humanity forbid this proceeding, but it 
 might endanger his life or health. Consequently, this rigorous 
 mode of proceeding cannot safely be adopted unless stipulated 
 for by special contract. Being left at liberty, he may escape. 
 The carrier has not and cannot have the same absolute control 
 over him that he has over inanimate matter. In the nature 
 of things, and in his character, he resembles a passenger, not a 
 package of goods. It would seem reasonable, therefore, that 
 the responsibilitj' of the carrier should be measured by the law 
 which is applicable to passengers rather than by that which is 
 applicable to the carriage of common goods." 
 
 As to the distinction between the liability of the carrier of 
 passengers and the liability of the carrier of goods, it has been 
 said: "The latter has neither the power of volition or motion 
 and is completely under the carrier's control. The former is 
 operated upon by moral causes, the latter only by physical; 
 
 1 3 Pet. (U. S.) 151. 
 598 
 
CH. I.J THE RELATION — WHO AEE PASSENGEES. [§§ 594, 595. 
 
 and of necessity this distinction must be kept in vievV in the 
 application of the rule." ^ 
 
 "Who' AEE Passen&bes. 
 
 § 594. Definition. — A passenger is one not a servant of the 
 carrier who by the consent of the carrier, express or implied, 
 is being transported in the vehicle of the carrier from place to 
 place, or who is at a station of the carrier with the intention 
 of at once, or as soon as possible, entering upon such relation. 
 This definition can be said to comprise the general essentials, 
 but it would be diificult to form a definition that would include 
 every essential or circumstance that might in particular cases 
 enter into the determination as to who are legally passengers. 
 It is a status or relation that must be determined in each par- 
 ticular case. 
 
 § 595. The status fixed more or less by intention. — One 
 who is on board the train or vehicle of the carrier, and in the 
 place usually furnished for the conveyance of passengers and 
 is being conveyed, is legally presumed to be a passenger and 
 to have complied with all the essentials necessary or legally 
 required to constitute him a passenger, and should his relation 
 as such be disputed, the burden of proof would be upon the 
 carrier to show that he was not legally a passenger.^ But one 
 who enters the waiting-rooms or passenger-cars or coaches of 
 the carrier without any intention of being transported is not a 
 passenger, but a mere licensee, or a trespasser, depending upon 
 the intention of the person and the privileges granted him. 
 There must be an intention upon the part of the person to be- 
 come a passenger to be conveyed to some place by the carrier, 
 and it is this intention manifested in the direction of becoming 
 a passenger that largely fixes his status. While it is true that 
 .the relation is a contractual relation, it is not necessary that 
 the contract for carriage should be an express contract. It 
 may be implied, and often is, from slight circumstances. The 
 consent of the carrier is presumed from the fact that it is his 
 legal duty to carry all persons who apply, with certain excep- 
 
 ' Clark V. MoDoimell, 4 MoCord (N. ^ iseman v. South Carolina, etc. Co., 
 C), 223; 1 Fetter, Carriers of Passen- 53 S. C. 566. 
 gers, sec. 2; Hutchinson on Carriers, 
 sec. 495. 
 
§ 596.] CAEEIEES OF PASSENGERS. [PAET VI. 
 
 tions; and so it has been held that the contract need not be 
 consummated by the payment of fare, or even by entering the 
 vehicle of the carrier, but may depend largely upon the inten- 
 tion of the person at the time he enters the depot, or the 
 waiting-room, or the car, or the boat, or the vehicle of the car- 
 rier.' 
 
 § 596. Not essential that the person should be in the ve- 
 hicle of the carrier. — One may become a passenger and en- 
 titled to all the privileges and right to be protected as such, 
 even before entering the vehicle of the carrier, provi(^ed, of 
 course, he has the intention of being transported without delay 
 by the carrier. He becomes a passenger often while waiting 
 at the station or waiting-room of the carrier for transporta- 
 tion. A person who goes into the station of the carrier with 
 the lona fide intention of becoming a passenger is entitled to 
 the privileges and the rights of a passenger, at least so far as 
 the safety of his person from abuse or assault or defects in the 
 station, platforms, etc., is concerned.- And where one was " in- 
 jured by the slipping of a gang-plank while attempting to cross 
 it when entering a steamer to take passage, he was regarded 
 as a passenger."' The court say: " It cannot be questioned that 
 a person may become a passenger before the transportation has 
 actually commenced, and before he has entered the carrier's 
 vehicle. In the familiar case of Brlen v. Bennett,^ the defend- 
 ant's omnibus was passing on its journey and the plaintiff made 
 a signal for the driver to stop and take him up. The omnibus 
 was accordingly stopped for that purpose and the door opened, 
 but just as the plaintiff was putting his foot on the step the 
 omnibus was driven along and the plaintiff was thrown upon 
 his face and injured. It was held that the stopping of the 
 omnibus at the plaintiff's request implied a consent to take him 
 as a passenger, and that thereupon in attempting to enter the 
 carriage he had the rights of a passenger. In Shannon v. Bos- 
 ton, etc. Co.^ a person waiting in the station for a passage on a 
 
 1 North Chicago Street Co. v. Will- ' Rogers v. Kennebec S. Co., 86 Me. 
 iams, IJO 111. 375, 52 Am. & Eng. R. 361, 25 L. R. A. 491. 
 Cases. 533. « 8 Car. & P. 724. 
 
 2 Gordon v. Grand St. etc. R. Co., ^VSMe. 52. 
 40 Barb. 546; 2 Wood's Railway Law, 
 1037, 1045. 
 
 600 
 
CH. I.] THE EELATION WHO AEE I'ASSENGEES. [§ 596. 
 
 traia soon to depart was invited by the ticket agent to sit in 
 an empty car standing on the side track while the waiting-room 
 was being cleaned. It was held that she was entitled to the 
 same protection from the company while in this car as if in the 
 regular waiting-room. In either place the person is a pas- 
 senger in the care of the company." ' And where a person had 
 purchased a ticket at the station or depot of defendant com- 
 pany, intending to be a passenger on the cars of the company, 
 and while attending to the checking of her baggage was in- 
 jured by being knocked down by persons engaged in scuffling 
 in one of the passage-ways of defendant's station, it was held 
 that the relation of common carrier and passenger was estab- 
 lished, and the company was required to exercise reasonable 
 care to protect the passenger from injury in the use of the 
 station or depot for the purposes of the journey. And if the 
 passenger uses the usual ways and passages for the purpose of 
 obtaining checks for baggage, and is injured by any dangers 
 existing in or on such ways and passages which are known, or 
 ought to be known, to the servants of the company having 
 charge of such station or depot, or which could have been rea- 
 sonably anticipated by them, and reasonable care has not been 
 exercised to protect the passenger from such dangers, liability 
 exists on the part of the defendant company to respond in dam- 
 ages for such injuries. The court say : "A railroad company 
 is a common carrier, and owes to its passengers the duty of 
 guarding them from assaults and insults from their fellow-pas- 
 sengers and strangers when from a high degree of care the 
 same might have been prevented.^ This duty grows out of and 
 is impliedly a part of the contract between the carrier and the 
 passenger. According to the uniform tendency of adjudica- 
 tions, which we admit as authorities, the carrier owes to the 
 passenger the duty of protecting him from violence, insults and 
 assaults of his fellow-passengers or intruders, and will be held 
 responsible for its own or its servants' neglect in this particu- 
 lar, when, by the exercise of proper care, the acts of violence 
 
 1 Smith V. St. Paul, etc. R. Co., 33 2 Putnam v. Railroad Co., 55 N. Y. 
 Minn. 1, 50 Am. Rep. 550; Warren v. 108; Hendricks v. Railroad Co., 44 
 Fitchburg R, Co., 8 Allen, 327, 85 Am. N. Y. Super. Ct. 8. 
 Deo. 700; Caswell v. Boston, etc. R. 
 Co., 98 Mass. 194, 93 Am. Dec. 151. 
 
 601 
 
§ 597.] CAEKIEES OF PASSEXGEES. [PAET VI. 
 
 might have been foreseen and prevented; and while not re- 
 quired to furnish watchmen or servants sufficient to overcome 
 all force or negligence when unexpectedly happening, yet it is 
 their duty to provide suitable precautions to protect the pas- 
 senger from assaults from any quarter at which they might, 
 reasonably be expected to occur under the circumstances of 
 the case and the conditions of the parties." ^ 
 
 And where a person had purchased a ticket at the ticket 
 office of the carrier, with the intention of becoming a passenger 
 on one of its trains, and had passed through the turnstile pro- 
 vided by the company for that purpose, and not on its depot 
 platform, it was held that the relation of carrier and passenger 
 existed between the parties when the purchaser of the ticket 
 had passed through the turnstile.^ 
 
 § 597. Express messengers and mail agents. — Express 
 messengers are not servants of the carrier company, but are^ 
 as a general rule, the servants of the express company which 
 contracts with the railroad company to carry its goods over 
 their line; but in some cases the railroad company has an 
 express business of its own, in which case the express mes- 
 senger would be the servant of the company and not a passen- 
 ger. Express messengers, as a general rule, are passengers 
 and entitled to the privileges of passengers, but in some cases- 
 the express companies stipulate in their contracts with the 
 railroad or carrier company that they shall be exempted from 
 liability, and with such an exemption so stipulated, and under- 
 stood bj^ the messenger who takes the employment, accepting 
 it with full knowledge of the stipulation, it has been held that 
 the express messenger is not a passenger upon the carrier com- 
 pany's trains.' But where the express messenger has no knowl- 
 
 1 Exton V. Central R. Co., 62 N. J. would hardly seem to be supported 
 Law, 7, 42 Atl. 486, 63 N. J. Law, 356. by authorities to the full extent of 
 
 2 111. Cent. R. Co. v. Treat, 75 111. the statement. 
 
 App. 327. In Chicago & Grand 3 In Baltimore & Ohio R Co. v.. 
 Trunk R. Co. v. Stewart, 77 111. App. Voigt, 176 U. S. 498, it was held 
 66, it was held that "so long as a that an express messenger oocupy- 
 person merely proposing to be carried ing an express car, in charge of ex- 
 js at liberty to change his mind, he press matter, in pursuance of a con- 
 is not a passenger and for an injury tract between the railroad company 
 which he might sustain through the and the express company, is not a 
 negligence of the carrier he must passenger within the meaning of the . 
 seek redress as a stranger." This rule of public policy which denies- 
 
 602 
 
OH. I.] THE EELATION — -VVHO ARE PASSENGEES. [§597 
 
 edge of the stipulation limiting liability, and does not himself 
 agree to such a limitation, he will not be deprived of his rights 
 as a passenger and will be entitled to protection against the 
 negligence of the railroad company or its servants. And, as a 
 general rule, it may be stated that where there is no such lim- 
 itation by contract, express or implied, an express messen- 
 ger carried on a railroad train in the exercise of his business 
 under a contract between a railroad company and an express 
 company is a passenger, and, so far as consistent with his 
 duties, is entitled to protection as such. 
 
 In Brewer v. N. Y. etc. Co.^ the court, in considering the 
 question under discussion, say : "When he," meaning the express 
 messenger, " entered into the service of the express company 
 he assumed the ordinary hazards incident to that business in his 
 relation to that company, but there was no presumption or im- 
 plied understanding that the messenger took upon himself the 
 risks of injury he might suffer from the negligence or fault of 
 the defendant; he was in no sense the employee of the defend- 
 ant, nor could he, without his consent, be subjected to the re- 
 sponsibilities of that relation. He was lawfully in the car, having 
 charge of the property and business there of the express com- 
 pany, under its employment, and although he paid no fare to 
 the defendant, was carried by virtue of no contract made by 
 him personally with the latter, and must have understood that 
 he was there pursuant to some arrangement of his employer 
 
 the validity of contracts limiting the the consequences of its own or its 
 
 liability of the carrier to a passenger servants' negligence to persons trav- 
 
 for negligence, and cannot recover eling upon its trains as messengers or 
 
 of the railroad company for injuries agents of an express company to the 
 
 sustained in a collision, where the same extent as to other passengers, 
 
 contract between the companies ex- although no charge is made for their 
 
 empts the railroad company from fare." Knowlton v. Erie, etc. Co., 19 
 
 such liability, while their own con- Ohio St. 366, 20 Am. Rep. 395. But 
 
 tract, voluntarily entered into as a where the plaintiff was taken into 
 
 condition of employment, assumes the express car by the express mes- 
 
 all such risks, and stipulates that he senger to teach him the business 
 
 will indemnify and hold his employer -without authority of the company, 
 
 harmless from all liability for such the conductor supposing him to be 
 
 accident or injury. In Blair v. Rail- an agent of the company, it was held 
 
 road Co., 66 N. Y. 313, 33 Am. Rep. that he was not a passenger. Union 
 
 55, it was held: " Where there is no Pacific R. Co. t. Nichols, 8 Kan. 505, 
 
 express exemption provided by con- 13 Am. Rep. 475. 
 tract, a railroad company is liable for 1 124 N. • Y. 59, 11 L. E. A. 483. 
 
 603 
 
§ 597.] CAEEIEES OF PASSENGEES. [PAET VI. 
 
 with the defendant, he was not necessarily by that fact charge- 
 able with notice of the provisions in question of the contract. 
 Presumptively he was entitled to protection against personal 
 injury by the negligence of the defendant." ^ 
 
 The test seems to be, Was the person injured lawfully upon 
 the train of the carrier company under a contract, express or 
 implied, that does not make him an employee or servant of 
 the company? And so it has been held that persons who are 
 engaged in business for their own profit and advantage on the 
 carrier's conveyance, with the consent of the carrier, are pas- 
 sengers, and entitled to protection as such from the carrier. 
 And where the plaintiff was keeping bar upon the steamboat 
 of defendants under an agreement by which he was to pay 
 them §200 per month for the privilege and use of the bar, and 
 was also acting as agent for an express company, such com- 
 pany paying defendants a monthly rate for carrying packages 
 and messengers over the route, defendants' route consisting 
 partly of a passage by steamboat and partly of a passage by 
 railway, and plaintiff was injured by defendants' railway engine 
 when on his way to take charge of the bar and the express 
 matter, it was held that the plaintiff sustained the relation of 
 passenger to defendants, and not the relation of employee, the 
 court holding that even as bar-keeper plaintiff was in no sense 
 an emploj'ee of defendants.^ Therefore news-agents, traveling 
 upon the trains of the company to supply passengers with 
 news and paying to the company a stipulated sum, are passen- 
 gers and not employees. Where "a railroad corporation, in 
 consideration of the payment to them by a person of a certain 
 sum of money per year in quarterly instalments, and his agree- 
 ment to supply the passengers on one of their trains with iced 
 water, issued season tickets to him quarterly for a passage on 
 any of the regular trains, and permitted him to sell popped 
 corn on all their trains, it was held that his relation to them, 
 while traveling upon the road under this contract, was that of 
 a passenger and not of a servant." The court say: " Like other 
 season-ticket holders he paid the defendants for the privilege of 
 
 iMo. Pac. R. Co. V. Ivey, 71 Tex. Co., 34 N. Y. 223; Collett v. London 
 409; Blair v. Erie R. Co., 66 N. Y. & N. W. R. Co., 16 Q. B. 984. 
 313; Knowlton v. Western R. Corp., ^Yeoinans v. Navigation Ca, 44, 
 15 N. Y. 444; Sinitla v. N. Y. Cent. R. Cal. 71. 
 
 604 
 
CH. I.J THE KELATION WHO ARE rASSENGEES. [§ 598. 
 
 passing and repassing regularly over the road, and was at lib- 
 erty to go or not, as he pleased. It appears to us that the 
 service which he rendered in furnishing water to passengers 
 was intended as a compensation for some mcrease in his privi- 
 leges. The fact remains that he was traveling on his own 
 business and not on that of the defendants." ' But where the 
 newsboy was upon the train by connivance of the conductor, and 
 without the consent or by contract with the carrier, it was 
 held that he did not sustain the relation of a passenger.^ The 
 same rule, however, would not apply as to street-car compa- 
 nies. In their case the newsboy is on and off the car as he 
 sees fit; he is not considered as a passenger, and is at most a 
 licensee.' 
 
 § 598. Mail agents are passengers. — There seems to be no 
 question but that the mail agents of the United States travel- 
 ing upon railroad trains in charge of mail cars and the United 
 States mail are passengers and entitled to all the protection 
 due to passengers upon the trains of the company; and the 
 courts have gone so far as to hold that this is true even though 
 a mail agent is traveling upon a pass containing a limitation 
 or exemption from liability for damages on account of injuries 
 occurring through the negligence of the company. It of 
 course rests upon that principle which we have already stated, 
 that, where a person is traveling under a contract which does 
 not make him an employee or servant of the company, he will 
 be entitled to that care and diligence which is due to one who 
 is strictly a passenger. 
 
 In Seylolt v. New York E. Co.,^ where " a mail agent was 
 killed by an accident on defendant's railroad while riding upon 
 a pass issued for his use by defendant, upon which was an in- 
 
 iCom. V. Vermont, etc. R. Co., 108 Libby v. Railroad Co., 85 Me. 34. It 
 
 Mass. 7, 11 Am. Rep. 301. is not denied that the defendant 
 
 ^Duff V. Railroad Co., 91 Pa. St. company owed the same degree of 
 
 ■458, 36 Am. Rep. 675. care to this plaintiff (the mail agent) 
 
 ' Philadelphia Traction Co. v, Or- while riding in the passenger car in 
 bann, 119 Pa. St. 37, 13 Atl. 816; charge of the mails that it did the pas- 
 North Chicago Street Car Co. v. senger upon the train. Baltimore & 
 Thurston, 43 111. App. 587; Black- Ohio R. Co. v. State, 73 Md. 36, 6 L. 
 more v. Railroad Co., 38 K S. Q. B. R. A. 706, 18 Atl. 1107; Norfolk, eta 
 ira. R. Co. V. Shott, 93 Va. 34; Gleason 
 
 ^ 95 N. Y. 563, 49 Am. Rep. 75; Gulf, v. Railroad Co., 140 U. S. 485. 
 etc. R. Co. V. WilMon, 79 Tex. 371; 
 
 605 
 
§ 599.] OAEEIEES OF PASSENGBES. [PAET VI. 
 
 dorsement by which it was stipulated that the defendant should 
 be exempt from liability for damages on account of injuries 
 occurring through its negligence," it was held that the stipula- 
 tion exempting the defendant from liability was " unauthor- 
 ized and void," and that although "the decedent received the 
 pass, and was chargeable with the knowledge of its contents, 
 it did not constitute a contract between him and defendant;" 
 that the defendant was under " the absolute duty of carrying 
 the agent in charge of the mails and had no right to impose 
 the condition. Therefore, if the exemption clause was to be 
 considered as a contract, it was void for want of considera- 
 tion." ^ 
 
 § 509. Drovers. — Persons in charge of live stock being 
 shipped over the carrier's road, and riding upon a free pass is- 
 sued by the railroad company on account of the shipment of the 
 stock, are passengers. In Cleveland, etc. E. Co. v.. Curran^ the 
 company "in making a contract for shipment of live stock at 
 a specified rate, without any additional consideration, delivered 
 to the shipper a drover's pass entitling him to go with his stock 
 and to return on a passenger train. In the written agreement 
 for transporting the stock, the holder of the ticket was referred 
 to as riding free to take charge of the stock. On the pass was 
 an indorsement that it was a free ticket, and that the holder 
 assumed all risk of accident, and agreed that the company 
 should not be liable under any circumstances, whether of negli- 
 gence by the company's agents or otherwise, for any injury to 
 his person or property, and that he would not consider the 
 
 1 In Cleveland, etc. R. Co. v. tified the conductor of his presence 
 Ketcham, 133 Ind. 346, 19 L. R. A. on the train, and the conductor has 
 339, it was held that " a railway not learned that he is on the train." 
 postal clerk in the employment of And in Ohio, etc. R. Co. v. Voigt. 122 
 the United States, who is entitled to Ind. 288, it was held that "the rail- 
 ride free while on duty, or when road company is prima fade liable 
 traveling to and from duty, is a pas- fornegligenoe in causing the death of 
 senger entitled to the same care and a postal agent in charge of the mails 
 protection as other passengers while on its trains where the mail oar was 
 returning home from duty, although derailed." Gleason v. Va. etc, R. Co., 
 he is in the postal car assisting in 104 U. S. 434; Houston, etc. R Co. v. 
 handling the mail by request of the Hampton, 64 Tex. 427; McGofBn t. 
 clerk in charge and has not paid or Mo. Pac. R. Co., 103 Mo. 540. 
 offered to pay fare, or exhibited his ^ 19 Ohio St. 1. 
 commission as postal clerk, or no- 
 
 600 
 
43H. I.J THE RELATION WHO AEE PASSENGERS. [§ 599. 
 
 company as common carriers, or liable as such." The court 
 held " that the pass and the agreement for transporting the 
 stock constituted together a single contract, and that the holder, 
 both while going with his stock and returning, was not a gra- 
 tuitous but a paying passenger. That the stipulation in the 
 contract exempting the company from liability for negligence 
 •constituted no defense to an action brought by the shipper for 
 personal injury caused by the negligence of the servants of the 
 <3ompany in the management of its trains, such stipulation 
 being against the policy of the law, and therefore void." The 
 •court in the opinion say: "It is true that common carriers are 
 not insurers of the safety of passengers as they are of goods 
 which they undertake to carry ; but the principle of law which 
 forbids their being allowed to exempt themselves from liability 
 for the consequences of their negligence in respect to goods 
 applies with still greater force in the case of passengers. The 
 ■common law has a peculiar regard for human life; and for 
 this reason exacts a greater degree of care in respect to it than 
 in relation to any matter of mere property. Carriers of the 
 ■class of the plaintiff in error are creatures of legislation, and 
 derive all their powers and privileges by grant from the public. 
 They are created to effect public purposes, as well as to sub- 
 serve their own interest. They are intended, by the law of 
 their creation, to afford increased facilities to the public for 
 the carriage of persons and property, and, in performing this 
 office, they assume the character of public agents, and im- 
 pliedly undertake to employ in their business the necessarjr 
 degree of skill and care. In FMladelphia c& R. R. Co. v. Derby ' 
 it was laid down that, ' when carriers undertake to convey per- 
 sons by the powerful but dangerous agency of steam, public 
 policy and safety require that they should be held to the great- 
 est possible care and diligence. And whether the considera- 
 tion for such transportation be pecuniary or otherwise, the 
 personal safety of passengers should not be left to the sport of 
 
 lUHow. 486; Welch v. Pac. etc. R. 471, 17 Am. Rep. 719; Illinois Cent. R. 
 Co.,100hioSt.65:Chicago,eto.R. Co. Co. v. Beebe, 69 111. App. 363; Law-. 
 V. Winters, 175 111. 393; Maslin v. B. & son v. Railway Co., 64 Wis. 447; Lake 
 O- Co., 14 W. Va. 180, 35 Am. Rep. Shore, etc. R. Co. v. Brown, 133 IlL 
 748; Ohio, etc. Co. v. Selby, 47 Ind. 163. 
 
 607 
 
§ coo.] CAEEIEES OF PASSENGEES. [PAET VI. 
 
 chance or the negligence of careless agents. Any negligence 
 in such cases may well deserve the epithet of gross.' " 
 
 § 600. Workmen and employees. — It seems to be well set- 
 tled that if an employee is traveling in accordance with his 
 employment with the company he will be regarded as an em- 
 ployee. A pertinent question would be, Was he at the time of 
 the injury on duty for the company as their servant or em- 
 ployee ? If so, he is not a passenger but a servant, and is pre- 
 sumed to assume all the risks ordinarily incident to his em- 
 ployment, and should the injury result from the negligence of 
 the servants of the carrier company, that other rule would ob- 
 tain, that the company would not be liable for the injury of 
 one of its servants caused by the negligence of his fellow-serv- 
 ants. So, where one was riding upon a train for the purpose 
 of cleaning snow from the track and was injured by the over- 
 turning of the car in which he rode by reason of an unsuccess- 
 ful attempt of the conductor to remove a snow bank from the 
 track by means of the snow-plough alone aided by the momen- 
 tum of the train, it was held "that a recovery by the plaintiff 
 was precluded by the facts that such overturning of his car 
 was one of the perils of the business which he assumed, and 
 that the conductor and others, whose negligence is alleged, 
 were fellow-servants in the same employment.'" 
 
 A very common and ordinary example demonstrating this 
 rule is found where persons are emploj^ed in loading and un- 
 loading gravel trains and riding back and forth from the gravel 
 pits to the place of depositing the load ; such persons are held 
 to be in the employment of the carrier and are not passengers.* 
 But the rule as to the liability for the injury of employees or 
 workmen who are being transported to and from their work 
 by the carrier company, riding upon a pass, or by consent of 
 the conductor of trains, or persons having charge of the car- 
 rier's vehicles, is not so well settled. There seems to be some 
 conflict among the cases upon this question. A large number 
 of cases hold that such persons while being transported are to 
 
 iHowland v. Milwaukee R. Co., 54 119 Mass. 413; Kumler v. Junction R 
 Wis. 336; Sullivan v. India Mfg. Co., Co., 33 Ohio St. 150. 
 118 Mass. 396; Ladd v. Railroad Co., ^Ohio & M. R. Co. v. Tyndall, 13 
 
 Ind. 366, 74 Am. Dec. 259. 
 608 
 
CH. I.J THE KELATION WHO AEB PASSENGEES. [§600. 
 
 be considered as employees of the company, while others con- 
 tend that they are entitled to be treated as passengers. An at- 
 tempt is made to lay down a rule in which the carrier is to be 
 held liable in such like cases by the court. In the case of 
 Hutchinson v. YorJc, etc. li. Co.^ the court, after holding 
 that the carrier was not liable in the particular case because 
 decedent was engaged in the discharge of his duties to the 
 carrier, say : " It may, however, be proper with reference to 
 this point to add that we do not think a master is exempt from 
 responsibility to his servant for an injury occasioned to Mtw 
 hy the act of "another servant where tlie servant injured was 
 not, at the. time of the injur y,jicting in the service of his master. 
 In such a case a servant is substantially a stranger and entitled 
 to all the privileges he would have had if he had not been a 
 servant." And it would seem that this rule would be a safe 
 one to follow in this class of cases. Without question the em- 
 ployee is not a passenger while engaged in the duties of his 
 employment, but when these duties have ceased and he is be- 
 ing transported by the carrier by reason of a contract w^hich 
 gives to the carrier compensation, or by consent of the carrier 
 because of his relations to the person, and such transportation 
 is not in accordance or along the duty of his employment, it 
 would seem that in such cases the employee would be a pas- 
 senger. As was stated by the court in the case of State v. 
 Maryland R. Co.^ in discussing the conflict of authorities upon 
 this subject: "In whatever else they may differ, these cases 
 all agree upon one principle, and that is this: if the plaintiff is 
 not at the time of the accident engaged in the actual service 
 of the company, or in some way connected with such service, 
 the company is liable for the negligence of its employees ; that 
 because he works daily for the company and is styled its em- 
 ployee, the company is not exempt from liability for the neg- 
 ligence of its other servants at all times and under all circum- 
 stances; that the exemption depends upon the actual service 
 within the scope of his employment." 
 
 So a brakeman on a train which ran daily except Sundays, 
 who was employed and paid by the day, but was not paid on Sun- 
 day unless required for duty on that day, after his day's work 
 was ended on Saturday evening, by the permission of the con- 
 's Eng. Ry. & Canal Gas. 580. « 63 Md. 433, 441. 
 39 609 
 
§ 601.] CAEEIEES OF PASSENGEES. [PAET VI. 
 
 ductor, was returning home to spend Sunday and was permit- 
 ted to travel free, and while riding in a caboose car of a freight 
 train of the company was killed by a collision with another 
 train, caused by the negligence of the employees of the com- 
 pany, in an action for damages it was held that he was a pas- 
 senger and entitled to all the privileges he would have had if 
 he had not been an employee ; that the fact that he was rid- 
 ing on the cars upon an employee's pass did not alter the case. 
 And where an employee who was employed to work upon a 
 bridge of a railroad company, where his contract entitled 
 him to free transportation from his home to the place where 
 his work was to be performed, and from that place back to his 
 home at night when his work was over, was killed by a col- 
 lision with another train caused by the negligence of defend- 
 ant company, in an action against the company it was held 
 that the employee was a passenger while riding upon the train 
 to his home, and entitled to protection as such.^ 
 
 § 601. Carrier must receive the person as a passenger. — 
 While, as we have seen, there must be an intention on the part 
 of the passenger to become a passenger upon the carrier's ve- 
 hicle, there must also be an express or implied receiving of the 
 person as a passenger by the carrier. There need, of course, 
 be no formal receiving or accepting of a person as a passenger 
 upon the train or vehicle, but there must be such circumstances 
 as indicate that the passenger is received, and that the carrier 
 expects and understands that persons occupying or taking ad- 
 vantage of the particular situation are passengers. For ex- 
 ample, the carrier company holds out to the public that they 
 will receive and carry all passengers Avho may apply to them, 
 and to that end they furnish coaches, vehicles and cars at the 
 termini of their routes, and thus invite the public to patronize 
 them, and become passengers over their line, and persons who 
 accept this invitation are presumably accepted by the carrier. 
 There are, however, certain reciprocal duties incumbent upon 
 
 1 McNulty v.?Pa. R Co., 182 Pa. St. where the several cases are collected 
 
 479, 38 L. E. A. 376; Doyle v. Rail- and stated. For full statement of 
 
 road Co., 163 Mass. 66; McDanlels v. rule see Transit Co. v. Venable, 105 
 
 Bailroad Co., 90 Ala. 64; Tex. & Pac. Tenn. 460, 51 L. R. A. 886, and cases 
 
 E. Co. T. Smith, 67 Fed. 524, 31 L. R cited. 
 A. 331. See notes to 31 L. R A. 321, 
 
 610 
 
OH. I.] THE EELATION WHO ABE PASSENGERS. [§ 601. 
 
 the person who seeks to become a passenger and avail himself 
 of the privileges and protection of a passenger ; he must present 
 himself for carriage at the place appointed by the carrier for 
 receiving its patrons, and in the usual manner; he must occupy 
 the usual place upon the carrier's vehicle, train or boat; that 
 is, the place furnished for and usually occupied by passengers. 
 This has been recognized by the courts, and it has been held 
 that where one clandestinely obtains passage by hiding him- 
 self away in the carrier's boat, or occupies an unusual place 
 on the carrier's train, he is not a passenger but a trespasser 
 and not entitled to the protection due to a passenger. And 
 where the holder of a free pass on a railroad goes on at 
 the front platform of the baggage-car next to the tender when 
 the train is in motion, and after it has left the depot, and then 
 tries to open the baggage-oar door, although he is there with 
 the knowledge of the conductor that some one had boarded 
 his train, such person is not a passenger. The court say in 
 such case, " it was also necessary for the plaintiff to prove that 
 the relation of passenger and carrier existed between the de- 
 ceased and defendant. This relation, which was claimed to 
 exist, is a contract relation. A railroad company holds itself 
 out as ready to receive and carry, and is bound to receive and 
 carry, all passengers who offer themselves as such at the places 
 provided for taking passage on its trains, and who takes such ■ 
 passage in the cars provided for passengers. When one so pre- 
 sents himself, the contract relation under which he acquires the 
 rights of a passenger may be either express or implied from the 
 circumstances. If a person goes upon cars provided by the 
 railroad company for the transportation of passengers with 
 the purpose of carriage as a passenger, with the consent, express 
 or implied, of the railroad company, he is presumptively a pas- 
 senger. Both parties must enter into and be bound by the 
 contract. The passenger may do this by putting himself into 
 the care of the railroad company, to be transported, and the 
 company does it by expressly or impliedly receiving him and 
 accepting him as a passenger. The acceptance of the passen- 
 ger need not be direct or express, but there must be something 
 from which it may be fairly implied. One does not become a 
 passenger until he has put himself in charge of the carrier, 
 
 611 
 
§ 602.] 
 
 CAEEIEES OF PASSENGERS. 
 
 [PAET VI. 
 
 and has been expressly or impliedly received as such by the 
 carrier." ' 
 
 § 602. Persons violating reasonable regnlations. — Car- 
 riers of passengers may make reasonable regulations as to the 
 conduct of their business, and persons violating such regula- 
 tions by way of obtaining passage upon their trains or vehicles, 
 as a general rule, will not be considered as passengers. As, for 
 example, railroads generally do not permit persons to ride 
 upon the engine, in express-cars, mail-cars, baggage-cars or in 
 unusual places, or upon their freight trains, without their con- 
 sent; and so, when persons violate these regulations and obtain 
 passage without the consent of the carrier, they are not pas- 
 sengers;^ nor are they even licensees, but are trespassers, and 
 may be ejected. And where a person ran to catch the train 
 as it was starting from the station, and was not seen by any 
 of the trainmen, and, without negligence on their part, was 
 injured while attempting to board the train while moving, it 
 was held that he was not a passenger and the company was 
 not liable.^ Where a person wrongfully boards a freight train 
 which is not used for carrying passengers and remains on it 
 
 1 la Cent. R. Co. v. O'Keefe, 168 111. 
 115, 39 L. E. A. 148; Brioker v. Phil- 
 adelphia & R Co., 133 Pa. St. 1: 
 Webster v. Fitchburg R. Co., 161 
 Mass. 298, 24 L. R. A. 531; 4 Elliott, 
 Railroads, sec. 1581. 
 
 2 Thomas v. Railroad Co., 72 Mich. 
 355; Arnold v. Railroad Co., 83 111. 
 273; Hutch, on Carriers, 538a; Eaton 
 V. Del., L. & W. R Co., 57 N. Y. 383. 
 Railroad companies have the right 
 to make a complete separation be- 
 tween their freight and passenger 
 business. Where this is done, the 
 conductor of a freight train has 
 such general authority only as is in- 
 cidental to the business of moving 
 freight, and no power whatever as 
 to the transportation of passengers; 
 and notice of this limited authority 
 will be implied from the nature and 
 apparent division of the business. 
 When a person not accepted as a 
 passenger, and without the knowl- 
 edge of the railroad company's em- 
 
 ployees, is in a car not provided for 
 passengers, but exclusively devoted 
 to the railway mail service, and with 
 no right to remain there, the com- 
 pany is not liable for injuries re- 
 ceived by him in a collision. Bricker 
 V. Railroad Co., 132 Pa St. 1. In 
 Files V. Boston, etc. R. Co., 149 Mass. 
 204. it was held that "the person 
 who attempts to get into tBe cab of 
 a locomotive engine attached to a 
 freight train on a railroad used ex- 
 clusively for the transportation of 
 freiglit, to ride for his own conven- 
 ience by invitation of the conductor 
 of the train, does not acquire the 
 rights of a passenger and cannot re- 
 cover for personal injuries occa- 
 sioned to him by the starting of the 
 engine, even if he has previously 
 ridden thereon by a similar invita- 
 tion, and has seen others, including 
 railroad employees, do so." 
 
 3 Jones V. Boston, etc. R. Co., 163- 
 Mass. 245. 
 612 
 
OH. I.] THE EELATION WHO AEE PASSBNGEES. [§ 602. 
 
 without the consent of the servants of the company in charge 
 of the train, he cannot claim the right of a passenger; and if 
 injured while thus being carried, the company is not liable un- 
 less the injury was caused by gross or wilful neglect by the 
 servants of the company.^ 
 
 As to whether one can be deemed a passenger who gets 
 upon the company's trains without consent or permit depends 
 somewhat upon the custom of the carrier as to carrying 
 passengers upon such train, as well as upon their regulations 
 forbidding the carriage of passengers. The fact that the con- 
 ductor of a freight train had permitted persons to ride on two 
 or three occasions and had collected fare would not be suffi- 
 cient to show that the train was a passenger train. But a 
 freight conductor's authority to carry passengers might be im- 
 plied from a long course of business of the company in ming- 
 ling its freight and passenger business, and so if for a long time 
 it has been the rule and practice of the company to separate 
 their freight and passenger business, and carry passengers only 
 upon their passenger trains, this custom and practice would go 
 very far toward determining the question as to whether one 
 who had boarded such a train would be a passenger.^ But 
 where one is received upon a freight train, or is permitted to 
 ride in an unusual place upon the passenger train or vehicle of the 
 carrier by permission of those in charge, although he is violat- 
 ing the reasonable regulations of the company, and although 
 he, by reason of the manner of boarding the train or the ve- 
 hicle or continuing to ride in it, is a trespasser, nevertheless 
 the carrier owes to such person, when discovered, a protection 
 
 1 Louisville & N. R. R Co. v. Moss, trains such person is, it is essential 
 
 13 Ky. Law, 684. that such person should be rightfully 
 
 ^Luoasv. Milwaukee R.Co.,'33 Wis. on such train, or should be thereon 
 
 41; Cleveland, etc. R. Co. v. Best, 169 with theknowledgeor consent of the 
 
 111.301. Where "a person was rid- conductor." Woolsey v. Chicago, etc. 
 
 ing upon a locomotive engine of a R. Co., 39 Neb. 798, 25 L. K. A. 79; 
 
 freight train by agreement with the Louisville, etc. R. Co. v. Hailey, 94 
 
 fireman of such engine to shovel coal Tenn. 383, 37 L. R. A. 549: McVeety 
 
 for the privilege of riding (such per- v. St. Paul, etc. R. Co., 45 Minn. 368, 
 
 son being on such train without the 11 L. R. A. 174; McNamara v. Great 
 
 knowledge or consent of the con- Northern, etc. R. Co., 61 Minn. 396; 
 
 ductor in charge thereof), held, not a Can. Pac. R. Co. v. Johnston, Mon- 
 
 passenger, and that to constitute one treal Rep., 6 Q. B. 313 ; Powers v. Bos- 
 
 a passenger of the carrier on whose ton, etc. R. Co., 153 Mass. 198. 
 
 613 
 
§§ 603-605.] OAEEIEES OF PASSENGEES, [PAET TI. 
 
 from injury to the extent at least of ordinary care. It is that 
 care and protection which humanity would demand of the car- 
 rier.^ 
 
 § 603. Prepayment of fare. — Prepayment of fare is not a 
 requisite to becoming a passenger. " It is universally agreed 
 that the payment of the fare, or price of the carriage, is not 
 necessary to give rise to the liability. The carrier may de- 
 mand its prepayment, if he chooses to do so, but if he permits 
 the passenger to take his seat or to enter his vehicle as a pas- 
 senger, without such requirement, the obligation to pay will 
 stand for the actual payment, for the purpose of giving effect 
 to the contract with all its obligations and duties. Taking his 
 place in the carrier's conveyance, with the intention of being 
 carried, creates an implied agreement upon the part of the 
 passenger to pay when called upon, and puts him under a lia- 
 bility to the carrier, from which at once spring the reciprocal 
 duty and responsibility of the carrier." ^ 
 
 § 604. Same subject — Fraud on carrier. — But if the per- 
 son who is seeking transportation undertakes to defraud the 
 carrier and evade the payment of fare, he is not a passenger, 
 nor even a licensee, but a trespasser. And where a passenger 
 boards a train with the deliberate purpose not to pay his fare 
 and adheres to that purpose, or being on the train, and having 
 money with him with which he could pay his fare, falsely and 
 fraudulently represents that he is without means to pay, and 
 in this way, and by means of such false representations, induces 
 the conductor to permit him to remain on the train without 
 paying his fare, it was held that the relation of carrier and 
 passenger and the obligations resulting from that relation 
 were not established.' 
 
 §605. Termination of the relation. — The relation of pas- 
 senger and carrier having been once established is not termi- 
 nated when the passenger alights from the vehicle of the rail- 
 
 1 Whitehead v. St. Louis, etc. Co., App. 533, 537; Chattanooga, etc. E. 
 99 Mo. 263, 6 L. R A. 409; Wagner v. Co. v. Huggins, 89 Ga. 494, 503. 
 
 Mo. Pac. E. Co., 97 Mo. 512, 3 L. R. A. 3 Condran v. Chicago, etc. R Co., 14 
 
 156; Chicago, etc. R Co. v. Frazer, 55 C. C. A. (U. S.) 506, 67 Fed. 523, oit- 
 
 Kan. 583. ing Railroad Co. v. Brooks, 81 111. 
 
 2 Hutchinson on Carriers, sec. 565; 245; Railroad Co. v. Mehlsack, 131 
 Cleveland, etc. R Co. v. Best, 68 111. 111. 64; Way v. Railroad Co., 64 Iowa, 
 
 48, and other cases. 
 614 
 
CH. I.J THE EELATION WHO AEE PASSENGEES. [§ 606. 
 
 way company, but continues while on the premises of the 
 carrier company for a period of time reasonably necessary 
 to enable him to leave the premises, and during this time he is 
 entitled to the protection of the company's . agents and serv- 
 ants, even from the assaults of third persons.^ And so it is 
 held that the relation of carrier and passenger exists when a 
 passenger is obliged to alight from a car to go to another to 
 be carried by the carrier to his destination.^ And where a 
 passenger on a railroad train " alighted by direction of the com- 
 pany, or by its implied invitation, at a place where in order to 
 leave the premises of the company it was necessary to cross 
 intervening tracks, it was held that he remained a passenger 
 until he had crossed such tracks, provided he used the means 
 of egress which the company had provided, or which were 
 customarily used with the knowledge of the company and its 
 consent; " and in such case that " there was an implied agree- 
 ment that the trains of the company should not be so oper- 
 ated as to make the exit unnecessarily dangerous," provided 
 such passenger exercised reasonable care and prudence in avoid- 
 ing danger; that is, such care and prudence as under all the 
 circumstances a reasonably prudent person would exercise.'' 
 
 § 606. Passengers on street-cars. — In determining who 
 are passengers upon the street-cars, we are to apply the same 
 principles already mentioned so far as they are applicable. 
 Street-car companies, unlike railroad companies, do not con- 
 struct and maintain depots and waiting-rooms for their pas- 
 sengers, nor do they, except in cases of suburban lines, main- 
 tain ticket ofiBces, but passengers are expected to board the 
 cars from the street wherever they stop, and to pay their fare 
 to the conductor or person in charge. Once on board the car 
 and in the place for passengers with the intention of being car- 
 ried, and complying with the reasonable regulations of the 
 company, the person is presumed to be, and is, a passenger dur- 
 ing the time he is thus being conveyed. And so where a news- 
 boy boarded a street-car without signaling it to stop, for the 
 
 'Tex. & p. Ry. Co. V. Dick, 63 S. W. Railway Co. v. Coggins, 32 C. C. A. 
 
 895. 1^ 88 Fed. 455; Railway Co. v. Low- 
 
 2 Chicago & A. Ry. Co. v. Winters, ell, 151 U. S. 209; Warner v. Rail- 
 
 175 111. 293. 51 N. E. 901. way Co., 168 U. S. 339; Graven v. 
 
 "Chesapeake, etc. R. Co. v. King, MacLeod, 35 C. C. A. 47, 93 Fed. 846, 
 
 99 Fed. 251, 40 C. C. A. 432, citing and other cases. 
 
 615 
 
§ 606.] CAEEIEES OF PASSENGEES. [PAET VI. 
 
 purpose of selling papers, and jumped off again, he was held 
 not to be a passenger so as to charge the company with special 
 care to avoid injuring him, and this though he intended to pay 
 fare if the conductor asked him for it.' When a passenger 
 alights from the car upon the street, the relation of passenger 
 ceases, for he is not upon the premises of the company, nor is 
 there any implied obligation or duty upon the part of the com- 
 pany to provide or maintain the place of alighting. " The 
 street," say the supreme court of Massachusetts, " is in no sense 
 a passenger station for the safety of which a street-railway 
 company is responsible. When a passenger steps from the 
 car upon the street, he becomes a traveler upon the highway 
 and terminates his relation and rights as a passenger, and the 
 railway company is not responsible to him as a carrier for the 
 condition of the street, or for his safe passage from the car to 
 the sidewalk. When a common carrier has the exclusive oc- 
 cupation of its tracks and stations, and can arrange and man- 
 age them as it sees fit, it may be properly held that persons 
 intending to take passage upon, or leave, a train have the re- 
 lation and rights of passengers in leaving or approaching the 
 car at a station. But one who steps from a street-railway car 
 to the street is not upon the premises of the railway company, 
 but upon a public place where he has the same rights with 
 every other occupier, and over which the company has no con- 
 trol. His rights are those of a traveler upon the highways 
 and not of a passenger."^ 
 
 So where a passenger was injured after leaving the car, in 
 attempting to pass behind it, by falling over a fender which 
 had becoine disarranged without the knowledge of the com- 
 pan}^ and was projecting from the rear of the car, it was held 
 that she could not recover. The court say: "It is admitted 
 that when the plaintifi' left the car she ceased to be a passenger 
 of the defendant. When she began to walk toward her house 
 she was merely a traveler upon the highway. The respective 
 rights and duties of the plaintiff and the defendant were not 
 those of a passenger and a common carrier, but those of a 
 
 1 Earning v. Metropolitan St. Ry. Railroad Co., 91 Pa. St. 458, 3 Am. 
 Co., 157 Mo. 477; Blackmere v. Rail- Rep. 675. 
 
 road Co., 38 U. C. Q. B. 317; Duff v. 2 Creamer v. West End Street Car 
 
 Co., 156 Mass. 320, 16 L. R. A. 490. 
 616 
 
CH. I.] THE KELATION WHO AEK PASSENGERS. [§§ 607, 608. 
 
 padestrian crossing a public street in which was a street-rail- 
 way track then occupied by a street-car, and of a street-rail- 
 way corporation lawfully using the same street in its traific." ' 
 
 §607. Reasonable regulations. — And so a street-car 
 
 company has the right to make and enforce reasonable regula- 
 tions as touching the rights of persons boarding their cars or 
 being conveyed as passengers. And the same rules and princi- 
 ples of law apply in this particular as apply to steam-railway 
 companies. 
 
 § 608. Must occupy usual place provided by the company. 
 The carrier company cannot be said to have received a person 
 as a passenger who occupies an unusual place upon its vehicle; 
 it has the right to require that persons shall ride in the places 
 it provides if such places are reasonable and usual. And so 
 where a boy hangs on the side of an electric car with his feet 
 resting upon the boxing of the axle and i-ode there without 
 offering to pay fare, it was held that he was not a passenger 
 to whom the carrier owed a safe carriage and immunity from 
 injury.^ But where the car is overcrowded with passengers, 
 and persons are compelled to occupy unusual places for car- 
 rying passengers upon the car, as the front platform or the 
 rear platform, or to ride upon the sides and steps, and their 
 position is known to those in charge of the cai', who collect fare 
 from such persons as passengers, they are beyond question 
 passengers and entitled to all the privileges and protection of 
 passengers.' 
 
 • Gargan v. West End Street Car from being changed as usual at such 
 Co., 176 Mass. 106, 49 L. R. A. 421 ; Bige- point from one end of the car to the 
 low V. West End Street Car Co., 161 other, it was held that she was en- 
 Mass. 393, 37 N. E. 367. titled to recover as a passenger for 
 
 2 Udell T. St. Ey. Co., 152 Ind. 507, her injury in the absence of a show- 
 
 53 N. E. 799. Where one had re- ing that the company had used the 
 
 ceived a transfer from one line of a highest degree of care. Keater v. 
 
 street railway company to its other Scranton Tr. Co., 191 Pa. St. 102, 43 
 
 line, and was proceeding from the Atl. 86. 
 
 sidewalk to her car, on the latter 3 Archer v. Ft. Wayne, etc. Co., 87 
 
 line, which was standing at the end Mich. 101 ; Upham v. Detroit, etc. 
 
 of the route, when she was struck by Co., 85 Mich. 12; Noble v. Railway 
 
 a piece of the trolley, which broke Co., 98 Mich. 349. 
 
 617 
 
CHAPTER II. 
 
 WHO MUST THE CARRIER ACCEPT AND CARRY, AND CERTAIN 
 DUTIES OF CARRIERS AND PASSENGERS. 
 
 609. Quasi-pnhlio servants. 
 
 610. Exceptions to the general 
 
 rule. 
 
 611. Carrier must protect pas- 
 sengers. 
 
 613. Right to separate passengers 
 according to sex. 
 
 613. Separation of races a reason- 
 able regulation. 
 
 Certain Duties Incumbent Upon 
 
 THE Caeriee. 
 § 614 Implied obligation. 
 
 615. Vehicles, machinery, road- 
 
 ways, tracks, etc. 
 
 616. Stational facilities. 
 
 617. Duty in managing and run- 
 
 ning its trains or vehicles. 
 
 618. The duty of passengers. 
 
 § 609. Quasi-public servants. — Common carriers of passen- 
 gers like common carriers of goods are quasi-pabiic servants, 
 and so are bound to serve the public when their reasonable rules 
 and regulations are complied with. They owe a duty to all 
 alike to carrj' passengers, and must not show partiality to 
 any person or class of persons. " At this day it would be su- 
 perfluous to enter upon a discussion to support the doctrine so 
 well settled, that common carriers are public agents, transact- 
 ing their business under an obligation to observe equality 
 towards every member of the community, to serve all persons 
 alike, without giving unjust or unreasonable advantages by 
 way of facilities for the carriage or rate for transporting 
 them."i 
 
 "A person having a public duty to discharge is undoubtedly 
 bound to exercise such office for the equal benefit of all, and, 
 therefore, to permit a common carrier to charge various prices 
 according to the person with whom he deals, for the same serv- 
 ices, is to forget that he owes a duty in the community."^ 
 
 Public policy would not permit the great franchises that are 
 granted to and operated by common carriers of the country to 
 
 1 At water v. Delaware, etc. R. Co., 
 48 N. J. L. 55, 57; 1 Wood on Rail- 
 ways, sec. 195. A leading case upon 
 this subject is said to be Messenger 
 
 V. Pennsylvania R Co., 7 Vroom (N. 
 J.), 407, 8 Vroom, 531. 
 
 2 Messenger v. Pennsylvania R. Co., 
 above cited. 
 618 
 
OH.II.J WHO MUST CAEEIEE ACCEPT AND OAEEY. [§§ 610, 611. 
 
 be used other than impartially and for the public, and so the 
 same general rule exists that obtains in the case of innkeepers. 
 
 Common carriers are bound to receive all passengers who 
 apply for carriage sO long as they have convenient accommo- 
 dations for their safe carriage, unless there is a sufficient legal 
 excuse for refusing to do so.^ 
 
 Professor Parsons in his work on Contracts' says: "It is his 
 duty to receive all passengers who offer ; to carry them the 
 whole route; to demand no more than the usual and established 
 compensation." 
 
 § 610. Exceptions to the general rule. — But to this general 
 rule there are exceptions. The right of persons to be trans- 
 ported is not unlimited, " but is subject," says Judge Story,* 
 "to such reasonable regulations as the proprietor may pre- 
 scribe for the due accommodation of passengers, and for the 
 due arrangement of their business. The proprietors have not 
 only this right, but the further right to consult and provide 
 for their own interests in the management of such boats as a 
 common incident to their right of property." 
 
 §611. Carrier must protect passengers. — The car- 
 rier of passengers is bound to protect them against violence 
 and injuries not only from its own servants, but from stran- 
 gers and co-passengers, and this liability is upon the carrier 
 from the time a person becomes a passenger, or entitled to 
 protection as such, until that relation ceases.'' And so it will 
 be seen that the carrier must protect the passenger from in- 
 juries from third persons while in the depot of the company, 
 
 1 Bennett v. Button, 10 N. H. 481, Gourdin, 3 Nott & McCord (S. C), 23 
 486. Markham v. Brown, 8 N. H. 523 
 
 2 a Parsons, Contracts, 335; Wheeler Pearson v. Duane, 4 "Wall. (U. S.)605 
 V. San B'rancisco, etc. R Co., 31 Cal. McKee v. Owen, 15 Mich. 115. "A 
 46, 86 Am. Deo. 147. In Toledo, etc. common carrier of passengers may 
 R. Go. V. Pence, 68 III. 524, it was establish on his car or vessel an 
 held that railroad companies -are agency for the delivery of passengers' 
 public highways only in the sense of baggage, and may exclude all other 
 being compelled to accept and carry persons from entering upon it for the 
 all passengers to the extent of their purpose of soliciting or receiving 
 liability. Indianapolis, etc. R. Co. v. orders from persons in competition 
 Eenard, 46 Ind. 393. with such agency." Barney v. O., B. 
 
 s Jenoks v. Coleman, 3 Sumn. (U. S.) & H. S. S. Co., 67 N. Y. 301. 
 822. In this case Daniel Webster was * Exton v. Cent. R. Co., 63 N. J. L, 
 of counsel and Charles Sumner was 356, 46 Atl 1099. 
 the reporter of the court. Cook v. 
 
 619 
 
;§ 612.] CAEEIEES OF PASSBNGEES. [PAET TI. 
 
 its baggage-rooms or waiting-rooms, as well as upon its trains 
 or vehicles while being transported.' Because of this liability 
 the law permits, and it may be said assists, the carrier in avoid- 
 ing it. It is therefore well settled that the carrier may re- 
 fuse to receive persons within its depots or upon its trains as 
 passengers who assault its passengers, or are liable to do so, or 
 to do that for which the carrier would incur a liability. And 
 so it has been held that persons who are insane or disorderly, 
 gamblers, montemen, drunken persons, persons who are ex- 
 tremely filthy or are infected with contagious diseases, or of 
 notorious and unequivocally bad character, or who are guilty 
 of gross and vulgar habits of conduct and create disturbances on 
 board, or who refuse to comply with the reasonable regula- 
 tions of the carrier, may be rejected by the carrier, and if they 
 have boarded their train or vehicle the carrier may eject them.^ 
 § 612, Right to separate passengers according to sex.— 
 "While it is true that every person has the right to be trans- 
 ported by the carrier, and, if he complies with its reasonable 
 regulations and is a fit person for carriage, has the right to 
 enter its vehicles as a passenger, it has been held that a regu- 
 lation which separates the passengers according to sex, or 
 which separates passengers into different classes according to 
 the amount of fare they pay or are charged, is a reasonable 
 regulation.' And it has been held that a regulation that none 
 
 1 Wood V. Railway Co., 101 Ky. 703. just, no rights guaranteed liere were 
 
 2 Hutchinson on Carriers, 539; Pier- denied. The civil rights to which 
 son V. Duane, 4 Wall. (U. S.) 605; plaintiff, as a passenger, was entitled 
 Stevenson v. West Seattle, etc. Co., from defendant as a carrier was a 
 23 Wash. 84, 60 Pac. 51 ; Freedon v. carriage in a car in which accoinmo- 
 N. Y. Cent. etc. Co., 48 N. Y. S. 584. dations, safety and protection were 
 
 3 Day V. Owen, 5 Mich. 520. In afforded her equal to what was af- 
 ■Chilton V. St. Louis, etc. R. Co., 114 forded other passengers paying the 
 Mo, 88, 19 L. R. A. 269, held: "A rail- same fare." Civil Rights Cases, 109 
 road corporation as a common car- U. S. 3; Hutchinson on Carriers, see. 
 rier has BO right to make unjust dis- 542; Hall v. De Cuir, 95 U. S. 485; 
 crimination against any passenger. West Chester, etc. Co. v. Miles, 55 Pa. 
 whatever his color, race or sex; and St. 209. In Iowa it was held that a 
 any regulation which would have steamboat company was liable for 
 unjustly discriminated against the removing a negro passenger from a 
 plaintiff on account of color alone, dinner table which had been pro- 
 would have been contrary to the vided and intended for white passen- 
 principles of the common law as well gers exclusively. Coger v. Packet 
 as the provision of the constitution. Co., 37 Iowa, 145. 
 
 If the regulation was reasonable and 
 
 620 
 
CH. II.J WHO MUST CAEEIER ACCEPT AND OAEEY. [§ 613, 
 
 but ladies, or ladies accompanied by male attendants or friends,, 
 shall be admitted to certain cars, is reasonable and valid.' The 
 carrier, however, must furnish a place for the passenger, and 
 where a seat could not be found elsewhere it was held that a 
 passenger might enter the ladies' car from which otherwise 
 the regulations would exclude him.^ 
 
 § 613. Separation of races a reasonable regulation. — In 
 the absence of statutes, any regulation of the common carrier 
 is tested by its reasonableness ; and so a regulation of the com- 
 mon carrier requiring the separation of colored from white 
 passengers, if there are no statutes upon the subject, would 
 wholly depend for its legal enforcement upon its reasonable- 
 ness. Upon this subject the rulings have generally been that 
 the carrier is obliged to furnish equal accommodations to each 
 class. That is to say, if colored passengers, by a regulation 
 of the company, are not allowed to ride in the cars provided 
 for white passengers, it is incumbent upon the company to fur- 
 nish as equally good and convenient accommodations for such 
 passengers in another part of its train or vehicle, as it is- 
 "equality of rights, and not identity or community of rights," 
 that is vouchsafed. The several states may no doubt enact 
 statutes upon this subject forbidding any discrimination or 
 separation, but it seems that such a statute would be void when 
 applied to railroad companies operating lines of railroad ex- 
 tending through different states; that it would not apply to 
 interstate transportation.' 
 
 This question has often been before the courts, it being 
 urged that this discrimination was illegal because of the four- 
 
 ' Peck V. Railway Co., 70 N. Y. 587. cars in which white women and men 
 
 2 Bass V. Railway Co., 36 Wis. 450; travel on the same train, ail holding 
 
 State V. Overton, 37 N. J. L. 435. As first-class tickets, for which the same 
 
 to separation of passengers on ac- fare is paid. 
 
 count of color, see Hurd v. Railway 3 Hall v. De Cuir, 93 U. S. 485. Chief 
 
 Co., 3 Interstate Com. Rep. Ill, Justice Waite, in Hall v. De Cuir, in 
 
 where it was held by Commissioner rendering the opinion in a case where 
 
 Bragg that the defendant is justi- this question was involved, says: "If 
 
 fled in so doing if the compartment each state was at liberty to regulate 
 
 of the oar, or the car, as the case the conduct of carriers while within 
 
 ™ay be, is equal in safety of con- itsjurisdiction,theconfusionlikelyto 
 
 struotion, comfort and accommoda- follow could not but be productive of 
 
 tion, andthe protection afforded to great inconvenience and unnecessary 
 
 passengers, to what is found In other hardship. Each state could provide 
 
 631 
 
§ 613.] 
 
 OAEEIEES OF PASSENGERS. 
 
 [PAET VI. 
 
 teenth amendment of the constitution, which is as follows: 
 " No state shall make or enforce any law which shall abridge 
 the privileges or immunities of citizens of the United States; 
 nor shall any state deprive any person of life, liberty or prop- 
 
 for its own passengers and regulate 
 the transportation of its own freight, 
 regardless of the interests of others. 
 Nay more, it could prescribe rules by 
 which the carrier must be governed 
 within the state in respect to pas- 
 sengers and property brought from 
 without. On one side of the river or 
 its tributaries he might be required 
 to observe one set of rules, and on 
 the other another. Commerce can- 
 not flourish in the midst of such em- 
 barrassments. No carrier of passen- 
 gers can conduct his business with 
 satisfaction to himself or comfort to 
 those employing him, if, on one side 
 of a state line, his passengers, both 
 white and colored, must be permitted 
 to occupy the same cabin, and on the 
 other be kept separate. Uniformity 
 in the regulations by which he is to 
 be governed from one end to the 
 other of his route is a necessity in his 
 business, and to secure it congress, 
 which is untrammeled by state lines, 
 has been invested with the exclusive 
 legislative power of determining 
 what such regulations shall he. If 
 this statute can be enforced against 
 those engaged in interstate com- 
 merce, it may be as well against those 
 engaged in foreign; and the master 
 of a ship clearing from New Orleans 
 for Liverpool, having passengers on 
 board, would be compelled to carry 
 all, white and colored, in the same 
 cabin during his passage down the 
 river, or be subject to an action for 
 damages, ' exemplary as well as act- 
 ual,' by any one who felt himself 
 aggrieved because he had been ex- 
 cluded on account of his color. This 
 power of regulation may be exer- 
 cised without legislation as well as 
 with it. By refraining from action, 
 
 congress, in effect, adopts as its own 
 regulations those which the common 
 law or the civil law, where that pre- 
 vails, has provided for the govern- 
 ment of such business, and those 
 which the states, in the regulation 
 of their domestic concerns, have es- 
 tablished affecting commerce, but 
 not regulating it within the mean- 
 ing of the constitution." 
 
 And Mr. Justice Clifford in the 
 same case says: "Repeated decisions 
 of this court have determined that 
 the power to regulate commerce em- 
 braces all the instruments by which 
 such commerce may be conducted; 
 and it is settled law that where the 
 subject to which the power applies is 
 national in its character, or of such 
 a nature as to admit of uniformity 
 of regulation, the power is exclusive 
 of all state authority. Whatever sub- 
 jects of this power, says Mr. Justice 
 Curtis, are in their nature national, 
 or admit only of one uniform system 
 or plan of regulation, may justly be 
 said to be of such a nature as to re- 
 quire exclusive legislation by con- 
 gress. Difficulty may attend the 
 effort to prescribe any definition 
 which will guide to a correct result 
 in every case; but it is clear that a 
 regulation which imposes burden- 
 some or impossible conditions on 
 those engaged in commerce, whether 
 with foreign nations or among the 
 several states, must of necessity be 
 national in its character. . . . 
 Such a subect is in its nature nar 
 tional, and admits of only one uni- 
 form system or plan of regulation. 
 Unless the system or plan of regu- 
 lation is uniform, it is impossible of 
 fulfillment. Mississippi may require 
 the steamer carrying passengers to 
 
 623 
 
OH. 11.] 
 
 WHO MUST OAEEIEE ACCEPT AND OAEEY. 
 
 [§ 613. 
 
 erty without 5ue process of law, nor deny to any person within 
 its jurisdiction the equal protection of the laws." But the rul- 
 ings have been that this amendment does not of itself give 
 congress even the power to protect by legislation the rights 
 
 provide two cabins and tables for 
 passengers, and may make it a penal 
 offense for white and colored persons 
 to be mixed in the same cabin or at 
 the same table. If Louisiana may 
 pass a law forbidding such steamer 
 from having two cabins and two 
 tables,— one for white and the other 
 for colored persons, — it must be ad- 
 mitted that Mississippi may pass a 
 law requirmg all passenger steamers 
 entering her ports to have separate 
 cabins and tables, and make it penal 
 for white and colored persons to be 
 accommodated in the same cabin or 
 to be furnished with meals at the 
 same table. Should state legislation 
 in that regard conflict, then the 
 steamer must cease to navigate be- 
 tween ports of the states having 
 such conflicting legislation, or must 
 be exposed to penalties at every 
 trip. Those who framed the consti- 
 tution never intended that naviga- 
 tion, whether foreign or among the 
 states, should be exposed to such 
 conflicting legislation; and it was to 
 save those who follow that pursuit 
 from such exposure and embarrass- 
 ment that the power to regulate 
 such commerce was vested exclu- 
 sively in congress. . . . Steamers 
 carrying passengers for hire are 
 bound, if they have suitable accom- 
 modation, to take all who apply un- 
 less there is objection to the char- 
 acter or conduct of the applicant. 
 Applicants to whom there is no such 
 valid objection have a right to a pas- 
 sage, but it is not an unlimited right. 
 On the contrary, it is subject to such 
 regulations as the proprietors may 
 prescribe for the due accommoda- 
 tion of passengers and the due ar. 
 rangement of the business of the 
 
 carrier. Such proprietors have not 
 only that right, but the further right 
 to consult and provide for their own 
 interests in the management of the 
 vessel as a common incident to their 
 right of property. They are not 
 bound to admit passengers on board 
 who refuse to obey the reasonable 
 regulations of the vessel, or who are 
 guilty of gross and vulgar habits of 
 conduct, or who make disturbances 
 on board, or wliose characters are 
 doubt! ul, dissolute, suspicious, or un- 
 equivocally bad. Nor are they bound 
 to admit passengers on board whose 
 object it is to interfere with the in- 
 terests of the patronage of the pro- 
 prietors so as to make their business 
 less lucrative or their management 
 less acceptable to the public. 
 
 " Corresponding views are ex- 
 pressed by the supreme court of Mich- 
 igan in an analogous case, in which 
 the distinction between the right 
 of an applicant to be admitted on 
 board, and his claim to dictate what 
 part of the vessel he shall occupy, is 
 clearly pointed out. Referring to 
 that subject, the court say the right 
 to be carried is one thing, and the 
 privilege of a passenger on board as 
 to what part of the vessel may be 
 occupied by him is another and a very 
 different thing; and they add, that 
 it is the latter and not the former 
 which is subject to reasonable rules 
 and regulations, and is, where such 
 rules and regulations exist, to be de- 
 termined by the proprietors. Dam- 
 ages were claimed in that case for 
 refusing the plaintiff the privilege of 
 the cabin; but the court held that 
 the reftisal was nothing more or less 
 than denying him certain accommo- 
 dations from which he was excluded 
 
 623 
 
§ 613.] 
 
 CAEEIEKS OF PASSENGEES, 
 
 [PAET VI. 
 
 pertaining to state or natural citizenship; that its inhibitions 
 are directed solely against action by the states, and not against 
 actions by individuals; and that therefore congress had no 
 power to protect rights claimed by colored citizens to occupy 
 
 by the i-ules and regulations of the 
 steamer. Proprietors of the kind 
 may make rules an d regulations, but 
 they must be reasonable; and the 
 court held in that case that to be so 
 they should have for their ob.iect the 
 accommodation of the passengers, in- 
 cluding everything to render the 
 transportation most comfortable and 
 least annoying, not to one or two or 
 any given number carried at any par- 
 ticular time, but to the great majority 
 ordinarily transported; and they also 
 held that such rules and regulations 
 should be of a permanent nature, and 
 not be made for a particular occasion 
 oremergenc}'. Special and important 
 duties indubitably are imposed upon 
 carriers of passengers for the benefit 
 of the traveling public; but it must 
 not bei forgotten that the vehicles 
 and vessels which such carriers use 
 do not belong to the public. They 
 are private property, the use and en- 
 joyment of which belong to the pro- 
 prietors. Concede what is undoubt- 
 edly true, that the use and employ- 
 ment of such vehicles and vessels, 
 during the time they are allowed the 
 privileges of common carriers, may 
 be subjected to such conditions and 
 obligations as the nature of their 
 employment requires for the com- 
 fort, security and safety of passen- 
 gers, still the settled rules of consti- 
 tutional law forbid that a state legis- 
 lature may invade the dominion of 
 private right by arbitrary restric- 
 tions, requirements or limitations, by 
 which the property of the owners or 
 possessors would be virtually stripped 
 of all utility or value if bound to 
 comply with the regulations. Both 
 steamboats and railways are modern 
 modes of conveyance; but Shaw,C. J., 
 
 decided that the rules of common 
 law were applicable to them, as they 
 take the place of other modes of car- 
 rying passengers, and he held that 
 they have authority to make reason- 
 able and suitable regulations as re- 
 gards passengers intending to pass 
 and repass in their vehicles or vessels. 
 They are, said the chief justice in 
 that case, in a condition somewhat 
 similar to that of an innkeeper, whose 
 premises are open to all guests. Yet 
 he is not only empowered to make 
 such proj)er arrangements as will 
 promote his own interests, but he is 
 bound to regulate his house so as to 
 preserve order, and, if practicable, 
 prevent breaches of the peace. Cases 
 of like import are quite numerous, 
 and the supreme court of Pennsyl- 
 vania decided directly that a public 
 carrier may separate passengers in 
 his conveyance; and they deduce his 
 power to do so from his right of pri- 
 vate.property in the means of con- 
 veyance, and the necessity which 
 arises for such a regulation to pro- 
 mote the public interest. Speaking 
 to that point, they say that the pri- 
 vate means the carrier uses belong 
 wholly to himself; and they held the 
 right of control in that regard as 
 necessary to enable the carrier to 
 protect his own interests, and to per- 
 form his duty to the traveling public. 
 His authority in that regard, as that 
 court holds, arises from his owner- 
 ship of the property, and his pubho 
 duty to promote the comfort and 
 enjoyment of those traveling in his 
 conveyance. Guided by those views, 
 the court held that it is not an un- 
 reasonable regulation to seat passen- 
 gers so as to preserve order and de- 
 corum, and to prevent contacts and 
 
 634 
 
CH. 11.] WHO MUST CAEEIEE ACCEPT AND CARET. [§'613. 
 
 places in the carrier's vehicle contrary to the regulation under 
 discussion.' 
 
 In the Civil Bights Cases^ Mr. Justice Bradley uses this lan- 
 guage : " It is state action of a particular character that is pro- 
 hibited. Individual invasion of individual rights is not the 
 subject-matter of the amendment. It has a deeper and broader 
 scope. It nullifies and makes void all state legislation and 
 state action of every kind which impairs the privileges and 
 immunities of citizens of the United States, or which injures 
 them in life, liberty or property without due process of law, or 
 which denies to any of themHhe equal protection of the laws. 
 It not only does this, but in order that the national will thus 
 declared may not be a mere irutumfulmen, the last section of 
 the amendment invests congress with power to enforce it by 
 appropriate legislation. To enforce what? To enforce the 
 prohibition. To adopt appropriate legislation for correcting 
 the effects of such prohibited state laws and state acts, and 
 thus to render them effectually null, void and innocuous. This 
 is the legislative power conferred upon congress, and this is the 
 whole of it." And it was therefore held that congress could 
 not legislate upon the subjects that are within the dominion of 
 state legislatures, and that therefore the act of March 1, 1875, 
 declaring that all colored citizens shall have the same accom- 
 modations in inns, public places, conveyances, etc., is unconsti- 
 tutional, for it belongs to the states. In West Chester, etc. Co. v. 
 Miles ^ it was held that " no one can be excluded from carriage by 
 
 collisions arising from natural or i Smoot v. Kentucky Cent. R Co., 
 
 well-known customary repugnancies 13 Fed. 337; United States v. Wash- 
 
 whioh are likely to breed disturb- ington, 20 Fed. 630, 4 Wood, 349; 
 
 auces where white and colored per- Cully v. B. & O. Ry. Co., Fed. Cases 
 
 sons are huddled together without No. 8466 (1 Hughes, 536). 
 
 their consent." Cooley v. Board of n09 U. S. 3, 11. 
 
 Wardens, 13 How. 299; Henderson v. 3 55 Pa. St. 209. " At common law 
 
 Mayor of New York, 92 U. S. 259; a railroad company, as a common 
 
 Jenoks V. Coleman, 2 Sumn. 321 ; Day carrier of passengers, could not ca- 
 
 T. Owen, 5 Mich. 520; Commonwealth prioiously discriminate between pas- 
 
 V. Power, 7 Mete. (Mass.) 601; Hibbard sengers on account of their nation- 
 
 V. New York & Erie Ey. Co., 15 N. Y. ality, color, race, social position or 
 
 455; 111. Cent. Ry. Co. v. Whittemore, their political or religious beliefs." 
 
 43 111. 420; Vinton v. Middlesex Ry. Chicago, etc. Ry. Co. v. Williams, 55 
 
 Co,, 11 Allen (Mass.), 304; West Ches- 111. 185, 8 Am. Rep. 641. And it has 
 
 ter & PhiL Ry. Co. v. Miles, 55 Pa. St. been held that, independent of con- 
 
 '• stitutional or statutory provisions, 
 
 40 
 
 625 
 
§ 613. J OAEEIEES OF PASSENGEES. [PAET VI. 
 
 a public carrier on account of color, religious belief, political re- 
 lations or prejudices." But as to the separation of white and 
 colored passengers, where the accommodations furnished to 
 each were the same, and in all respects comfortable, safe and 
 convenient, and not inferior in any respect the one to the other, 
 the court say: " This question must be decided upon reason- 
 able grounds. If there be no clear and reasonable difference to 
 base it upon, separation cannot be justified by mere prejudice. 
 Nor is merit a test. . . . The right of the carrier to sepa- 
 rate his passengers is founded upon two grounds — his right 
 of private property in the means of conveyance, and the public 
 interest. The private means he uses belong wholly to himself, 
 and imply the right of control for the protection of his own 
 interest, as well as the performance of his public duty. He 
 may use his property, therefore, in a reasonable manner. It is 
 not an unreasonable regulation to seat passengers so as to pre- 
 serve order and decorum, and to prevent contacts and collisions 
 arising from natural or well-known customary repugnancies, 
 which are likely to breed disturbances by a promiscuous sit- 
 ting. This is a proper use of the right of private property, 
 because it tends to protect the interests of the carrier as well 
 as the interests of those he carries. If the ground of regulation 
 be reasonable, courts of justice cannot interfere with his right 
 of property. The right of the passenger is only that of being 
 carried safely, and with a due regard to his personal comfort 
 and convenience, which are promoted by a sound and well- 
 regulated separation of passengers. An analogy and an illus- 
 tration are found in the case of an innlieeper who, if he have 
 room, is bound to entertain proper guests, and so a carrier is 
 bound to receive passengers. But a guest in an inn cannot 
 select his room or his bed at pleasure; nor can a voyager take 
 possession of a cabin or a berth at will, or refuse to obey the 
 reasonable orders of the captain of a vessel. ... If a right 
 of private property confers no right of control, who shall de- 
 cide a contest between passengers for seats or berths ? Courts 
 of justice may interpose to compel those who perform a busi- 
 ness concerning the public, by the use of private means, to 
 
 innkeepers and common carriers are public policy requires them to do so. 
 bound to furnish equal facilities to People v. King, 110 .N. Y. 418, 6 Am. 
 all without discrimination, because St. Rep. 389. 
 
 626 
 
CH. n.J WHO MUST CAEEIEE ACCEPT AND OAEEY. [§ 614. 
 
 fulfill their duty to the public — but not a whit beyond. The 
 public also has an interest in the proper regulation of public 
 conveyances for the preservation of the public peace. A rail- 
 road company has the right and is bound to make reasonable 
 regulations to preserve order in their cars. It is the duty of 
 the conductor to repress tumults as far as he reasonably can, 
 and he may, on extraordinary occarions, stop his train and 
 eject the unruly and tumultuous. ... In order to preserve 
 and enforce his authority as the servant of the company it 
 must have a power to establish proper regulations for the car- 
 riage of passengers. It is much easier to prevent difficulties 
 among passengers by regulations for their proper separation 
 than it is to quell them." 
 
 It would therefore seem to be the rule that state legislatures 
 may regulate this question by statute where the lines of trans- 
 portation are within their own state, but that they have no 
 power where the companies' lines are what may be called inter- 
 state lines, and so very many of the states have enacted stat- 
 lUtes upon the subject.^ 
 
 Ceetain Duties Incumbent Upon the Caeeiee. 
 
 §614. Implied obligation. — While the carrier of passen- 
 gers is not a guarantor of the safety of the passenger he car- 
 Ties, and has a right to rely upon his using at least ordinary 
 intelligence by way of taking care of himself and avoiding in- 
 jury, nevertheless the degree of diligence required of the car- 
 rier is very great. He is under an implied obligation to look 
 after the safety of his patrons, and to do all that he can do to 
 safely transport them. 
 
 "The carrier," says Mr. Hutchinson, quoting with approval 
 from Vhristie v. Griggs,^ "is bound to provide for his safe 
 
 1 "A rule providing for the separa- Ey. Co. v. Mississippi, etc. Co., 133 
 
 tioti of white and colored passengers XJ. S. 587; Plessy v. Ferguson, 163 
 
 in oars in all respects equal in com- U. S. 537; Anderson v. Louisville, etc. 
 
 fort, held to be reasonable." Chesa- Ry. Co., 62 Fed. 46. And see cases 
 
 peake, etc. Co. v. Wells, 85 Tenu. 613; collected, 6 Am. & Eng. Encycl. of 
 
 •Chicago, etc. Ry. Co. v. "Williams, 55 Law (2d ed.), 82, 83. 
 111. 185; People v. Gallagher, 93 N. Y. ^ 2 Camp. 79; Hutchinson on Car- 
 
 438, 45 Am. Rep. 333; Louisville, etc. riers, 500, and cases cited. 
 
 637 
 
§§ 615, 616.] CAEEIEES OF PASSENGEES. [PAET VI. 
 
 conveyance ' as far as human care and foresight will go,' and 
 this, or equivalent language, has been employed almost univer- 
 sally in subsequent cases in which the obligation of the passen- 
 ger carrier has been defined." And in Palmer v. Canal Co} the 
 court say: " The carrier must use the utmost care and diligence 
 which human prudence and foresight will suggest." So it fol- 
 lows that this high degree of diligence, this duty to exercise 
 the very highest degree of care, obtains in the operation of 
 almost every department of the carrier's business, this required 
 diligence only being modified as the surroundings are more or 
 less dangerous. 
 
 §615. Vehicles, machinery, roadways, tracks, etc. — The 
 vehicle, whether it be a stage-coach, a steamboat or a railroad 
 train, must be safe and suitable for the purpose for which it is 
 employed. The motive power must be sufficient and suitable 
 for the business; the roadway and tracks must be in condition 
 fit for the undertaking; and it is the duty of the carrier to see 
 that all these are safe and adapted to the purpose for which 
 they are used. Not only is it the duty of the carrier to furnish 
 safe vehicles, machinery, roadways and tracks, but he is re- 
 quired to furnish them with the necessary equipments for the 
 comfort of the passengers; as, for example, the cars must be 
 suitably seated and lighted, with suitable heating apparatus, 
 with necessary retiring rooms ; and if it be a sleeping-car or boat 
 upon which night journeys are taken, it must be provided with 
 suitable supplies for its berths and sleeping apartments, such 
 as the ordinary passenger would require.^ 
 
 § 616. Stational facilities.— The carrier is required to fur- 
 nish proper and suitable stational facilities, such as platforms, 
 waiting-rooms, and the like; such facilities as the particular 
 business in which he is engaged requires. He must so keep 
 the stations that passengers may with safety enter or leave his 
 vehicles. This liability grows out of the implied invitation of 
 the carrier to persons to come to their stations and avail them- 
 selves of the transportation they offer. This duty is, however, 
 more or less modified by the place where the stations or stop- 
 ping points may be. As, for example, more care is demanded 
 
 1 120 N. Y. 170. 2 Wood v. Railroad Co., 84 Ga. 363, 10 S. E. 967. 
 
 638 
 
CH. II.J WHO MUST OAEEIEE ACCEPT AND OAEET. [§§ 617, 618. 
 
 and required at a station in a large city, where a great many- 
 passengers daily congregate, depart and arrive, than at a 
 country cross-road or at a mere flag-station where trains seldom 
 stop.' 
 
 § 617. Duty in managing and running its trains or vehi- 
 cles.— The duty that is imposed upon the carrier of passengers 
 to manage its trains, boats or vehicles is perhaps the most im- 
 portant of all. Eailroad trains that are driven through the 
 country at a high rate of speed, governed and directed by the 
 company's servants, and carrying hundreds and thousands of 
 human beings; the immense lines of boats that plough the ocean 
 under the management of the servants and agents of the great 
 carrier companies, but evidence the justice and necessity of the 
 rule of law that holds them to the utmost care and foresight — 
 that highest degree of diligence and prudence which human 
 foresight will suggest ; a diligence and care that is commensu- 
 rate with the dangerous and important business that is being 
 carried on.^ "And it has been held that public policy requires 
 that a carrier should be held to the greatest possible degree of 
 care and diligence, and that the particular safety of passengers 
 should not be left to the support or chance of the negligence 
 of a careless agent." ' 
 
 § 618. The duty of passengers. — Duties and responsibilities 
 rest not alone upon the carrier, but, as has been suggested, the 
 passenger has duties that are incumbent upon him. He is an in- 
 telligent being endowed with faculties that when properly used 
 assist him to shun danger and avoid its consequences. These 
 faculties he must exercise. He cannot negligently be the cause 
 or contribute to the cause of the injury. From him is required 
 at least ordinary diligence. He must not occupy dangerous 
 and unusual places upon the carrier's convej'ance — places that 
 an ordinarily prudent man would not occupy; as, for ex- 
 
 'RailwayCav. Stacey,68Miss. 463. or highest degree of care and dili- 
 
 Inthe absence of special contracts gence for the safety of passengers 
 
 carriers are required to carry pas- that is consistent with the mode of 
 
 sengers as safely as human foresight conveyance employed." North Chi- 
 
 and reasonable care will permit, cago Street Ey. Co. v. Cook, 145 111. 
 
 Ryan V. Gilmer, 2 Mont. 518, 25 Am. 551. 
 
 Rep- 714 " Carriers of passengers ' Bryan v. Pacific Ry. Co., 33 Mo. 
 
 are held to the exercise of the utmost App. 328. 
 
 629 
 
§ 618.] OAEBIEES OF PASSENGERS. [PAET VI, 
 
 ample, riding upon the bumpers between freight cars, under 
 the cars upon the framework, on the top of the cars, or, in 
 some cases upon the platform or as a stowaway on a steamboat, 
 or in any such like places. His duty is to observe the ordinary 
 and reasonable regulations of the carrier, and failing to do 
 so, the carrier may be relieved of liability, even though the 
 injury occurred by reason of negligence on his part. 
 
 630 
 
CHAPTEE III. 
 
 THE PASSENGER CARRIER'S LIABILITY. 
 
 I General Peinciples Governing 
 
 Liability. 
 § 619. The purpose of the chapter. 
 630. The basis of the liability. 
 621. Diligence m the employment 
 of servants. 
 
 632. Safe and sufficient means of 
 
 transportation. 
 
 633. Passenger elevators. 
 
 63i Bound to adopt most ap- 
 proved machinery. 
 625. Latent defects. 
 
 636. English rule. 
 
 637. Defects discoverable by 
 
 manufacturer. 
 
 II Llabilitt Growing Out of Duty 
 
 TO Passenger While in Tran- 
 sit. 
 628. The degree of care required. 
 639. Depots — Waiting-rooms — 
 Approaches and exits from 
 premises and vehicles. 
 
 630. Same subject. 
 
 631. Overloading and overcrowd- 
 
 ing vehicles. 
 633. Liability of carrier for abuse 
 of passengers. 
 
 633. Fares — Tickets — Contracts 
 
 for carriage. 
 
 634. Where the carrier or agent is 
 
 at fault. 
 
 635. Exhibition and surrender 
 
 of tickets. 
 
 636. Lost or mislaid tickets. 
 
 637. Stop-over tickets — Time 
 
 limit — Train limit, etc. 
 638. Tickets over connecting lines. 
 639. Delayed by wreck or by 
 
 the fault of the carrier. 
 
 § 640. Tickets, passes and other 
 transportation fraudulently 
 obtained or fraudulently 
 used. 
 
 641. Sleeping-oar companies. 
 
 642. Not liable as innkeepers. 
 
 III. Ejection op Passengers and 
 
 Intruders from the Vehicle 
 OP THE Carrier. 
 
 643. The right — The cause — The 
 
 manner — By whom. 
 
 644. The causes numerous. 
 
 645. Passenger's reliance upon 
 
 statements and promises of 
 servants and agents of the 
 carrier. 
 
 646. Tendering fare to avoid ejec- 
 
 tion. 
 
 647. The manner of ejecting. 
 
 648. The condition of the passenger 
 
 must be taken into account. 
 
 IV. When the Carrier is Excused. 
 
 649. When caused by the act of 
 
 God. 
 
 650. The public enemy. 
 
 651. Contributory negligenca 
 653. Strangers, trespassers, in- 
 truders. 
 
 653. Failure to warn passen- 
 gers of danger. 
 
 654. A question of fact for the 
 
 jury or of law for the court. 
 
 655. Whether a question of 
 
 law or fact. 
 
 656. Same subject. 
 
 657. When excused. 
 
 658. Failure to perform contract of 
 
 carriage within stipulated 
 or reasonable time. 
 
 631 
 
§§ C19-621.] CAEEIEKS OF PASSENGERS. [PAET VI. 
 
 § 619. Tlie purpose of the chapter. — The discussion of the 
 liability of the passenger carrier tabes on so many different 
 phases that it seems necessary to divide the subject into the 
 several sections adopted for its consideration: (1) General 
 principles governing the liability. (2) Liability growing out 
 of duty to passengers while in transit. (3) Ejection of passen- 
 gers and intruders from the vehicle of the carrier. (4) When 
 the carrier is excused. 
 
 I. 
 
 GrENEEAL PeINCIPLES GoVEENING THE LIABILITY. 
 
 § 620. The basis of the liability. — The basis of the liabil- 
 ity of the passenger carrier is his failure in the particular case 
 to perform his legal duty which results in the injury or dam- 
 age. But the liability resulting from such failure is often 
 modified, and may be said to often depend upon the failure of the 
 passenger to do his duty by exercising that ordinary care in 
 avoiding the injury which the law requires of him. Contributory 
 negligence on the part of the passenger is a defense which the 
 carrier may successfully maJje in some cases, as we shall see, 
 but there are other duties resting upon the carrier to which this 
 defense cannot be made. 
 
 §621. Diligence in the employment of servants. — The 
 duties of the passenger carrier are ver3' generally performed by 
 servants whom he employs. The traveling public are in the 
 hands of these servants, and constantly, and almost entirely, 
 depend upon their skill, foresight and diligence for safe trans- 
 portation. As, for example, the train dispatcher, with his crew of 
 assistants at the telegraph key, directs the movements of trains; 
 the engineer, though ever so watchful, depends almost entirely 
 upon the orders furnished him directing the running of bis 
 train; by them he drives his engine through the day or the 
 night, drawing its trainload of passengers; the conductor, the 
 brakeman, the trackmen, station agents and switchmen all are 
 servants of the carrier company employed for this very dan- 
 gerous and hazardous business. The drivers of stage-coaches 
 over mountain passes or through dark ravines by day and by 
 night, where a turn to the right or the left would dash the 
 coach and passengers down the precipice or result in great 
 danger; servants who stand watch upon the steamboat or at 
 
 633 
 
OH. III.J THE PASSENGEE OABEIEe's LIABILITY. [§ 621. 
 
 the wheel,' and who direct its course through storm and bois- 
 terous seas, — all these are servants of the great carrier companies 
 selected and put into these responsible positions by them. 
 Public policy demands, the interests of humanity demand, that 
 the carrier should be held to a high degree of diligence in the 
 selecting of these servants. He must know, at least have a rea- 
 sonable assurance, that they are competent to perform the duties 
 that are laid upon them, for disasters resulting in the loss of 
 life of passengers who have intrusted themselves to the carrier 
 for transportation are inexcusable when caused by the incompe- 
 pent and reckless management of the carrier's vehicle. In an 
 early case in the supreme court of the United States it was 
 said by Mr. Justice Grier : ' " When carriers undertake to con- 
 vey persons by the powerful but dangerous agency of steam, 
 public policy and safety requires that they be held to the great- 
 est possible care and diligence ; and whether the consideration 
 for such transportation be pecuniary or otherwise, the personal 
 safety of the passenger should not be left to the negligence of 
 careless agents. Any negligence in such cases may well deserve 
 the epithet of 'gross.' " 
 
 The same rule applies to proprietors of stage-coaches, and in 
 Shafer v. Gilmer'^ the court say : " The law compels sta^e pro- 
 prietors to furnish prudent and skilful drivers, and holds them 
 Mable for any injury that a passenger may receive on account 
 of any negligence in this particular." And in Tuller v. Talbot^ 
 it was held that the proprietors of a stage-coach should furnish 
 
 'Philadelphia, etc. Co. v. Derby, there was no negligence whatso- 
 
 U How. (U. S.) 483. Parish & Co. V. ever." 
 
 Eeigle, 11 Grat. (Va.) 697— a stage- ns Nev. 330, 338; Sales v. Western 
 
 coach case where the question is re- Storage Co., 4 Iowa, 547; Redfield on 
 
 viewed — held: "Carriers ofpassen- Carriers, sec. 340; Angell on Carriers, 
 
 gersbystagesareliableforinjuriesre- sec. 569; MoKinney v. Neil, 1 McL. 
 
 suiting from the slightest negligence 540. 
 
 oa the part of the driver or proprie- ^ 23 111. 357. Frink & Co. v. Coe, 4 G. 
 tor of the stage, and they are bound Greene (Iowa), 555, held that " stage- 
 to use the utmost care and diligence coach proprietors who carry passen- 
 ot cautious persons to prevent inju- gersforcornpensation are responsible 
 nes to the passengers. When a pas- for all accidents and injuries happeri- 
 senger is injured by the upsetting of ing to 'passengers which might have 
 the coach, the presumption is that it been prevented by human care and 
 occurred by the negligence of the foresight, and they are consequently 
 driver, and the burden of proof is on bound to furnish good and strong 
 proprietor of the coach to shovi' that coaches and harness, gentle and well- 
 
 633 
 
§ (','22.] CARRIEES OF PASSENGEKS. [PAET VI^ 
 
 competent and careful drivers, and if a stranger shall be sub- 
 stituted by them, or their agents, in lieu of a regular driver, 
 the proprietors are accountable for his neglect or incompetency, 
 and that the carrier of passengers is required to do all that 
 human care, vigilance and foresight reasonably can, under the 
 circumstances, in vieu' of the character and mode of convey- 
 ance adopted, to prevent accident to passengers. 
 
 § 622. Safe and sufficient means of transportation. — As^ 
 we have seen, it is incumbent upon the carrier of passengers 
 to use safe and suitable vehicles, roadways, motive power 
 and appliances. "It is the duty of the carrier company, in 
 this particular, to use the best mechanical appliances and to 
 exercise the highest degree of prudence and skill in determin- 
 ing that all their appliances are safe for the purpose of trans- 
 portation, and in case an accident results from a failure to usl; 
 such appliances, or to exercise the proper degree of care and 
 skill, they are liable in damages." ' 
 
 The carrier and the passenger do not occupy the same vantage 
 ground in this matter. The carrier undertakes to safely trans- 
 port the passenger, and impliedly says to him: take passage in 
 this vehicle; it is perfectly safe and suitable for the purpose. 
 The vehicle is known, or ought to be, by the carrier. He is 
 supposed to be skilled not only in the matter of operating but 
 in selecting the means of conveyance. The passenger cannot 
 inspect it and determine its sufficiency; he is entirely depend- 
 ent upon the carrier, and so the law requires of the carrier the 
 very highest degree of diligence and foresight; and while the 
 
 broke horses, skilful and prudent fendant, it was held that it was no 
 
 drivers, and the smallest degree of defense that the defendant had no 
 
 negligence in these particulars will knowledge of the watchman's in- 
 
 render such proprietors liable for any competency until after the accident; 
 
 injury to passengers. Where a pas- and further, a passenger is entitled 
 
 senger has been injured in conse- to a safe transit, and the carrier is 
 
 quenoe of the gross negligence of a bound to the highest degree of re* 
 
 stage-coach proprietor, bythe employ- sonable care." 
 
 ment of a known drunken dri%'er, the i A railroad company is not relieved 
 
 injured party may be entitled to ex- of liability because its employees 
 
 emplary damages." In G. R. & L Ry. acted with reasonable prudence after 
 
 Co. T. Ellison, 117 Ind. 234: "In an discovering a danger which their 
 
 action by a passenger to recover for negligence contributed in bringing 
 
 injuries received in an accident about. Kellow v. Cent. Iowa Ry. Co., 
 
 caused by negligence of a watch- 68 Iowa, 478; Pershing v. Railroad 
 
 man in the employment of the de- Co., 71 Iowa, 567. 
 
 634 
 
CH. in.] 
 
 THE PASSENGER CAREIEE S LIABILITT. 
 
 [§ 022. 
 
 carrier cannot be held, as in the case of carriage of goods, to 
 warrant the means of conveyance to be sufficient and adequate, 
 if the defect to which the injury is attributable was such that 
 it could have been discovered by the most careful and compe- 
 tent inspection, by that "utmost care and diligence which 
 human prudence and foresight will suggest," the carrier will 
 be liable.^ 
 
 Judge Cooley states the rule as to carriers of passengers to 
 be: Such carrier "only undertakes that he will carry them 
 without negligence or fault. But as there are committed to 
 his charge for the time the lives and safety of persons of all 
 ages and of all degrees of ability for self-protection, and as 
 the slightest failure in watchfulness may be destructive of life 
 or limb, it is reasonable to require of him the most perfect 
 care of prudent and cautious men, and his undertaking and lia- 
 bility as to his passengers goes to this extent : that, as far as 
 human foresight and care can reasonably go, he will transport 
 them safely." ^ 
 
 •In Pennsylvania By. Co. v. Roy, 
 102 U. S. 451, 457, it was held that the 
 carrier "is responsible for injuries 
 received by passengers in the course 
 of their transportation which might 
 have been avoided or guard ed against 
 by the exercise, upon his part, of ex- 
 traordinary vigilance aided by the 
 highest skill. And this caution and 
 prudence must necessarily be ex- 
 tended to all the agencies or means 
 employed by the carrier in the trans- 
 portation of the passenger. Among 
 the duties resting upon him is the 
 important one of providing cars or 
 vehicles adequate, that is, sufficiently 
 secure as to strength and other 
 requisites for the safe conveyance of 
 passengers. That duty the law en- 
 forces with great strictness. For 
 the slightest negligence or fault in 
 this regard, from which injury re- 
 sults to the passenger, the carrier is 
 liable in damages. . . . The duty 
 of the railroad company was to con- 
 vey the passenger over its line, and 
 in performing that duty it could 
 
 not, consistently with the law and 
 the obligations arising out of the 
 nature of its business, use cars or 
 vehicles whose inadequacy or insuf- 
 ficiency for safe conveyance was dis- 
 coverable upon the most careful and 
 thorough examination." Steamboat 
 New World v. King, 16 How. (U. S.) 
 469; Railroad Co. v. Pollard, 33 Wall. 
 (U. S.) 341. 
 
 2 Cooley on Torts (2d ed.), 768, 769. 
 See cases cited on page 769. In Tay- 
 lor V. Grand Trunk Ry. Co., 48 N. H. 
 304, it was said: ''Upon grounds of 
 public policy also, the carrier of pas- 
 sengers is bound to exercise the 
 highest degree of care and diligence. 
 To his diligence and fidelity are in- 
 trusted the lives and safety of large 
 numbers of human beings;" and 
 when passengers are carried by 
 steam, the demand for the utmost 
 skill and diligence is especially re- 
 quired, for then, in consequence of 
 the great speed, the hazard to life 
 and limb is largely increased. 
 
 635 
 
§ 023. J OAEEIEES OF PASSENGERS. [PAET VI. 
 
 § 623. Passenger elevators. — The same degree of re- 
 
 spoasibility attaches to those controlling and running pas- 
 senger elevators. "Persons who are lifted by elevators are 
 subjected to great risks to life and limb. They are hoisted 
 vertically, and are unable, in case of the breaking of the ma- 
 chinery, to help themselves. The person running such eleva- 
 tor must be held to undertake to raise such persons safely, as 
 far as human care and foresight will go. The law holds him 
 to the utmost care and diligence of very cautious persons, and 
 responsible for the slightest neglect. Such responsibility at- 
 taches to all persons engaged in employments where human 
 beings submit their bodies to their control, by which their 
 lives or limbs are put at hazard, or where such employment is 
 attended with danger to life or limb. The utmost care and 
 diligence must be used by persons engaged in such employ- 
 ments to avoid injury to those they carry. The care and dili- 
 gence required is proportioned to the danger to the persons 
 carried. In proportion to the degree of danger to others must 
 be the care and diligence to be exercised ; where the danger is 
 great, the utmost care and diligence must be employed. In 
 such cases the law requires extraordinary care and diligence. 
 "We know of no employment where the law should demand a 
 higher degree of care and diligence than in the case of the 
 persons using and running elevators for lifting human beings 
 from one level to another. The danger of those being raised 
 is great. When persons are injured by the giving way of the 
 machinery the hurt is always serious, frequently fatal; and 
 the law does and should bind persons so engaged to the high- 
 est degree of care practicable under the circumstances. It 
 would be injustice and cruelty to the public in courts to 
 abate in any degree from this high degree of care. The aged, 
 the helpless and the infirm are daily using these elevators. 
 The owners make profit by these elevators, or use them for the 
 profit they bring to them. The cruelty from a careless use of 
 such contrivances is likely to fall on the weakest of the com- 
 munity. All, including the strongest, are without the means 
 of self-protection upon the breaking down of the machinery. 
 The law, therefore, throws around such persons its protection 
 by requiring the highest care and diligence. The carrier of 
 passengers is under obligations to use the utmost care and 
 
 636 
 
CH. III.] THE PASSENGER CABEIEE's LIABILITY. [§§ 624r, 625. 
 
 diligence in providing safe, suitable and sufficient vehicles for 
 the conveyance of his passengers." ^ 
 § 624. Bound to adopt most approved machinery. — 
 
 It is said that railroads and other carriers of passengers must 
 keep pace with science, art, and modern improvements in their 
 application to the carriage of passengers.^ This, however, does 
 not mean that they are bound to adopt any mere speculative or 
 untried experiments ; they are not responsible for the unknown 
 as well as the new, but they should adopt such improved 
 and tried appliances as have been tested and found useful, and 
 which materially contribute to the safety of the passenger.' 
 As was said b}'' Mr. Justice Church: " It is established that the 
 carrier of passengers, especially in vehicles and conveyances 
 propelled by steam where the consequences of an accident from 
 defective machinery are almost certainly fatal to human life, is 
 bound to use every precaution which human skill, care and 
 forseight can provide, and to exercise similar care and fore- 
 sight in ascertaining and adopting new improvements to secure 
 additional protection." * But it has been held that while rail- 
 road companies, as common carriers, are bound to have such 
 vehicles and machinery for the transportation of goods as the 
 improvements known to practical men and tested by practical 
 use may suggest, they are not bound to take every possible 
 precaution which the highest scientific skill might suggest, nor 
 to adopt mere speculative and untried experiments.' 
 
 § 625. Latent defects. — Where the injury is the result 
 
 of such a latent defect in the appliances or machinery of the 
 carrier that no degree of skill, care or foresight can detect it, 
 the carrier is not liable, for there is no lack of diligence upon 
 
 ^Treadwell v. Whittier, 80 Cat injury, for that would be inconsistent 
 574, 5 L. E. A. 498; Baltimore & H. with the cheapness and speed which 
 %■ Co. V. State, 29 Md. 252; Va. are among the chief objects of rail- 
 Cent. Ey. Co. V. Sawyer, 15 Grat. way traveling. Their care is to be 
 (va.) 230; Kelly v. N. Y. & S. B. Ry. exercised in relation to such matters, 
 w, 109 N. Y. 44; Northern Pac. Ry. and in .such ways, as are appropriate 
 Co. V. Herbert, 116 U. S. 651. to the businessthey have undertaken, 
 
 2 Meier v. Pa. Ry. Co., 64 Pa. St. 225. to afford proper and reasonable se- 
 
 Barron v. East Boston Ferry Co., curities against danger." 
 
 11 Allen (Mass.), 312. In Warren v. * Caldwell v. New Jersey Steam- 
 
 fitohburg, etc. R. Co., 8 Allen, 337, boat Co., 47'N. Y. 383. 
 
 the court say: " They are not to take sgteinweig v. Erie Ry. Co., 43 N. 
 
 every possible precaution to prevent Y. 133. 
 
 637 
 
§ 625.] OAEEIEES OF PASSENGEES. [p\ET VI. 
 
 his part; he cannot be shown to have been guilty of a de- 
 gree of negligence sufficient to warrant a recovery. Where 
 the injury was caused by the breaking of an axle of a stage- 
 coach, and no negligence could be shown, it was held, if the 
 axletree was sound as far as human eye could discover, the de- 
 fendant was not liable.^ And where it appeared that the break- 
 ing of the axletree of a coach resulted in an accident, and that 
 the breaking occurred because of a very small flaw surrounded 
 by sound iron, which could not have been discovered by the 
 most careful external examination, it was said by the court: 
 "Where the accident arises from a hidden and internal defect, 
 which a careful and thorough examination would not disclose, 
 and which could not be guarded against by the exercise of a 
 sound judgment and the most vigilant oversight, then the pro- 
 prietor IS not liable for the injury, but the misTortune must be 
 borne by the sufferer, as one of that class of injuries for which 
 the law can afford no redress in the form of a pecuniary recom- 
 pense."^ And where a plaintiff while a passenger on the de- 
 fendant's road was injured by an accident which was caused by 
 the breaking of a tire of one of the wheels of the carriage in 
 which he was seated, and it was shown that such breaking was 
 owing to an air bubble, which could neither be discovered in 
 the course of manufacture nor afterwards, and there was no 
 negligence proven on the part of either the manufacturer or 
 the railroad company, it was held that the defendant was not 
 liable.^ 
 
 It will be noticed from the line of decisions that it is not 
 every latent defect that will excuse the carrier; it is only such 
 a latent defect as no reasonable degree of human skill and fore- 
 sight could guartl against. So, carriers are held to a strict in- 
 spection; they are required to make vigilant search for any 
 imperfections or defects that might occasion an accident. If 
 the defect could have been discovered by the most careful and 
 thorough examination, or if any certain or satisfactory test is 
 known which is within reach of the carrier, and he fails to 
 apply such test, but relies upon a test which is clearly insuffi- 
 cient, the carrier would be liable.'' 
 
 1 Christy v. Griggs, 2 Camp. 79. 3 Q. B. 412; affirmed, 20 L. T. (N. S.) 
 
 2 Ingalls V. Bills, 9 Mete. (Mass.) 1, 628. 
 
 43 A m. Dec. 346. ■» Hadley v. Cross, 34 Vt. 580 ; Ingalls 
 
 3Readheadv. Midland Ry. Co., L.R. v. Bills, 9 Mete. (Mass.) 1; Edwards 
 
 638 
 
CU. III.] THE PASSENGEE CAKRIEk's LIABILITY. [§§ 626,627. 
 
 §636. English rule. — Until the c&sb ot Readhead v. 
 
 Midland Ry. Co., above cited, the English courts had held 
 that a latent defect would not excuse the carrier, but that if 
 the injury occurred from any defect in the appliances of the 
 •carrier, its vehicles or machiner}^ the carrier was liable, rest- 
 inf its opinion upon the ground that it was a duty of the carrier 
 to furnish fit and safe appliances, and that a failure to do so ren- 
 dered him liable. The leading English case is that of Sharp v. 
 Orey^ where the court virtually held that the carrier war- 
 ranted the sufficiency of his vehicle; but since the holding in 
 Beadhead v. Midland Ry. Co. it may be said that the English 
 and American rule is the same, and that carriers are not liable 
 for injuries occasioned by latent defects in their appliances or 
 vehicles which cannot by any human care or skill have been 
 detected or prevented, but that it is the duty of the carrier to 
 apply every known practical test for the discovery of such 
 •defects. 
 
 §627. Defects discoverable by manufacturer. — It 
 
 has been held by a line of authority, and perhaps it may be 
 said to be the weight of authority, that the carrier is liable for 
 an injury which is the result of defects in the appliances, ve- 
 hicles or machinery which, by the inspection usually given to 
 «uch appliances after they are purchased and put in service, 
 could not have been discovered, no matter how thorough or 
 competent, but which could have been discovered and known 
 to the manufacturer by the application of reasonable tests 
 known to skilful mauufacturers, and which ought to be made 
 before delivering the work. This rule may be said to be based 
 upon the theory that the obligation of the carrier is to furnish 
 suitable and fit conveyance to the passenger, and, as has been 
 shown, if by the exercise of the highest degree of skill and 
 prudence defects cannot be discovered, he may be excused, but 
 not otherwise. So the manufacturer whom the carrier calls 
 upon to furnish conveyances, appliances and machinery for 
 •carrying passengers is but the agent or servant of the carrier, 
 and for any negligence upon his part in receiving and furnish- 
 ing such conveyance, machinery or appliances resulting in in- 
 
 y. Lord, 49 Me. 279; Texas & P. R. 170, 17 Am. St. Rep. 629, 44 Am. & 
 ■Co, V. Hamilton, 66 Tex. 95; Palmer Eng. R. Cases, 298. 
 'y. Delaware, etc. Canal Co., 120 N. Y. 1 9 Bing. 457. 
 
 639 
 
§ (127.] OAEEIERS OF PASSENGERS. [PAET VI. 
 
 jury to the passenger the carrier is answerable. In other 
 words, for the failure of the manufacturer to discover any de- 
 fects which might be detected by the application of the best 
 known tests of skilful manufacturers, and which occasioned 
 injury to the passenger, the carrier would be liable. A lead- 
 ing case upon this subject and holding to this rule is that of 
 Hageman v. Western R. Corp.^ where Chief Justice Gardner in 
 discussing this doctrine said : " The substance of the charge was 
 that, although the defect was latent and could not be discov- 
 ered by the most vigilant external examination, yet, if it could 
 be ascertained by a known test applied either by the manufact- 
 urer or the defendant, the latter was responsible. In these in- 
 structions there was no error." And after quoting from the 
 opinion in Ingalls v. Bills, where it was held that a carrier 
 was not liable for an injury which resulted in the breaking 
 of the axle of a stage-coach, the fracture being occasioned by 
 reason of a defect which was entirely surrounded by iron and 
 therefore latent, the chief justice further says: "I concur in 
 that decision in the particular case presented; but the learned 
 judge did not intimate ' that a sound judgment and the most 
 vigilant oversight ' would be evidenced by the adoption of the 
 same methods of examination in the case of a stage-coach 
 and a car for the express train of a railroad. The mode of 
 construction, the purposes to be subserved, and, above all, the 
 probable consequences of a hidden defect in the two cases, 
 are altogether different. It might as plausibly be urged that 
 a chain for agricultural purposes and the cable of a ship of 
 the line should be subjected to the same tests, because both 
 were chains and each manufactured of the same material. 
 Keeping the distinction indicated in view, the charge was suffi- 
 ciently favorable to the defendant. ... It was said that 
 carriers of passengers are not insurers. This is true. That 
 they were not required to become smelters of iron, or manu- 
 facturers of cars, in the prosecution of their business. This 
 also must be conceded. What the law does require is that they 
 shall furnish a sufficient car to secure the safety of their pas- 
 sengers by the exercise of the ' utmost care and skill in its 
 preparation.' They may construct it themselves, or avail them- 
 selves of the services of others ; but in either case they engage 
 
 1 13 N. Y. 9, 64 Am. Dec. 517. 
 640 
 
CH. III.] THE PASSENGEE OAEEIEe's LIABILITY. [§ 627. 
 
 that all that well directed skill can do has been done for the 
 accomplishment of this object. A good reputation upon the 
 part of the builder is very well in itself, but ought not to be 
 accepted by the public, or the law, as a substitute for a good 
 vehicle. What is demanded, and what is undertaken by the 
 corporation, is not merely that the manufacturer had the req- 
 uisite capacity, but that it was skilfully exercised in the par- 
 ticular instance. If to this extent they are not responsible, 
 there is no security for individuals or the public.'" 
 
 A contrary doctrine, however, is held by the supreme court 
 of Tennessee and also by the supreme court of Michigan.^ The 
 opinion of the Michigan court, by Campbell, C. J., is strong in 
 its logic and reasoning. He says: "It was held by the court 
 below that no diligence or care in the railroad company could 
 exempt them from want of care in the manufacturers of the 
 cars and axles. This doctrine is, we think, entirely incorrect. 
 Carriers of freight are liable, whether careful or not, for any 
 act or damage not caused by the act of God or of the public 
 enemy. Their liability, therefore, does not arise from negli- 
 gence or want of care. It arises from their failure to make an 
 absolutely safe carriage and delivery, which they insure by 
 their undertaking. The analogies of carriers of freight have 
 nothing to do with passenger carriers. These are liable only 
 when there has been actual negligence of themselves or their 
 servants. If they exercise their functions in the same way 
 with prudent railway companies, generally, and furnish their 
 road and run it in the customary manner, which is generally 
 found and believed to be safe and prudent, they do all that is 
 incumbent upon them. This general doctrine the court below 
 
 ' Treadwell V. "Whittier, 80 Cal. 574 a collision, or a defect in the ma- 
 in Philadelphia, etc. Co. t. Anderson, chinery or roadway, he is required, in 
 94 Pa. St, 351, it was said: " Where the first place, to prove no more than 
 for a consideration a railroad com- the fact of the accident and the ex- 
 pany undertakes to transport a pas- tent of the injury; a prima facie 
 senger from one point of its line to case is thus made out and the onus 
 another, there arises an implied con- is cast upon the carrier to disprove 
 tract on the part of the company negligence."' 
 
 that it has, for that purpose, pro- ^ Nashville, etc. Ry. Co. v. Jones, 9 
 
 vided a safe and sufficient road and Heisk. (Tenn.) 87; G. R. & I. Ry. Co. 
 
 that its cars are safe and trust- ▼. Huntley, 38 Mich. 587, 31 Am. Rep. 
 
 worthy. And where a person is in- 331. 
 jnred by an accident arising from 
 
 ti 641 
 
§ 628.] CAEEIEES OF PASSENGERS. [PAET TI. 
 
 laid down very clearly, but qualified it so as to make them ab- 
 solutely responsible for the omissions or lack of skill or atten- 
 tion of the manufacturers from whom they made their purchases 
 of stock, however high in standing and reputation as reliable 
 persons. There is no principle of law which places such manu- 
 facturers in the position of agents or servants of their custom- 
 ers. The law does not contemplate that railroad companies 
 will, in general, make their own cars or engines, and they pur- 
 chase them in the market, of persons supposed to be competent 
 dealers, just as they buy their other articles. All that they 
 can reasonably be expected to do is to purchase such cars and 
 other necessaries as they have reason to believe will be safe 
 and proper, giving them such inspection as is usual and prac- 
 ticable as they buy them. When they make such an examina- 
 tion, and discover no defects, they do all that is practicable, 
 and it is no neglect to omit attempting what is practicable. 
 They have a right to assume that a dealer of good repute has 
 also used such care as was incumbent on him, and that the 
 articles purchased of him which seem right are right in fact. 
 Any other rule would make them liable for what is not negli- 
 gence, and put them practically on the footing of insurers. 
 The law has never attempted to hold passenger carriers for 
 anything which they could not avoid by their own diligence."' 
 
 11. 
 
 Liability Geowing Out of Duty to Passengees While in 
 
 Teansit. 
 § 628. The degree of care required. — That same high de- 
 gree of care and diligence, " the utmost care and diligence 
 which human prudence and foresight will suggest," is required 
 of the carriers of passengers in operating the machinery, ap- 
 pliances and vehicles employed by them in their business, and 
 this requirement rests upon every passenger carrier, — the stage- 
 coach proprietor, the street-car operator, the railroad com- 
 pany, ferry companies, proprietors of passenger elevators, — all 
 who are engaged in transporting passengers. As has been ob- 
 served, the degree of diligence depends almost entirely upon the 
 elements of danger that surround the business in which the 
 
 1 Grand Eapids, etc. Ry. Co. v. Huntley, 38 Mich. 537-546. 
 643 
 
OH. III.] THE PASSENGER CAEEIEb's LIABILITY. [§ G29. 
 
 carrier is engaged. As, for example, the same degree of dili- 
 gence is not required of the proprietor of a stage-coach or a 
 canal-boat owner as would be required of those using steam or 
 electricity for motive power, and driving their vehicles at a 
 high rate of speed through the streets of crowded cities, or 
 over their tracks in the country ; and yet the law requires the 
 same degree of diligence, modified only by the hazards and 
 dangers attending upon the particular undertaking. Propor- 
 tionately to the hazards of the business is the degree of dili- 
 gence and care that is required. 
 
 § 629. Depots — Waiting-rooms — Approaches and exits 
 from premises and vehicles. — The carrier of passengers is 
 not held to that high degree of diligence and care in provid- 
 ing and caring for its depots, waiting-rooms, platforms, docks, 
 approaches and exits as obtains in the operation of its passen- 
 ger trains, boats or vehicles. Its duty as to the former is to 
 provide a reasonably safe place for the accommodation of 
 those awaiting the arrival or departure of trains or convey- 
 ances of the carrier, and reasonably safe approaches and exits 
 to and from their vehicles, taking such precaution for the 
 safety of those using these facilities as would be taken by a 
 reasonably prudent and cautious man under just such circum- 
 stances.' 
 
 ^Kirby v. Delaware, etc. Co., 46 be properly raised under some cir- 
 
 N. Y. Supp. 777; Kelly v. Manhat- cum.stances, from the nature of the 
 
 tan, etc. Co., 112 N. Y. 443; Buck v. casualty, which could not arise or 
 
 Railway Co., 134 N. Y. 589, 81 N. E. demand explanation in another. For 
 
 ■638; 111. Cent. R. Co. .v. Hobbs, 58 111. example, where a passenger is quietly 
 
 App. 130; Toledo, etc. Ry. Co. v. seated in a car, and is injured by a 
 
 ■Grush, 67 III. 263; Falls v. Railway collision, or a breakdown, or by the 
 
 Co., 97 Cal. 114; Pa. Ry. Co. v. Mer- cars leaving the track, there can be 
 
 Tiam, 123 Ind. 415; Gunderman v. no room for any inquiry on the ques- 
 
 Eailway Co., 58Mo. App. 370; Lucas tion of contributive negligence. The 
 
 V. Pa. Co., 120 Ind. 205; Hiatt v. Rail- rule of care and caution to be ap- 
 
 way Co., 96 Iowa, 169, 64 K W. 766; plied in any case must properly be 
 
 Mo. Pac. Ry. Co. v. Wortham, 78 one required by the nature of the 
 
 Tex. 75. The supreme court of Michi- case, and such as the circumstances 
 
 gan, in Mich. Cent. Ry. Co. v. Cole- call for. And, in considering prece- 
 
 man, 28 Mich. 440, 447, say: "Except dents, we 'can never leave out of 
 
 in a very general way, the regula- view the peculiar circumstances 
 
 tions which safety requires in one which may or may not require the 
 
 <!ase do not very closely resemble same conduct necessary in others. 
 
 those needed in another. It is very Perhaps as neat a statement of this 
 
 plain that presumptions of fact may principle as has been given is found 
 
 643 
 
§ 630. J 
 
 CAEEIEES OF PASSENGEES. 
 
 [PAET VI. 
 
 § 630. Same subject. — At what particular time and place 
 the care and diligence increases as the passenger enters upon 
 the premises of and takes passage upon the vehicle of the 
 carrier, or where it lessens as the passenger alights from the 
 vehicle and leaves the premises, it is difficult to state. In de- 
 termining this, regard must at all times be had to the sur- 
 roundings. For example, a passenger leaving a steamboat 
 maj' be in very great peril in crossing the gang-plank, and in 
 the same peril in taking passage; the coach proprietor may 
 land his passengers in a very unsafe and dangerous place; the 
 railroad company may unload its passengers among tracks and 
 switches and running engines, or upon a platform which is 
 comparatively safe and apart from any of the dangers of its 
 
 nature and risks, and the business of 
 railroads is one of great risks and re- 
 quiring great caution. But the law 
 cannot require business to be con- 
 ducted upon any unusual basis. It 
 is only experience and advancing 
 knowledge that enable remedies to 
 be adopted for dangers that have 
 not been so common or serious in 
 their consequences as to turn atten- 
 tion to their removal. And clianges 
 in methods of doing business, or dif- 
 ferences of method between differ- 
 ent parties engaged in it, are quite 
 as likely to imperil safety by the un- 
 certainty and perplexity to which 
 all persons would be exposed as tlie 
 failure of any one to adopt some pos- 
 sible safeguard that has not usually 
 been adopted. All rules applied 
 must be reasonable and not oppres- 
 sive, and must be applied with ref- 
 erence to the ordinary conduct of 
 affairs. Every one has a right to ex- 
 pect that railroads will be managed 
 according to the common custom, 
 and railroad companies have a right 
 in their turn to expect conformity 
 to this. Every person dealing with 
 them has his own duties to perform 
 in harmony with theirs." Cross v. 
 Lake Shore R. Co., 69 Mich. 363; 
 Cooley on Torts, 605, 607. 
 
 in Blamires v. Lancashire & York- 
 shire R. W. Co., L. R. 8 Exch. 288. 
 In that case the question was whether 
 a failure of providing means of com- 
 munication with the persons in 
 charge could be allowed to go to the 
 jury, and there being evidence that 
 such means were well known, and 
 that they might have prevented the 
 mischief, the jury were allowed to 
 consider it. Brett, J., in giving the 
 reasons for his concurrence in that 
 view, said: 'It is an action for neg- 
 ligence, and the plaintiff is bound 
 to prove that the railway company 
 have been guilty of doing something 
 which a railway company of ordi- 
 nary care would not do, or omitting 
 to do something which a railroad 
 company of ordinary care would do.' 
 And there being evidence that such 
 precautions were customary among 
 companies of ordinary care, he was 
 of opinion tlie case was one for the 
 jury. And Grove. J., said: 'If a par- 
 ticular precaution has not been 
 hitherto known or used, or if its use 
 is obscure, the omission of it is not 
 negligence; but if it is used to any 
 considerable extent, that changes 
 the case, and makes the omission 
 some evidence of negligence.' The 
 degree of care requii'ed in any busi- 
 ness must be proportionate to its 
 
 644 
 
OH. III.] THE PASSENGER CAEEIBe's LIABILITY. [§ 631. 
 
 business. The degree of care must, as we have often said, be 
 dependent upon the hazards and dangers that must necessarily 
 be encountered by the passenger. 
 
 § 631. Overloading and overcrowding vehicles. — The car- 
 rier is not only bound to furnish conveyance for all who apply, 
 subject to the few limitations noticed, but he must furnish safe 
 and reasonably comfortable accommodations. By a system of 
 inspections and licenses, the carriage by steamboats is regulated 
 as to the number they are permitted to carrj' ; but while there 
 is no legal restriction fixing the number that coaches and rail- 
 roads shall carry, it is well settled that they should convey only 
 what their vehicles will reasonably accommodate. "Where it 
 appeared that the carrier company had admitted passengers 
 upon its cars until all the seats were taken and passengers were 
 compelled to stand up in the aisles and on the platforms of the 
 cars, and that the plaintiff, while standing on the platform, 
 Avas thrown off and injured, a judgment for the plaintiff was 
 sustained upon the theory that the jury might find from the 
 circumstances that the carrier was guilty of negligence in over- 
 loading the cars.^ "Where one upon a crowded street-car found 
 standing room upon the front platform, where he was com- 
 pelled to stand with one foot upon the step and the other upon 
 the platform, holding on by his hands, and while riding in this 
 way a movement of the persons upon the platform with him 
 caused him to lose his hold, which he was unable to regain, and 
 by the pressure of the crowd he was forced off the car, falling 
 under the wheels which crushed his left leg, rendering ampu- 
 tation necessary, it was held to be a question of fact whether 
 such overcrowding of the car was negligence. The court say: 
 "The exposure of a passenger to danger, which the exercise of 
 a reasonable foresight would have anticipated, and due care 
 avoided, is negligence on the part of the carrier; that it may 
 not be held, as matter of law, that the exercise of a reasonable 
 foresight will not lead a street railway company to anticipate 
 that overcrowding of its cars and their platforms will render 
 accidents .to passengers probable ; but the question whether it 
 is chargeable with negligence in permitting such overcrowding 
 
 'Trumbull v. Ericson. 97 Fed. 891; 63; Chesapeake & Ohio v. Clowes, 93 
 Graham v. McNeal, 55 Pao. (Wash.) Va. 189, 24 S. E. 833. 
 
 645 
 
§ 631. j CAERIEES OF PASSENGEBS. [PAET VI. 
 
 is one of fact." ^ Where one entered one of the carrier's re^u- 
 lar trains which was about to start, and, before he learned he 
 could not get a seat, the train was going at a high rate of speed, 
 and on being asked the conductor refused him a seat, where- 
 upon, his fare being demanded, he offered to pay if a seat was 
 furnished, but refused if it was not, it was held that he had a 
 right to refuse payment of fare, and by so doing he did not 
 become a trespasser on the train, for a passenger has a right 
 to be provided with a seat.^ The court, in the course of the 
 opinion, say: "It is, in general, the duty of a railroad com- 
 pany to provide sufBcient cars to carry all who have occasion 
 to travel on its line of road. As the law does not require un- 
 reasonable things, a single instance, or occasional instances, of 
 insufficiency in the amount of means to travel, caused by a 
 rush of travel not reasonably to be expected by the company, 
 would probably be excused ; and the railroad company, like 
 all other common carriers of passengers, must provide those 
 Avhom it carries with the usual reasonable accommodations for 
 comfort in traveling, including seats. This is too well estab- 
 lished to need citation of authorities." The consensus of the 
 authorities seems to be that while it is the duty of the common 
 carrier of passengers to furnish reasonable accommodations 
 for their passengers, which would include seats in their pas- 
 senger cars, unless it should be upon some unexpected occasion 
 when there was a great rush of travel, the passenger would 
 not be upheld in refusing to pay his railroad fare, unless he 
 was upon the train and could not leave it, but would have the 
 option to continue the journey or to leave the train at the first 
 opportunity, and being compelled to thus leave the train might 
 have an action against the carrier for whatever damage re- 
 sulted therefrom. The authorities also hold that if the passen- 
 ger, because of overcrowded trains, is compelled to violate 
 some of the reasonable regulations of the company, like stand- 
 ing upon the platform, and while doing so is injured, he will 
 not be held to be guilty of contributory negligence, and the 
 carrier may be held liable for any damage that results from an 
 
 iLehr v. S. & H. R. Ey. Co., 118 Co., 39 Minn. 3; Louisville, etc. By. 
 N. Y. 556; West Chicago, etc. Co. v. v. Patterson, 69 Miss. 421. See also 
 McNulty. 64 111. App. 549. the last above case as reported in 22 
 
 ^ Hardenberg v. St. Paul, etc. R. L. R. A. 259, with notes of oases. 
 
 646 
 
OH. III.J THE PASSENGER OAEEIEK's LIABILITY. [§ 632. 
 
 injury received at such a time if it should be found that the 
 overloadiag or overcrowding of the train was negligence upon 
 the part of the carrier; and the same liability may be said to 
 attach to street-car companies, or to any other carrier of pas- 
 sengers. 
 
 § 632. Liability of carrier for abuse of passengers.— The 
 passenger is entitled to protection from assaults or abuse from 
 the carrier and his servants, and also from fellow passengers and 
 even strangers. While a passenger, he is to a certain extent 
 under the control of the carrier and at all times entitled to 
 his protection. The passenger is invited to occupy the waiting- 
 rooms of the carrier, is required to travel over the way pre- 
 pared by him in order to take passage upon his conveyances, 
 and, if he be conveyed, has no choice as to the time or manner 
 except as to the several hours at which the carrier departs, or of 
 the conveyances employed. Where the plaintiff boarded the 
 platform of a baggage car on the carrier's road to ride to a 
 place where the cars were being backed to make up a train, 
 the carrier's order forbidding all persons except certain em- 
 ployees to ride on the baggage ears, and directing baggagemen 
 to rigidly enforce the rule, and where, as it appeared, the car- 
 rier's baggageman ordered the plaintiff off while the car was 
 in motion, and the plaintiflf replied that he could not get off 
 because of a pile of wood near the track, whereupon the bag- 
 gage-master of the carrier kicked him off and he fell against 
 the wood and then under the car and was injured, in an action 
 to recover damages it was held that the fact that the plaintiff 
 was a trespasser was no defense, and that the evidence was 
 sufficient to authorize the submission of the defendant's liabil- 
 ity to a jury; and the court refused to disturb a judgment 
 which had been obtained by the plaintiff.' The court in the 
 opinion say: "It is, in general, sufficient to make the master 
 responsible that he gave to the servant an authority, or made 
 it his duty, to act in respect to the business in which he was 
 engaged when the wrong was committed, and that the act 
 complained of was done in the course of his employment. The 
 master in that case will be deemed to have consented to and 
 authorized the act of the servant, and he will not be excused 
 from liability, although the servant abused his authority, or 
 
 1 Rounds V. Del etc. Ry. Co., 64 N. Y. 139. 
 
 647 
 
§ 632.] CAERIEES OF PASSEXGEES. [PAET VI. 
 
 was reckless in the performance of his duty, or inflicted an 
 unnecessary injury in executing his master's orders. The mas- 
 ter who puts the servant in a place of trust or responsibility, 
 or commits to him the management of his business or the care 
 of his property, is justly held responsible when the servant, 
 through lack of judgment or discretion, or from infirmity of 
 temper, or under the influence of passion aroused by the cir- 
 cumstances and the occasion, goes beyond the strict line of his 
 duty or authority and inflicts an unjustifiable injury upon an- 
 other. But it is said that the master is not responsible for the 
 wilful act of the servant. This is the languao'e of some of the 
 cases, and it becomes necessary to ascertain its meaning when 
 used in defining the master's responsibility. ... It seems 
 to be clear enough from the cases in this state that the act of 
 the servant causing actionable injury to a third person does 
 not subject the master to civil responsibility in all cases where 
 it appears that the servant was at the time in the use of his 
 master's property, or because the act, in some general sense, 
 was done while he was doing his master's business, irrespective 
 of the real nature and motive of the transaction. On the other 
 hand, the master is not exempt from responsibility in all cases 
 on showing that the servant, without express authority, de- 
 signed to do the act or the injury complained of. If he is au- 
 thorized to use force against another when necessary in execut- 
 ing his master's orders, the master commits it to him to decide 
 what degree offeree he shall use; and if, through misjudg- 
 ment or violence of temper, he goes beyond the necessity of 
 the occasion, and gives a right of action to another, he cannot, 
 as to third persons, be said to have been acting without the 
 line of his duty, or to have departed from his master's busi- 
 ness. If, however, the servant, under guise and cover of ex- 
 ecuting his master's orders, and exercising the authority con- 
 ferred upon him, wilfully and designed!}^, for the purpose of 
 accomplishing his own independent, malicious or wicked pur- 
 poses, does an injury to another, then the master is not liable. 
 The relation of master and servant, as to that transaction, does 
 not exist between them. It is a wilful and wanton wrong and 
 trespass, for which the master cannot be held responsible. And 
 when it is said that the master is not responsible for the wilful 
 wrong of the servant, the language is to be understood as re- 
 
 648 
 
OH. III.] THE PASSENGEE OAEEIEe's LIABIHTT. [§ 632. 
 
 ferring to an act of positive and designed injury, not done with 
 a view to the master's service, or for the purpose of executing 
 his orders." 
 
 So an express company was held liable for the acts of its 
 agents for cursing, abusing and maltreating the plaintiff im- 
 mediately after refunding to him certain overcharges which 
 he had come to the office to obtain, and the delivery of a re- 
 ceipt therefor. It was held that this treatment was a part of 
 the res gestce, and that the company was liable for the tort.' 
 " The law is well settled that it is the duty of the common car- 
 rier to use the highest degree of care reasonably practicable 
 in exercising police power to protect its passengers from insult 
 and injury by fellow passengers."^ 
 
 In St. Louis V. Myer ^ it was held that " it is the first and 
 highest duty of the conductor of a railroad train, knowing, or 
 having reason to believe, that a passenger is a dangerous luna- 
 tic, to take proper action at once for the security of the other 
 passengers against his violence, and, failing to discharge such 
 duty, to communicate to the other passengers the facts within 
 his knowledge showing, or tending to show, that they are riding 
 in a car with a violently insane man under no guard or re- 
 straint, to the end that thej^ may themselves take suitable pre- 
 cautions for safety." It has also been frequently held that not 
 only is it the duty of the carrier to protect its passengers against 
 insane persons, but also to protect them against drunken pas- 
 sengers, or those persons who are liable to inflict abuse or as- 
 saults upon them. And where the carrier has failed to do its 
 duty in this respect, knowing the situation from its servants 
 or agents, they have been held liable for damages resulting from 
 
 iRiohberger v. American Ex. Co., lyn Heights R. Co., 42 N. Y. Sup. 906. 
 
 13 Miss. 161,81 L. R. A. 390: Dwin- A carrier who permits passengers to 
 
 nelle v. N. Y. Cent. R. Co., 120 JST. Y. wait in its depot for trains is liable 
 
 117, 8 L. R. A. 224; Wise v. Coving- toone who, after purchasing a ticket, 
 
 ton, etc. Street Car Co., 95 Ky. 537; is waiting, and is indecently as- 
 
 Congor, etc. v. St. Paul, etc. R. Co., saulted by iis station agent. Grif- 
 
 43 Minn. 207; Baltimore & Ohio Ry. fith v. Railway Co., 94 N. W. 168. 
 Co. V. Barger, 80 Md. 28, 26 L. R. A. ^ Lucy v. Chicago, etc. R. Co., 64 
 
 230; Texas & P. Ry. Co. v. Williams, Minn. 7, 31 L. R. A. 551: MuUan v. 
 
 23 II. S. App. 879, 62 Fed. 440. A Wis. Cent. R. Co., 46 Minn. 474. 
 railroad company was made liable ^ lo U. S. App. 677, 4 C. C. A. 221, 
 
 for an assault made upon a passen- 54 Fed. 116; St. Louis, etc. R. Co. v. 
 
 ger by its conductor. Luhrs v. Brook- Greenthal, 33 U. S. Ct. Ct. Ap. 100. 
 
 649 
 
§ 63:;.] CAEIUEES OF l^ASSESUEES. [PAET VI. 
 
 such treatment.' But where a person was murdered in a sleep- 
 ing-car by some intruder, stranger, or fellow passenger, it was ■ 
 held that the carrier was not liable if he did not know, or his 
 employees did not know, of an impending danger, and there 
 were no circumstances to arouse their suspicions.^ The court 
 say: "Carriers are paid to preserve watch and ward over their 
 sleeping guests, and they are rightfully held to a due and faith- 
 ful discharge of the obligations thus assumed." But, saj^ the 
 court: "It (the carrier) cannot be deemed to have anticipated 
 or be expected to guard and protect its passengers against a 
 crime so horrid and happily so rare as that of murder. . . . 
 To do so would be to require of them more than human fore- 
 sight as to the minds and motives of men, and make them, in- 
 deed, insurers of the safety of passengers while under their 
 care against all dangers, however remotely connected with 
 their acts of omission or commission." 
 
 In this connection the court quote from Batton v. Railroad 
 Co.^ where it was held that while it was the duty of a railroad- 
 company as a common carrier to protect its passengers against 
 violence or disorderly conduct on the part of its own agents or 
 other passengers and strangers when such violence or miscon- 
 duct may be reasonably expected and prevented, yet it is not 
 liable to an action for damages for a wrong when it is not shown 
 that the company had notice of any facts which justified the 
 expectation that a wrong would be committed ; and the court 
 say in its opinion, "that all the cases upon the subject impose 
 the qualification that the wrong or injury done the passenger 
 by such strangers must have been of such a character and per- 
 petrated under such circumstances as that it might reasonably 
 have been anticipated or naturally expected to occur." 
 
 § 633. Fares — Tickets — pontracts for carriage. — The 
 contract, express or implied, by which the carrier transports- 
 the passenger is one for hire. He is bound to carry the pas- 
 senger who presents himself for carriage, provided he is a 
 proper person and entitled to become a passenger and pays the- 
 
 ' Rommel v. Schanbacher, 120 Pa. See also notes, 111. Cent. R. Co. v. 
 St. 579; Richmond & Co. v. Jefferson, Minor, 69 Miss. 718, 16 L. R. A. 627. 
 89 Ga. 5.54, 17 L. R. A. 571 ; Myer v. 2 Ball v. Chesapeake & Ohio Ry- 
 St. Louis, etc. R. Co., 54 Fed. 116. Co., 93 Va. 44, 33 L. R. A, 792. 
 
 3 77 Ala. 5'Jl, 54 Am. Rep. 80. 
 650 
 
OH. III.] THE PAS8KNGEE CAEEIER's LIABILITY. [§ 633. 
 
 reasonable price charged. As evidence of this payment the 
 carrier may, and generally does, issue to the passenger a ticket 
 which entitles hira to transportation between the points named, 
 or issues to him a mileage ticket or coupon ticket entitling him 
 to carriage for the number of miles or trips, as the case may be. 
 A ticket like a bill of lading may be said to be both a receipt 
 for the payment of the fare and at the same time a contract 
 for conveyance of the passenger according to its terras. And 
 here it may be remarked that fair and honest dealing on the 
 part of both the carrier and the passenger is demanded. The 
 carrier company will be held to a strict performance, upon its 
 part, of the contract it makes, and if upon its tickets it uses 
 ambiguous language as to any conditions or agreements, it will 
 be construed favorably to the passenger and against the carrier. 
 The payment of fare is an important element in the contract 
 for carriage. It is the consideration which induces the under- 
 taking upon the part of the carrier. The ticket is evidence of 
 its payment. The amount charged must be reasonable, and is 
 generally regulated by statutes in the different states, and some- 
 times iixed in the charters that are issued to the carrier com- 
 panies. So, the carrier cannot charge more than the reasonable 
 amount allowed by the statute or its charter, but may charge 
 a less amount if the charge is general and not discriminated ; 
 therefore the carrier often writes or prints into his ticket con- 
 ditions and agreements, basing them upon the consideration that 
 the ticket is sold at a reduced rate of fare, and this considera- 
 tion is held to be a valuable consideration and sufficient to 
 support such agreements, except agreements so limiting the 
 liability of the carrier as to excuse him for his own negli- 
 gence. And so it has been held that conditions in a round-trip 
 excursion railroad ticket stipulating that it shall be used only 
 by the original purchaser, and requiring him to identify him- 
 self as such at the point of destination before beginning the 
 return passage, is not unreasonable or invalid.^ And where a 
 railroad ticket was sold at a reduced rate in consideration of cer- 
 tain conditions, among others, that it should be stamped by the 
 company's joint agent at the place of departure before it would 
 be accepted for the return passage, it was held " the condition 
 
 1 Dangerfleld v. Atchison, etc. R. Co., 63 Kan. 83, 61 Pao. 405. 
 651 
 
§ 633.] 
 
 CAEEIEES OF PASSENGERS. 
 
 [PAET VI. 
 
 was reasonable, and one failing to have the ticket stamped was 
 not entitled to passage thereon."' 
 
 The court say: "The theory upon which unusual terms in 
 excursion tickets are upheld is that (1) they are sold at re- 
 duced rates of fare and not at the usual or ordinary rates. 
 (2) They are sold for special occasions and not for ordinary 
 and unlimited use. (3) By accepting such ticket when he has 
 the oj)tion to purchase the usual and ordinary ticket, the pas- 
 senger enters into a contract with the carrier different from 
 that implied by law upon the purchase of an ordinary ticket at 
 full rates of fare. (4) The purchaser is bound in such cases by 
 the terms of the contract. He is entitled to its advantages of 
 reduced fare, and is bound by reasonable regulations for its 
 use. . . . It is equally for the benefit of the carrier and 
 the public that the right to make these special contracts, when 
 reasonable, should be upheld and enforced. Large numbers of 
 passengers take advantage of excursion rates who would oth- 
 erwise not be able or willing to travel at all. People of lim- 
 ited means most generally avail themselves of these reduced 
 
 1 Watson V. Louisville, etc. R. Co., 
 104 Tenn. 194, 49 L. R. A. 454, citing 
 Mosher v. Railway Co., 137 U. S. 390; 
 Boylan v. Railway Co., 133 U. S. 146; 
 Edwards v. Railway Co., 81 Mich. 364. 
 In Edwards v. Railway Co. a round- 
 trip ticket from Lansing to Chicago 
 was sold at a reduced rate. Condi-, 
 tions were printed upon the back of 
 the ticket, and one of the conditions 
 was that the ticket should not be 
 good to return unless the passenger 
 identified himself to the ticket agent 
 at Chicago, and procured his stamp 
 upon the ticket and himself signed 
 it. Tliese conditions were signed by 
 the passenger; he, however, failed to 
 identify himself to the ticket agent 
 at Chicago when ready to return and 
 obtain the stamp required, but suc- 
 ceeded in boarding the train, but not 
 by the usual way of passing the gate- 
 keeper. His ticket was refused; he 
 was finally put oflE the train and 
 afterwards brought an action for 
 
 damages. Judge Champlain in the 
 opinion said: "Parties capable of 
 contracting may enter into such 
 agreements as they choose, and if 
 they rest upon a sufficient considera- 
 tion, and are not void for illegality, 
 nor as being against public policy, 
 they are binding upon them. The 
 contract of carriage in this case, in- 
 cluding the conditions, was a valid 
 and binding agreement. The con- 
 ditions were reasonable and rested 
 upon a sufficient consideration, 
 namely, the reduced rate of fare." 
 In Eastman v. Maine Cent. Ry. Co. 
 (N. H., 1900), 46 Atl. 54, it was held 
 that "a condition on which a mileage 
 book is purchased of a carrier — 
 that, if presented by another than 
 the person to whom it was issued, it 
 shall be forfeited — is valid." Louis- 
 ville, etc. Co. V. Wright, 47 N. E. 491; 
 Acton T. Castle Mail-packet Co., 7ii 
 L. T. 158; Thompson v. Trusdale, 61 
 Minn. 139. 
 
 652 
 
CH. in.] THE PASSENGEE CAEEIEE's LIABItlTT. [§ 634. 
 
 fares, and do so with the full expectation that they will be 
 subjected to requirements and inconveniences that they would 
 not meet on ordinary occasions when paying full fare. On 
 the other hand, carriers reap a benefit from them in increased 
 travel with increased receipts though not the usual profits. It 
 is not consistent with public policy to so restrict and hamper 
 the use of such tickets as to prevent the running of excursions 
 and the granting of such rates. To do so would be to deprive 
 persons of limited means of the opportunities for travel which 
 they desire." 
 
 It has been held, however, that provisions or conditions 
 printed upon the face of a passenger's return-trip ticket, to the 
 effect "that it will not be valid for the return journey unless 
 stamped by the agent of the company at the place from which 
 the return journey is authorized, forms no part of the contract 
 between such purchaser as a passenger and such company as a 
 carrier, and does not qualify the usual rights and obligations 
 of either if such purchaser does not assent to such conditions 
 before or at the time he purchases such ticket." ^ 
 
 § 634. Where the carrier or agent is at fault. — Thus far 
 we have noticed cases where the passenger was at fault in vio- 
 lating the conditions of the contract. But where the violation 
 of the contract is attributable to the fault of the carrier or his 
 agent the rule is very different. As where a passenger had 
 purchased a round-trip ticket, and on it was the condition that 
 he was to present it to the agent at the terminus of his trip, 
 sign the ticket in the agent's presence, and procure it to be 
 stamped by the agent in order to make it valid for use on his 
 return trip, and the passenger did present himself at the ticket 
 office, did sign his name to his ticket in the presence of the 
 agent, and gave it to the agent, who took it to the rear end of 
 his office, and afterwards returned with it folded and handed 
 it with a sleeping-car ticket to the passenger, but after the pas- 
 senger had proceeded for a distance upon his return trip it was 
 discovered that the ticket was not stamped, and the passenger 
 for this reason was ejected from the train, it was held, in an 
 action for damages, that the company was liable.^ The court 
 say in discussing this principle : " It has been held that it is a 
 
 'Lake Shore & Mich. S. Rj. Co. v. 2 Northern Pao. Ry. Co. v. Pawson, 
 Mortal, 8 Ohio Dec. 134 70 Fed. 585, 30 L. E. A. 730. 
 
 653 
 
§ 634.J OAEEIEES OF PASSENGERS. [PAET VI. 
 
 reasonable regulation upon the part of the company to require 
 passengers getting upon its railroad train without a ticket to 
 pay additional fare ; but in this connection the court declare that 
 a reasonable opportunity must be given to the passenger to en- 
 able him to purchase the ticket; that if the passenger fails to 
 purchase a ticket solely on account of the premature closing 
 of the ticket office, or of the failure of the company to have an 
 office for the sale of tickets, he cannot be required to pay ad- 
 ditional fare, and if expelled for the non-payment of the addi- 
 tional fare, after paying or offering to pay the regular fare, he 
 is entitled to recover damages for the expulsion.' The reason 
 given is, that to allow a railroad company to enforce its rule 
 for additional fare under such circumstances would be punish- 
 ing the passenger for the railroad company's neglect of duty. 
 Unless the railroad company furnishes the necessary conven- 
 iencies or facilities for procuring tickets, the passenger cannot 
 be considered to be in any manner at fault. With reference 
 to the rights of a passenger to be carried on the wrong coupon, 
 where the coupons were detached by the conductor on the 
 going trip, and the returning coupon instead of the going coupon 
 is retained by the conductor, and the going coupon instead of 
 the returning coupon given to the passenger, which the passen- 
 ger retains without discovering the mistake until he presents 
 it to the conductor on the return trip, and then makes his ex- 
 planation as to how the mistake occurred, the courts have held 
 that under such circumstances the passenger has the lawful 
 right to be carried on his return trip on presenting the going 
 coupon with the explanation; and if expelled for not paying 
 his fare he is entitled to recover damages for the expulsion.- 
 These cases, as well as others previously referred to, all pro- 
 ceed upon the ground that the passenger was wholly without 
 fault; that he had done all that could reasonably be required 
 of him to do, and that the railroad company, by the mistake, 
 carelessness or negligence of its agents or conductors, was itself 
 
 iPool V. Northern Pac. Ey. Co., 16 88 Ind. 381, 45 Am. Rep. 464; Balti- 
 
 Oreg. 261 ; State v. Hungerford, 39 more & Ohio Ry. Co. v. Bambray, 16 
 
 Minn. 7; Everett v. Chicago, etc. Co., Atl. 67; Wightman v. Chicago, etc. R. 
 
 69 Iowa, 15, 58 Am. Rep. 207. Co., '73 Wis. 169. 3 L. R. A. 183; Phila- 
 
 ^Pa. etc. Ry. Co. v. Bray, 125 Ind. delphia,etc. R Co. v. Rice, 64 Md. 63; 
 
 229; Lalie Erie, etc. Ry. Co. v. Fix, Rouser v. Railway Co., 97 Mich. 565. 
 
 654 
 
<3H. III.J THE PASSENGEE OAEEIEe's LIABILITT. [§§ 635, 636. 
 
 at fault. This is the underlying principle of all the well con- 
 sidered cases upon this subject; this principle is fair to both 
 parties; it is sound, reasonable and just.^" 
 
 § 635. Exhibition and surrender of tickets. — There 
 
 are certain regulations not binding merely because they are a 
 part of the contract, but made effective and of force because 
 they are considered to be reasonable, just and necessary in 
 ■oMer to carry out the obligations of the carrier company to 
 the public. Among these may, be mentioned the requirement 
 that passengers will not be permitted to board the trains or 
 boats or vehicles until they have passed through the gate sep- 
 arating the vehicles from the public waiting-rooms and had 
 their tickets punched by the gate-keeper. This is a necessary 
 and important regulation, especially at large city stations 
 where trains are made up and numerous passengers are ad- 
 mitted for carriage, or where great steamboats are loaded with 
 passengers. It necessarily facilitates the work that must be 
 ■donej and in most cases, it may be said, makes it possible for 
 the carrier to perform more efficient and better service. The 
 carrier may enforce such a regulation and prevent its viola- 
 tion.^ The regulation, too, that a passenger is bound to show 
 his ticket to the person who is in charge of the vehicle, is held 
 to be a reasonable one. 
 
 §636. Lost or mislaid tickets. — As we have seen, 
 
 ■the regulation that a passenger must produce and show his 
 'ticket when called for is not only reasonable, but it is without 
 ■doubt a necessary regulation in order to facilitate the business 
 and make it possible for the carrier to transport the passen- 
 ger. And where a passenger has lost or mislaid his ticket, 
 and cannot produce it when called upon, after having been 
 given a reasonable time to find it and produce it, he may be 
 required to pay his fare or be expelled from the train or the ve- 
 'hicle. While this regulation may in some instances work a 
 great hardship, it is- evident that as a general rule it is nec- 
 
 'Arailroad company whose ticket for the agent's mistake, since the 
 
 ■was given by mistake to a passenger breach of duty is that of the com- 
 
 in lieu of a ticket of another com- pany whose ticket was desired. Scott 
 
 ■pany which was called for, where it v. Eailway Co., 144 Ind. 135. 
 "was bought in a union depot of an 2Dickerman v. Union Depot Co., 
 
 «gent who had authority to sell tick- 44 Minn. 433. 
 ets for both companies, is not liable 
 
 655 
 
§ 037.] CAKEIEES OF PASSENGEKS. [PAKT VI. 
 
 essary, otherwise it would open the door for fraud or decep- 
 tion, and the carrier would necessarily suffer for want of it. 
 And so it has been held that a rule requiring the conductor to 
 eject from the train a passenger who refuses to produce a 
 ticket or pay his fare on demand is a reasonable one, and the 
 purchaser of a non-transferable commutation ticket, who has 
 lost it, and refuses on account of such loss to pay his fare upon 
 the train, falls within the rule, and cannot maintain an action 
 of tort against the company to recover damages for being 
 ejected by the conductor for non-compliance with it.^ 
 
 § 637. Stop-over tickets — Time limit — Train limit, 
 
 etc. — The presumption is, that when a passenger purchases a 
 ticket he will use it at once, or within a reasonable time, and 
 make a continuous jouriie3'; and so it has been held that it is 
 a reasonable regulation that a passenger, if he would stop over 
 between the points for which he is ticketed, must, if his ticket 
 is limited, surrender it and obtain a stop-over check or ticket; 
 that the carrier may limit the time the ticket will be good, and 
 the train or class of trains upon which it will be taken. Where 
 a passenger boards a train upon a ticket which he knows does 
 not, upon its face, entitle him to passage because the time for 
 which it purports to be valid has expired, even though he thinks 
 the limitation unreasonable, and is ejected from the train for 
 refusing to pay fare, he cannot in an action recover damages, 
 nor is he entitled to have the price refunded. In such a case 
 the court say: "By not using the ticket within the time fixed 
 by it, his rights under the ticket were at an end, and, before 
 he could rightfully claim a passage, he must obtain a ticket 
 entitling him to one. For that purpose he should apply to the 
 agent of the company authorized to issue tickets, and there 
 urge his claim, if such he had, to a ticket, because of his former 
 payment, and not attempt its adjustment with the conductor, 
 whose duty it was to take up and cancel, and not to issue, 
 tickets. Had he not presented the ticket, but claimed a pas- 
 sage because, more than a year before, he had purchased one, 
 and had not used it, we assume no one would contend that he 
 
 1 Crawford v. Railway Co., 26 Ohio passenger having reasonable time to 
 St. 580; Hibbard v. Railway Co., 15 find his ticket before being ejected 
 N. Y. 4.j5; Cooper v. Railway Co., from the train, see Maples v. Eail- 
 K R 4 Exch. Div. 88. As to the way Co., 38 Conn. 557. 
 
 656 
 
<;h. iii.J the passengee caeeiee's liability. [§ 638. 
 
 was entitled to a passage, and why ? Because public policy, as 
 well as public sentiment, would condemn a rule so palpably 
 unreasonable." ^ If because of the fault of the carrier the pas- 
 senger cannot comply with the conditions, he will not forfeit 
 his ticket.^ 
 
 §638. Tickets over connecting lines.— These tickets are 
 usually issued with coupons attached for each connecting road 
 or carrier, and unless by contract it appears otherwise it will 
 be held that the initial carrier la the sale of such a ticket is 
 acting as the agent of the connecting carrier. It is not con- 
 templated, nor does the law require, unless it be so stipulated 
 in the ticket, that the passage shall be continuous, but the- 
 holder of such a ticket may stop over at the terminus of each 
 line as long as he pleases, provided he commences his journey 
 over the last connecting line within the life of the ticket. And 
 so it has been held that it is only required that the holder of 
 such a ticket present himself upon the vehicle of the last con- 
 necting carrier and take passage at a time within that limited 
 by the terms of the contract, and that it is not necessary that 
 he should complete the journey within such time.' 
 
 1 Trezona v. Railway Co., 107 Iowa, 390. In Hill v. Railway Co., 63 N. Y. 
 22, 43 L. R A. 136; Bradshaw v. Rail- 101, it was held that " where a rail- 
 way Co., 135 Mass. 407, 46 Am. Rep. road passenger ticket by its terms 
 481; McKay v. Railway Co., 84 W. limits the time within which it is to 
 Va. 65, 9 L. R A. 132. be used, it does not exonerate the 
 
 2 In Drew v. Cent. Pacific Ry. Co., holder from the payment of fare if 
 51 Cal. 425, it was held that " if a he take passage on the road after the 
 passenger who has purchased a expiration of the time; and in case 
 ticket from a railroad company, of his refusal to pay, the conductor 
 which is silent on the subject of his has a right to eject him from the 
 stopping over, stops over before he train." Wilsey v. Railway Co., 83 
 reaches the point to which the ticket Ky. 511; Elmore v. Sands, 54 N. Y. 
 entitled him to ride, he cannot re- 513, held that "a railroad company 
 snme his journey on the ticket;, that has a right to provide and insist that 
 if the passenger leaves the train be- its passenger tickets shall be used 
 fore he has arrived at the point to upon the day when issued; also, that 
 which his ticket entitled him to every passenger, when entering a 
 iide, he voluntarily terminates his train, shall pay his fare or produce a 
 contract with the company to carry ticket showing his right to ride upon 
 him to such point." Citing Deitrich that train ; and in enforcing such reg- 
 V. Eailway Co., 71 fa. St. 483; Mc- ulations, neither it nor its employees 
 Clure V. Railway Co., 84 Md. 533; are liable." 
 
 Hatton V. Railway Co., 39 Ohio St. ^ Lundy v. Cent. Pac. Ry. Co., 66 
 379; Churchill v. Railway Co., 67 111. CaL 191, 56 Am. Rep. 100; Evans v. 
 43 657 
 
§§ 639, 640.] CAEEIEES OF PASSENGERS. [PAET TI. 
 
 § 639. — Delayed by wreck or by the fault of the car- 
 rier. — But it has been held that "a ticket over conaectiag 
 roads limited as to the time, but which is a joint contract of 
 the carriers, entitles a passenger who is delayed by a wreck 
 on one of the roads to complete his journey although the time 
 expires before he reaches the last of the connecting roads." ^ 
 
 § 640. Tickets, passes and other transportation fraudu- 
 lently obtained or fraudulently used. — The maxim of the law, 
 old as the law of contracts, that " fraud vitiates all contracts," 
 applies to the contracts or obligations to carry passengers as 
 effectively as to any other contract. The passenger who pre- 
 sents a ticket, pass, or transportation for his passage may be 
 generally said to be entitled to be conveyed to the station or 
 place mentioned therein; but if the ticket or transportation 
 has been obtained by fraud, either by himself or some other 
 person, the carrier may refuse to honor it, and may take it up 
 and demand payment of fare. In Frank v. Jngalls^ the court 
 say: "It thus seems to be well established that a railroad 
 ticket is a receipt or voucher; it has more the characteristics 
 of personal property than that of a negotiable instrument. 
 When the possession of such a ticket has been obtained by 
 fraud, the company has parted with the possession of it but not 
 the title to it, and the person purchasing from the holder, al- 
 though for value and without notice of equities, takes no bet- 
 ter title than the party had who fraudulently obtained posses- 
 sion of it." And where a ticket was obtained by false and 
 fraudulent representations, it was held that " the carrier would 
 be justified in taking it up and canceling it." ' One who con- 
 ceals himself upon the vehicle and undertakes to beat his way 
 is not entitled to passage ; for whoever in any way, by false- 
 hood or by fraud, undertakes to ride free upon the carrier's 
 conveyance is not a passenger.* And so a person riding on a 
 free pass issued to another person and not transferable, or upon 
 a non-transferable mileage ticket, who falsely represents him- 
 
 Railway Co., 11 Mo. App. 463; Aur- 2 41 Ohio St. 560. 
 
 bach V. Railway Co., 89 N. Y. 381; 43 3 Moore v. Railway Co., 41 W. Va. 
 
 Am. Rep. 390, and see oases in note 160. 
 
 16 L. R. A. 471. * MoVeety v. Railway Co., 45 Mina 
 
 1 Gulf, etc. R. Co. V. Looney, 85 268, 47 N. W. 809; Condran v. Eail- 
 
 Tex. 158, 16 L. R A. 471 and notes, way Co., 14 C. C. A. 596, 67 Fed. 522. 
 
 658 
 
CH. III.] THE PASSBNGEE CAEEIEIi's LIABILITY. [§ 641. 
 
 self to be the person to whom it was issued, and by way of 
 carrying out the deception signs the person's name to the 
 check, to whom the mileage or pass was issued, cannot be con- 
 sidered to be entitled to the rights of a passenger, and in such 
 case the carrier may take up the pass or mileage and require 
 the person undertaking its fraudulent use to pay his fare. In 
 Toledo, etc. B. Co. v. Beggs} it was held that " a party travel- 
 ing in a railroad coach on a free pass issued to a different per- 
 son, which is not transferable, and passing himself as the 
 person therein named, is guilty of such fraud as to bar his right 
 to recover for a personal injury, except for gross negligence on 
 the part of the company amounting to wilful injury." And 
 the same rule has been held to apply to commutation mileage 
 tickets upon which was a printed notice that the ticket was 
 not transferable, and if presented by any other than the person 
 whose name appeared inside the cover, and whose signature was 
 attached below, it would be forfeited to the company.^ And 
 it has been held that if a person knowingly induces a con- 
 ductor of a railroad train to violate a rulei of the company and 
 carry him without charge, he is guilty of a fraud on the com- 
 pany and cannot claim the rights of a passenger.' 
 
 §641. Sleeping-car companies. — Sleeping-car companies, so 
 far as becoming responsible for the carriage of passengers and 
 their valuables, are not common carriers of passengers. As is 
 well understood, railroad companies are under contracts to 
 haul the cars of sleeping-car companies, and they alone are 
 liable to the passenger as common carriers upon their contract 
 
 •85 III. 80. tation, or if he rides upon a part of 
 
 'Way V. Chicago, etc. Ry. Co., 64 the train from which passengers are 
 
 Iowa, 48; and see oases cited in opin- excluded, or takes passage upon a 
 
 ion, p. 53. Thompson on Carriers train not allowed to carry passen- 
 
 of Passengers, 43, sec. 3, where the gers, knowing that his act is against 
 
 author says this doctrine extends the rules of the carrier, and in per- 
 
 farther and includes the case of mitting it the conductor is disobedi- 
 
 one who knowingly induces the con- ent, he is guilty of a fraud and not 
 
 duotor of a train to violate the regula- entitled to a passenger's ride." Cit- 
 
 tions of the company and disregard ing Toledo, etc. Co. v. Brooks, 81 111. 
 
 his obligations of fidelity to his em- 345; Same v. Beggs, 85 111. 80; Rob- 
 
 Ployer. 'ertson v. Railway Co., 23 Barb. 91; 
 
 ' McVeety v. Railway Co., 45 Minn. Union Pac. Ry. Co. v. Nichols, 8 Kan. 
 
 288. The court say: "But if a per- 505; Gulf Ry. Co. v. Camel, 76 Tex. 
 
 son solicits and seeks free transpor- 174, and other cases. 
 
 659 
 
§ 641.] CAEEIEES OF PASSENGEES. [PAET TI. 
 
 for carriage. The passenger rides upon the ticket, or permis- 
 sion issued by the railroad company;^ the railroad company 
 by its servants and through its direction manages and controls 
 the running of the train and the receiving of all passengers 
 and their effects upon it, and is therefore liable to the passenger 
 for his baggage and valuables as a common carrier.^ But while 
 sleeping-car companies are not liable, as has been said, as com- 
 mon carriers, they hold out to the public that passengers who 
 pay an extra price for riding in their vehicles will be cared for, 
 and such baggage as is usually understood to be hand-baggage 
 will be looked after, especially when such passengers are asleep 
 in their berths, and for this purpose the companies keep a serv- 
 ant on board the car to attend to the wants of passengers and 
 to keep watch over their effects when the passenger is unable 
 to do so ; and while, as was said by the court in Blum v. Pull- 
 man Car Co., above cited, " neither as a common carrier nor as 
 an innkeeper is a sleeping-car company responsible," still it 
 was held that " it must not only furnish a berth to its guests, 
 but keep a watch during the night, exclude unauthorized per- 
 sons from the car and take reasonable care toward preventing 
 thefts; and if loss should occur by reason of negligence in this 
 regard the company is liable for such articles as are usually 
 carried by a passenger about his person, and such a sum as may 
 be deemed reasonably necessary for traveling purposes." 
 
 Where the porter of a car went to sleep during his watch 
 and also left the car at a station with no one on watch inside, 
 it was held that the sleeping-car company should be held 
 liable for loss of the passenger's effects.' And so where both 
 the conductor and the porter, being asleep at the rear end of 
 the car for two or three hours, left the door unlocked, and 
 a brakeman sitting in the front end of the car, during which 
 time there was stolen from the passenger's berth, while he was 
 asleep, certain of his baggage, it was held that the company 
 
 1 Pullman Car Co. v. Smith, 73 III. Pullman Car Co. v. Pollock, 69 Tex. 
 
 360, 24 Am. Rep. 258; Scaling v. Pull- 102. 
 
 man Car Co., 24 Mo. App. 29; 111. 2 Blum v. Pullman Car Co., 1 Flip. 
 
 Cent. Ry. Co. v. Handy, 68 Miss. 609, 500 (C. C. W. D. Tenn.), Fed. Gases 
 
 56 Am. Rep. 846; Wing v. Sleeping- 1574. 
 
 Car Co., 143 Mass. 267, 58 Am. Rep. ' Pullman Car. Co. v. Adams, 120- 
 
 135; WoodruflE Sleeping-Car Co. v. Ala. 581, 45 L. R. A. 767. 
 Deihl, 84 Ind. 474, 43 Am. Rep. 102; 
 
 660 
 
OH. III.J THE PASSENGEK CAEKIEe's LIABILITT. [§ 641. 
 
 was liable; but the liability of a sleeping or palace-car com- 
 pany is not limited to the care of the baggage and articles of 
 the passengers during the night, but they are liable at all times 
 to exercise ordinary vigilance over such property of a pas- 
 senger as would usually be taken into the car with him and is 
 placed in the care and custody of the servants of the company. 
 As has been said, the baggage for which the company may 
 become liable, for failure to exercise ordinary diligence for car- 
 ing for it, is limited to what is ordinarily understood as hand- 
 baggage, or articles which are kept with the passenger upon 
 his journey; such as valises, overcoats, umbrellas, and that 
 which is regarded as necessary to the comfort of the traveler 
 during his occupancy of the car. In determining what may be 
 considered as such baggage, regard may be had to the plaint- 
 iff's station in life, the length, purpose and probable duration 
 of the journey.^ The liability of the company, however, is not 
 that of an insurer of the baggage of the passenger, but it is in 
 the nature of the liability of a bailee for hire. It is said by the 
 Massachusetts court that "such a rule is required by public 
 policy, and by the true interests of both the passenger and the 
 company." ^ The liability being based upon the negligence of 
 the servants of the company, it therefore follows that the pas- 
 senger's contributory negligence would bar a recovery.' But 
 while the mere fact that the passenger has been robbed when 
 asleep would not of itself be evidence of negligence, yet if it 
 should appear that the circumstances of the loss tend to show 
 that but for the negligence of the company or its servants the 
 loss would not have occurred, 2, prima facie case of negligence 
 would arise, and the burden of proof of ordinary diligence in 
 such case would be upon the company. As has been said, " the 
 sleeping passenger can never know whether the defendant's 
 servants are keeping diligent watch, and they have the strong- 
 est interest to exonerate themselves from any charge of negli- 
 gence. A rule that would prevent the case from going to the 
 
 lEoot V. N. Y. Cent R. Co., 28 Mo. Whitney v. Pullman Car Co., 143 
 
 App. 199; Hampton v. Pullman Car Mass. 243; Wicher v. Boston, etc. Co., 
 
 Co,, 42 Mo. App. 134. 176 Mass. 27.'5. 57 N. E. 601; Levien v. 
 
 2 Lewis V. New York Sleeping-Car Webb, 61 N. Y. S. 1113, 30 Misc. Rep. 
 
 Co., 143 Mass. 367, 58 Am. Rep. 135. 196; Lycett v. Railway Co., 42 N. Y. 
 
 'Root V. Sleeping-Car Co., mpra; S. 413, 
 
 661 
 
§ 642.] CAEEIEES OF PASSENGERS. [PAET, VI, 
 
 jury without affirmative proof that, at the time when the theft 
 took place, or at some time during the night, the defendant's 
 servants were not keeping watch, would, in most cases, deprive 
 passengers of any redress for the losses which they might sus- 
 tain through the negligence of such carriers. Such a rule is 
 not only against reason, but is against public policy, and ought 
 not to be declared." ^ 
 
 § 642. Not liable as innkeepers. — Some of the courts have 
 held that the sleeping-car companies are liable as innkeepers,^ 
 but the great weight of authority is against such a holding. As 
 was said by the Kentucky court, "a sleeping-car is no more an 
 inn on wheels than a steamboat is an inn on water." ' " The 
 traveler cannot, like the guest of an inn, lock his door and 
 guard against danger." And as has been said, " the peculiar 
 construction of such cars . . . the innkeeper's right to ex- 
 clude all but guests and their own servants, the company being 
 bound to admit train employees, the inability of the defendant 
 to protect the passenger, the railroad conductor having power 
 to eject him for non-payment of fare or violation of the rules 
 and regulations," all these would indicate that there is a 
 great diilerence between the innkeeper and the sleeping-car 
 company. The passenger is entirely in the care and custody 
 of the servants of the company. He lies down at night and 
 sleeps, not behind bolts and locks, but protected only by the 
 servants of the company who are supposed to be on watch.* It 
 therefore follows as matter of course that for thefts committed 
 by its servants the company would be liable."^ 
 
 1 Bevis V. Railway Co., 26 Mo. App. 710, 25 S. E. 787. As to right to eject 
 21. passengers holding tickets for sta- 
 
 2 Pullman Car Co. v. Lowe, 28 Neb. tions at which trains do not stop, see 
 339, 6 L. R. A. 809; Pullman Car Co. Chicago, etc. Co. v. Bills, 104 Ind. 13; 
 V. Gaylord, 32 L. Reg. (O. S.) 791. Atchison, etc. Ry. Co. v. Gants, 38 
 
 3 Blum V. Pullman Car Co., swpro. Kan. 608; Patry v. Railway Co., 77 
 * Mann Boudoir Co. v. Dupre, 64 Wis. 218. In Shelton v. Railway Co., 
 
 Fed. 646, 21 L. R. A. 289. Sleeping-oar 29 Ohio St. 314, it was held that "a 
 company liable for property stolen i-ailroad company has the right to 
 while in porter's care. Pullman Car require passengers to pay fare, and 
 Co. V. Lowe, 28 Neb. 339. For collec- a rule directing its conductors to ra- 
 tion of cases see L. R. A. Index-Di- move from the cars those who refuse 
 gest, 117. to comply with the requirement is 
 6 Allen V. Railway Co., 119 N. C. reasonabla" 
 
 663 
 
OH. III.] THE PASSENGER CAEEIEe's LIABILITY. [§ 643. 
 
 HI. 
 
 Ejection of Passengees and Intetjdees peom the Yehiole of 
 
 THE CaEEIEE. 
 
 § 643. The right — The cause — The manner — By whom. 
 
 A common carrier of passengers may insist upon the passenger, 
 or person upon his vehicle, complying with certain rules and 
 regulations that are just and reasonable, and which must neces- 
 sarily be complied with as a fulfillment of the implied con- 
 tract for carriage upon the part of the passenger. As, for ex- 
 ample, one of the evidences of the right of the person to be 
 carried is that he has a ticket, or proffers the reasonable com- 
 pensation due the carrier for transportation ; that he conducts 
 himself in an orderly and decent manner; that he is a fit per- 
 son to be carried and complies with the just and reasonable 
 regulations of the carrier; that he has taken his place in the 
 usual and proper place for passengers upon the vehicle of the 
 carrier. In short, that he has done that which entitles him to 
 become a passenger. If, therefore, the passenger refuses to com- 
 ply with these reasonable regulations, or if the person upon the 
 vehicle of the carrier is a trespasser and refuses to become a 
 passenger by compliance with such rules and regulations of 
 the carrier, such person may be ejected from the vehicle, for 
 the law will not hold the carrier to the performance of his du- 
 ties and obligations to the public and those whom he carries as 
 passengers, and at the same time deprive him of the right to 
 insist upon compliance upon the part of those whom he carries 
 with such just and reasonable regulations as are necessary in 
 order to make it possible for the carrier to do his duty to the 
 passenger and to the public. There is, as we have seen, not 
 only an implied contract on the part of the carrier to carry the 
 passenger safely, and to exercise that high degree of diligence 
 which the law lays upon him, but there is also an implied ob- 
 ligation upon the part of the passenger that he will comply 
 with all the just and reasonable regulations of the carrier. In- 
 volved, therefore, in the question of liability for ejecting a pas- 
 senger, or an intruder, or trespasser from the vehicle of the 
 carrier, is not only the right of the carrier to do so, but the 
 cause for which it is done, the manner in which it is done, and 
 the authority of the servant or person who does it. 
 
 663 
 
§§ 644, 645.] CAEEIEES OF PASSENQEES. [PAET TI. 
 
 §644. The causes numerons. — It would hardly be 
 
 possible here to enumerate the causes for which the carrier 
 might expel the passenger. It may be said, however, generally, 
 that when a person is once accepted as a passenger he cannot 
 be expelled except for some misconduct; as for refusal to pro- 
 duce a ticket or pay his fare, for drunkenness, disorderly con- 
 duct, for practicing or committing offenses, for crimes or mis- 
 demeanors upon other passengers; as, for example, stealing 
 from them, picking pockets, gambling, and the like, being af- 
 flicted with a contagious disease, or in general for refusing to 
 comply with the reasonable rules and regulations of the car- 
 rier. And so it has been held that the conductor of a train is 
 authorized to put off, without using unnecessary force, a pas- 
 senger whose ticket calls for a station at which he knows that 
 the train does not stop, the passenger refusing to pay his fare, 
 although such passenger has been informed by the conductor 
 of another train that if he boards the train the conductor would 
 be obliged to let him off at his station. ^ " A passenger on a 
 railroad train must show his ticket, or conductor's check given 
 in the ticket's place, when called on by the conductor, and if 
 he fails to do so, whether wilfully or because he has forgotten 
 having the ticket or check, and refuses to pay fare, he cannot 
 recover damages for his ejection if unnecessary force is not 
 used."^ This is undoubtedly the prevailing rule. And where 
 a father refused to pay the fare of his child, who was eight 
 years of age and liable to pay fare, it was held " that the law 
 implies a contract on the part of a parent who enters a rail- 
 road train with a child non sui juris, and subject to payment 
 of fare, to pay the fare of such child, and upon refusal to do so 
 the railroad company has the right to eject both the father 
 and the child from the train." ^ 
 
 § 645. Passenger's reliance upon statements and 
 
 promises of servants and agents of the carrier. — The passen- 
 
 1 Price V. Railway Co., 46 W. Va. under his care will justify his expul- 
 
 538, 33 S. E. 355 Trezona v. Railway, sion though he himself is a minor. 
 
 Co., 107 Iowa, 23; 111. Cent. R Co. v. Warfield v. Railway Co., 104 Tenn. 
 
 Bauer, 66 111. App. 134. 74; Lake Shore, eta R. Co. v. Orn- 
 
 ■i Braun v. Railway Co., 79 Minn, dorflf, 55 Ohio St. 589, 38 L. R. A. 140; 
 
 404, 83 N. W. 675; Price v. Railway Philadelphia, etc. R. Co. v. Hoeflict, 
 
 Co., 46 W. Va. 538. A passenger's 63 Md. 300, 50 Am. Rep. 233. 
 failure to pay the fare of a child 
 
 664 
 
<1H. III.j THK PASSENGER CAEEIEe's LIABILITY. [§ 645. 
 
 ger, as a general rule, is in the hands of the servants of the 
 carrier, and has a right to rely upon the statements and con- 
 duct of such servants, where such statements or conduct are 
 not clearly and palpably unreasonable. But while the passen- 
 ger has the right to so rely upon these statements, it has been 
 generally held that conductors are not bound to rely upon the 
 statements of other Conductors, or even agents at the stations, 
 «ommunicated to them by the passenger. And so where pas- 
 sengers have been ejected from the train of the carrier for the 
 reason that a former conductor had taken up his ticket and 
 failed to issue to him a check, or other evidence that he, was 
 ■entitled to be conveyed, the courts have held that the con- 
 ductor so ejecting the passenger was not guilty of breach of 
 duty, but that the railroad company might be liable because 
 ■of the action of the former conductor; as where it was a regu- 
 lation of a railroad company that one who pays his fare be- 
 tween two points on the road, but desires to stop over at an 
 intermediate point, is required to procure a stop-over ticket 
 from the conductor and present it to the conductor of the 
 train on which he seeks to complete his journey as evidence of 
 his right to do so. 
 
 And "where a passenger asks the proper conductor for a 
 stop-over ticket, and, through the conductor's fault, receives, 
 instead thereof, only a trip check," it was held that " such a 
 "regulation was a reasonable one, and that the second conductor 
 may still demand of him the additional fare, and upon his re- 
 fusal to pay it may eject him from the train at some usual stop- 
 ping place, using no unnecessary force; and that such ejection 
 will be no ground for recovery against the company, though 
 such company will be liable to the passenger for the fault of 
 the first conductor."' But upon this question the authorities 
 are not entirely harmonious. In the case of O^Rourhe v. Rail- 
 way Co? the authorities have been collected in the opinion of 
 
 'Yorton v. Railway Co., 54 Wis. ^expulsion of a passenger by a con- 
 ■284; Van Dusan v. Kailway Co., 97 ductor, who had no ticket because it 
 Mich. 439; Hufford v. Railway Co., had been taken up by another con- 
 53 Mich. 118. A passenger is not ductor, renders the carrier liable, 
 ■called upon to question the right of Sloan v. Railway Co.. Ill Cal. 220, 32 
 a conductor in taking up a ticket in L. E. A. 193; and see notes and briefs, 
 ■order to preserve the right to be car- 2 103 Tenn. 124, 46 L. R. A. 614. 
 lied to destination. The wrongful 
 
 665 
 
§ 64:6.] CAEllIEES OF PASSENGERS. [PAET TI. 
 
 the court and discussed, and after citing authorities j>to and con 
 the court say: "We concur in the latter view, and hold that a 
 person who makes a valid contract is entitled to passage ac- 
 cording to its terms, though the face of the ticket furnished 
 him may not in any true sense express the contract. It is the 
 contract and not the ticket that gives the right to transporta- 
 tion. The ticket is but an evidence of the contract made out 
 and furnished by the carrier, and if it fail to disclose the true 
 contract, the fault is with the carrier, and it is responsible for 
 the natural consequences of the variance." ^ 
 
 But where a passenger was ejected from a street-car to 
 which he had transferred from another car, because his trans- 
 fer checks were improperly punched by the conductor of the 
 first car, it was held that the carrier was liable, and that the 
 passenger could recover therefor, where on the refusal of the 
 second conductor to accept the transfer check, and before he 
 was ejected, the passenger made a statement to the conductor 
 showing that the fault in the ticket was due to the negligence 
 of the first conductor.- And where the passenger was in- 
 duced hj the fault of the station agent to take a train not 
 scheduled to stop at his destination, it was held he was en- 
 titled to recover upon ejection from the train " before reach- 
 ing his destination as for a tort, and not merely for breach of 
 contract." '' 
 
 § 646. Tendering fare to avoid ejection. — It seems to be 
 generally conceded by the authorities and the courts that 
 when the train is stopped for the express purpose of ejecting a 
 passenger who has refused to pay his fare, or produce a ticket, 
 or check, or permission from the carrier for his convej^nce, 
 it is too late for him to pay or tender his fare, and that the 
 carrier can i-efuse to allow him to ride upon the train, and, if 
 he has been ejected, to admit him again upon the train. This 
 has been held although the train was stopped at a station 
 where it is not scheduled to stop. If, however, the passenger 
 is carried to a regular stopping station of the train and there 
 
 iFor authorities cited, see 46 L. R. St. 370; Pennington v. IlL Cent. Ry. 
 
 A., note, p. 614, and opinion, p. 615, etc. Co., 69 111. App. 628; Ellsworth v. 
 
 2 0'Rourke v. Street Ry. Co., 103 Railway Co., 95 Iowa, 98, 24 L. R A. 
 Tenn. 124, 46 L. R. A. 614. 173. 
 
 3 Reynolds v. Railway Co., 55 Ohio 
 
 666 
 
OH. III.] THE PASSENGER CAEEIER's LIABILITY. [§ 647. 
 
 ejected, he may procure a ticket or again board the train and 
 pay his fare and is entitled to be carried. The distinction 
 seems to be that he is not entitled to be carried where the train 
 is stopped for the express purpose of putting him off; and the 
 same rule has been applied before the ejection if the train has 
 been stopped for the express purpose of ejecting the passenger.* 
 The passenger, however, is entitled to reasonable time if he 
 alleges that he had a ticket which is lost, or if there is hesita- 
 tion as to his payment and he seems willing to pay, or where 
 he proposes to obtain the money from another passenger ; the 
 rule would seem to be that where there is no wilful, or at least 
 positive, refusal to pay the fare, the conductor would be bound 
 to receive the fare from a third person if offered before the 
 ejection of the passenger who has no ticket or money. At 
 all events, the conductor should not hastily take steps to eject 
 the passenger who seems to be endeavoring to comply by the 
 production of a ticket, or the payment of the money, or who 
 does not refuse to comply with his request.^ 
 
 § 647. The manner of ejecting. — No matter for what 
 
 cause the passenger is ejected, the conductor or servants of the 
 company must use no more force than is necessary, and under 
 no circumstances will they be excused for ejecting a passenger 
 while the train is running at a rate of speed that might en- 
 danger his life or limb. And this rule obtains even though 
 the passenger is a trespasser or an intruder upon the vehicle of 
 
 'Pease v. Railway Co., 11 Daly Railway Co., SMjpra. But if the train 
 
 (N. Y.), 350; Cincinnati, etc. R. Co. v. is not stopped purposely at the sta- 
 
 Skillman, 39 Ohio St. 445; O'Brien v. tion to put him off, he may pay the 
 
 Railway Co., 15 Gray, 30, 77 Am. Deo. fare. Gould v. Railway Co., 18 Fed. 
 
 347; Hoffbauer v. Railway Co., 53 155: Stone v. Railway Co., 47 Iowa, 83. 
 
 Iowa, 342, 35 Am. Rep. 278. But 2 Texas, etc. Co. v. Bond, 62 Tex. 
 
 ■where the train has stopped at a 443, 50 Am. Rep. 533; Louisville R. 
 
 regular stopping place, an offer to Co. v. Garrett, 8 Lea, 488, 41 Am. 
 
 pay fare before a passenger is ejected Rep. 640. And in California it was- 
 
 must be accepted. O'Brien v. Rail- held that a tender by a passenger of 
 
 way Co., 80 K. Y. 236 But if the the remainder of his fare is in time, 
 
 train does not regularly stop at the although the train has stopped for 
 
 station and is stopped for the pur- the purpose of ejecting him, where 
 
 pose of expelling him, he is not en- the money which he had already 
 
 titled to prevent his expulsion and paid to the conductor had not been 
 
 continue his passage on that train returned. Bland v. Railway Co., 55 
 
 by tendering fare. Pickens v. Rail- Cal. 570. See also Georgia,, etc. Co. 
 
 way Co., 104 N. C. 813; O'Brien v. v. Asmore, 88 Ga. 539, 16 L. R. A. 53. 
 
 667 
 
■§ 64:8.] CAEEIEES OF PASSENGERS. [pAET VI. 
 
 the carrier. And so it has been held that a carrier is liable 
 for an injury sustained by the malicious and wilful act of its 
 brakeman in expelling one who is a trespasser from the train.' 
 It has been held that indecent, insulting and vulgar language 
 of a passenger, unaccompanied by threats, does not justify the 
 conductor in assaulting him ; that he may use sufficient force 
 to eject him but no more.^ 
 
 § 648. The condition of the passenger must be talien into 
 account. — The actions of the servants of the company in eject- 
 ing a passenger must be humane; and where the passenger is 
 afflicted with sickness or any physical disability, or even is in- 
 toxicated and not in a condition to look out for his own safety 
 the carrier is bound to take all this into account and to treat 
 the passenger accordingly. And so it has been held "that the 
 drunken condition of a passenger would not excuse a carrier 
 from liability for negligently leaving him exposed on a rail- 
 road track, where he had fallen from the train through the 
 carrier's fault, and was in consequence dazed and his mental 
 faculties impaired in consequence of the fall."^ 
 • "Where a street-car conductor, supposing that the passenger 
 was drunk, but in fact he was stricken with apoplexy, removed 
 him from the oar in a helpless condition and laid him in the 
 street on a bleak, drizzling day and there abandoned him, it 
 was held the company was liable. And so, as we have seen, 
 the general rule is that the refusal of a passenger to pay his 
 fare will not justify any act which would put human life in 
 
 1 St. Louis V. Kilpatrick, 67 Ark. Quigley v. Railway Co., 11 Nev. 350; 
 47; Southern Ry. Co. v. Wildman, N. J. etc. Co. v. Brookett, 121 U. S. 
 119 Ala. 565; Brennan v. Railway 637. If the conductor, acting in the 
 Co., 72 Mo. App. 107; Molver v. Rail- performance of his duty, exceeds the 
 way Co., 110 Ga. 333; Chicago, etc. degree of force necessary and injury 
 Co. V. Casazza, 88 111. App. 431. In- results, the company is liable. Jack- 
 decent, insulting language of a pas- son v. Railway Co., 47 N. Y. 44. See 
 senger, unaccompanied by threats or note to Southern, etc. Co. v. Sanford, 
 violence, will not justify assault. 11 L. R. A. 433; Lafitte v. Railway 
 
 2 Weber v. Railway Co., 63 N. Y. Co., 43 La. Ann. 34, 13 L. R. A. 287. 
 Sup. 1. When the force used to ^ Cincinnati, etc. R. Co. v. Cooper, 
 eject amounts to wanton assault, the 130 Ind. 469, 6 L. R. A 241. See 
 fact as to whether the plaintiff was Louisville, etc. Co. v. Logan, 88 Ky. 
 rightfully or wrongfully upon the 338, 3 L. R. A. 80; Mo. Pac. R. Co. v. 
 train is not an element in the ques- Evans, 71 Tex. 361, 1 L. R. A. 476: 
 tion of mere recovery. Toledo, etc. Roseuian v. Railway Co., 113 N. C. 
 Co. V. Marsh, 17 Ohio C. C Rep. 379; 700, 19 L. R. A. 337. 
 
 GG8 
 
OH. III.J THE PA8SENGEE CAEEIEE's LIABILITY. [§§ 649-651, 
 
 peril; and the passenger has a right to repel an attempt to 
 eject him in order to save his own life, or to save himself from 
 great bodily injury, because of the unjustifiable assault of the 
 conductor.' 
 
 VI. 
 
 "When the Oaeeiee is Excused. 
 
 When the injury or loss is caused by the act of God or the 
 public enemy, or occasioned by the fault of the party injured^ 
 that is, where he has been guilty of contributory negligence, 
 the carrier will be excused. 
 
 § 649. When caused .by the act of God. — The carrier will 
 not be held liable when the injury or loss is the immediate re- 
 sult of the act of God, *. e., the immediate result of natural 
 causes " without the intervention of man, and could not have 
 been prevented by the exercise of prudence, diligence and care 
 and the use of those appliances which the situation of the party 
 renders it reasonable that he should employ." ^ 
 
 § 650. The public enemy. — And so if the injury or loss be 
 the direct and immediate cause of an act of the public enemy, 
 the carrier is not liable. 
 
 §651. Contributory negligence. — If the negligence of the 
 passenger has materially contributed to the loss or injury, and 
 to an extent that it may be said to be the proximate and 
 natural cause of the injury, there can be no recovery therefor. 
 The principle is well settled that one cannot recover for an 
 injury brought upon himself by his own fault. " Regarding 
 the case of negligent injury, the general result of the author- 
 ities seems to be that if the plaintiff or party injured, by the 
 exercise of ordinary care, under the circumstances, might have 
 avoided the consequences of the defendant's negligence, but 
 did not, the case is one of mutual fault, and the law will 
 neither cast all the consequences upon the defendant nor will 
 it attempt any apportionment thereof." ' The English rule, 
 which is generally followed in this country, may be said to be 
 
 'Connolly v. Street Car Co., 41 La. where oases are collected; Wald v. 
 
 Ann. 57; Hoffman v. Railway Co., 87 Pittsburg, etc. R. Co., 163 111. 545; 43 
 
 N. Y. 24; Lynch v. Railway Co., 90 Cent. Law Jour. 423 (Johnstown 
 
 N. Y. 77; New Jersey v. Brockett, Flood Cases). 
 
 131 U. S. 637. 3 Cooley on Torts, 675. 
 
 2 See note, 48 Cent. Law Jour. 437, 
 
§ 652.] CAEEIEES OF PASSENGEKS. [PAET TI. 
 
 as stated in Tuff v. Warman^ that the mere negligence or want 
 of ordinary care and caution would not disentitle an injured 
 person to recover unless it were such that but for that negli- 
 gence and want of ordinary care and caution the misfortune 
 could not have happened; or if the negligence of the injured 
 person might, by the exercise of care on the part of the defend- 
 ant, have been avoided and the injury not inflicted. Applying 
 these principles to the subject in hand, it may be said that the 
 passenger who seeks to recover for an injury occasioned by 
 the negligence of the carrier must show not only that the car- 
 rier's negligence was the proximate cause of the injury, but 
 that he was exercising ordinary care.^ Upon this question the 
 courts of the several states do not entirely agree. Many of 
 the courts hold that it is not incumbent upon the plaintiff to 
 allege this or to prove it in order to make out a ;prima fade 
 case.' 
 
 § 652. Strangers, trespassers, intruders. — While, 
 
 as we have seen, the carrier is not bound to exercise that high 
 degree of diligence toward a stranger, or trespasser, or intruder, 
 that the law demands he shall exercise toward a passenger, 
 still humanity demands that he should exercise such a degree 
 of care as to not unnecessarily cause damage or injury to such 
 a person ; and so it follows that if the carrier is guilty of a de- 
 gree of negligence that a common respect for the laws of hu- 
 manity would not tolerate, he would be guilty, in an action 
 for the injury, and it would be no defense that the person in- 
 jured was a trespasser, or a stranger, or an intruder. As, for 
 example, the carrier would not be warranted in placing such a 
 person upon his vehicle in a position where he would be obliged 
 to leap from the train when it was in motion to save himself 
 from other injuries, and if he did so, it could not be said that 
 in thus leaving the train he was guilty of contributory negli- 
 gence.'' And where the conductor ordered a person to get off 
 the train while running at a speed which would endanger him 
 in getting off, refusing to stop the train to allow him to alight, 
 and with violent and insulting language threatened to eject 
 
 1 5 C. B. (N. S.) 573, 585. 3 Posi, §§ 832, 833. 
 
 2 North Chicago Street R Co. v. < Southern Ry. Co. v. Hunter, 74 
 Baur, 179 111. 126, 45 L. R A. 108. Miss. 444; Great Western R Co. v. 
 And see long list of authorities cited. Miller, 19 Mich. 305. 
 
 670 
 
CH. III.J THE PASSENGER CAKEIEE's LIABILITY. [§§ 653, 654. 
 
 him from the train by force if his orders were not obeyed, and 
 had force at his command to execute such threat, and the per- 
 son jumped from the train to avoid ejection by force, it was 
 held " that this Avas sufficient compulsion or show of force to 
 excuse the person from the charge of contributory negligence 
 in so jumping from the train." ' 
 
 § 653. Failure to warn passengers of danger. — It is a 
 
 general rule that a passenger must exercise ordinary care and 
 diligence in avoiding injury. But while this is true, it may be 
 said that it is the duty of the carrier to warn the passenger as 
 to dangerous situations, and failing to da so, the carrier will 
 not be permitted to defend upon the ground of contributory 
 negligence upon the part of the passenger in an action for an 
 injury received because of such danger. This duty to warn the 
 passenger against danger does not apply, of course, to every 
 case. The circumstances of the particular case are to be taken 
 into consideration. As, for example, where a passenger cannot 
 be said to understand the danger of his situation, or where the 
 passenger is a young person, inexperienced and not aware of 
 the danger in which he is placing himself; or one who is some- 
 what demented or even intoxicated, or deaf and dumb or blind ; 
 such persons require more attention, and the duty of the car- 
 rier is to extend to them greater care than to the ordinary pas- 
 senger. These, of course, are but examples. -Each case must 
 stand upon its own particular circumstances.^ 
 
 § 654. A question of fact for the jury or of law for 
 
 the court. — As we have seen, the plaintiff, in order to recover 
 in an action brought for personal injury, must not only prove 
 that the injury was the proximate result of negligence upon 
 the part of the carrier, but he is also bound to prove, in those 
 states holding it necessary, that he was exercising ordinary 
 care, and that in the exercise of such ordinary care the in- 
 jury could not be avoided. These questions must necessarily 
 be left to the jury for their findings.' The question of contrib- 
 
 iBogges V. Railway Co., 37 W. Va. burg, etc. R Co. v. Caldwell, 74 Pa. 
 
 297, 23 L. R A. 777. St. 431. 
 
 ''Louisville, etc. R Co. v. Johnston, ^ McQuilten v. Railway Co., 64 Cal. 
 
 108 Ala. 62, 31 L. R A. 373; Isbell v. 463; Reddington v. Traction Co., 133 
 
 Railway Co., 37 Conn. 393, 71 Am. Pa. St. 150; Sonier v. Railway Co., 
 
 Deo. 78; Brennan v. Fairhaven, 45 141 Mass. 10; Palmer v. Railway Co., 
 
 Conn. 298, 39 Am. Rep. 679; Pitts- 87 Mich. 381. But see post, § 833. 
 
 671 
 
§ 655. J CAEEIEES OF PASSENGERS. [PAET TI, 
 
 utory negligence should always be submitted to the jury as a 
 question of fact where the testimony is conflicting and the case 
 is not free from doubt upon the facts, or where candid and in- 
 telligent men might reach different conclusions upon the facts.' 
 "Where, however, "facts which constitute contributory negli- 
 gence are not disputed, the question is one purely of law." And 
 where the uncontradicted testimony shows that the injured 
 party was negligent, it is a question of law for the court 
 whether he was guilty of such contributory negligence as would 
 defeat the action.^ And it has been held that to warrant the 
 court in any case in instructing the jury that the plaintiff was 
 guilty of negligence, the case must be so clear against him as 
 to warrant no other inference.' 
 
 § 655. Whether a question of law or fact.^As to 
 
 whether certain facts which are shown to exist in a given case, 
 without question or dispute, are sufficient to constitute negli- 
 gence or diligence is a question of law for the court; whether 
 these facts actually exist in the given case — whether they are in 
 fact true, — is a question of fact for the jury. And so it follows 
 that the question of diligence or negligence is generally one of 
 mixed law and fact. The admission of proof proposed, the effect 
 of the evidence if adduced, would be questions of law for the 
 court. The weight of the testimony given, its sufficiency to prove 
 negligence or diligence, is a question of fact for the jury. 
 
 In Gardner v. Railroad Co.* the court say: "The question 
 of negligence is one of law for the court only where the facts 
 are such that all reasonable men must draw the same conclusion 
 from them, or, in other words, a case should not be withdrawn 
 from the jury unless the conclusion follows as matter of law 
 that no recovery can be had upon any view which can be 
 properly taken of the facts the evidence tends to establish." 
 
 Where the case upon the facts is not 81 Mich. 43; Grand Trunk E. Co. v. 
 
 free from doubt, the court should Ives, 144 U. S. 408. 
 
 submit the question of negligence to '^ Melzer v. Peninsular Car Co., 7& 
 
 the jury. Sheldon v. Railway Co., Mich. 94; Apsey v. Railway Co., 83 
 
 59 Mich. 172. The question of negli- Mich. 440. 
 
 gence, where the testimony is not ^ Detroit, etc. R. Co. v. Van Stein- 
 conflicting, is for the jury. Myning berg, 17 Mich. 99; Hutch, on Car. 639. 
 V. Railway Co., 64 Mich. 93. * 150 U. S. 349-361; Railway Co. v. 
 iLuke V. Wheat Mining Co., 71 Ives, 144 U. S. 408-417; Railway Co.. 
 Mich. 364; Dundas v. Lansing, 75 v. Cox, 145 U. S. 593, 606; Sadowski 
 Mich. 499; Underhill v. Railway Co., v. Car Co., 84 Mich. 100. 
 
 673 
 
CH. III.] THE PASSENGEE OAEEIEe's LIABILITY. [§ 655. 
 
 The court, in Railroad Co. v. Miller, say: "It is frequently 
 difficult, perhaps sometimes impossible, to determine how far 
 the question of negligence or reasonable diligence is a question 
 of law, and how far a question of fact. It is generally a ques- 
 tion of mixed law and fact; and always, when the facts are 
 found or admitted, if they be such that all reasonable men will 
 be likely to draw from them the same inferences, it is a question 
 of law for the court. But I know of no case in which it can be 
 said with accuracy to be exclusively a question of fact for the 
 jury; some principle of law will always be applicable to the 
 particular state of facts, and may be laid down by the court; 
 the principle may sometimes be very general and abstract, but 
 there is still a legal principle involved." ^ 
 
 The test seems to be, would different minds honestly draw 
 different conclusions from the state of facts submitted? If they 
 would, then the question must be submitted to the jury; but 
 if the minds of ordinary men could draw from the facts only 
 one conclusion — if there is no dispute, no different opinion, — 
 then the question would be for the court; but, as has been said, 
 it is exceedingly difficult to find a state of facts where the 
 question as to negligence or diligence would be entirely ore 
 of law for the court. It is clearly a mixed question of law 
 and fact. 
 
 Certain acts, when proven and not disputed or admitted, 
 have been held to be, as matter of law, negligence;^ and yet 
 upon an examination of the cases we are led to conclude that 
 no fixed rule can be laid down that will at all times and under 
 all circumstances govern the question. As, for example, it is 
 generally conceded that jumping from a moving train is neg- 
 ligence, but very much depends upon the rate of speed at which 
 the train or car is moving, and the person who jumps from it. 
 If one should jump from a train going at such a rate of speed 
 that it would be conceded by all to be hazardous and impru- 
 dent, when every reasonably prudent man would say it was 
 fraught with danger, unquestionably the court would be war- 
 ranted in saying it was negligent. The supreme court of Penn- 
 
 '25 Mich. 374; Schoepper v. Han- troit R. Co. v. Van Steinberg, 17 
 cook, etc. Co., 113 Mich. 583; Lilli- Mich. 99. 
 
 bridge V. MoCann, 117 Mich. 84; 2 McQuilten v. Railway Co., 64 Cal. 
 Cooley on Torts (Sd ed.), 813; De- 463. 
 43 673 
 
§ 656.] CAEEIEES OF PASSENGEES. [PAET VI. 
 
 sylvania, in Jaggers v. Railiuay Co.^ held that jumping from an 
 electric car moving at the rate of four or five miles an hour is 
 contributory negligence as matter of law, and no doubt this 
 was a correct holding in the given case ; and yet it goes with- 
 out saying that a railroad man accustomed to getting on and 
 off moving trains could easily and safely alight from a train 
 running at that rate of speed. If the car is moving at a high 
 rate of speed there would be no question; but if not, all the cir- 
 cumstances would have to be considered before it could be said, 
 as matter of law, to be negligent. It has been held to be " gross 
 negligence in a person to jump from a car which is going at 
 the rate of twenty miles an hour, whether or not he knows that 
 the speed is so high."^ On the other hand it was held: "The 
 mere fact that a street-car is moving slowly when a man at- 
 tempts to get on do3S not make him guilty of negligence as 
 matter of law, but the question is for the jury.'" 
 
 " It is not under all circumstances negligence as matter of 
 law," say the New York court, " for a person to get upon a 
 street-car while it is in motion. In exceptional cases it may 
 be so, but ordinarily it is a question for the jury." * In such 
 cases we must apply the old test: is the act so obviously haz- 
 ardous that a man of ordinary prudence would not attempt 
 it ? If so, it is negligence. 
 
 § 656. Same subject.— Numerous cases might be cited where 
 the courts have held the acts of passengers and persons seek- 
 ing damages in personal-injury cases to be as matter of law 
 contributory negligence, or so clearly negligent that no re- 
 
 1 180 Pa. St. 436. " It is not negli- Railway Co., 149 Mass. 204; Smith v. 
 
 gence "per se to attempt to leave a Railway Co., 55 Iowa, 33. 
 
 moving train; whetlier it is negli- ^jiasterson v. Street Car Co., 88 
 
 gence or not depends upon all the Ga. 436. 
 
 circumstances of the case; as upon ' Morrison v. Street Car Co., 130 
 
 the rapidity of the motion, vrhether N. Y. 166. 
 
 it is night or day, whether the place ^ EpendorflE v. Street Car Co., 69 
 is favorable or otherwise, and the N. Y. 195, 25 Am. Rep. 171. See col- 
 like." Little Rock v. Atkins, 46 Ark. lection of cases in notes 38 L. R A. 
 423; St. Louis, etc. R Co. v. Cantrel, 786; Chicago Ry. Co. v. Mumford, 97 
 37 Ark. 526; Pa. etc. Ry. Co. v. Ma- 111. 560; Connor v. Citizens' Ry. Co., 
 rion, 123 Ind. 415; Weber v. Railway 150 Ind. 63, 55 Am. Rep. 177; Stager 
 Co., 100 Mo. 194; Rickets v. Railway v. Ridge, etc. Ry. Co., 117 Pa. St. 70; 
 Co., 85 Ala. 600; Mich. Cent. R. Co. Moylan v. Second Ave. R. Co., 128 
 V. Coleman, 38 Mich. 440; Graham v. N. Y. 583. 
 Railway Co., 39 Fed. 596; Files v. 
 
 674 
 
OH. III.J THE PASSENGER CAEEIEe's LIABILITY. [§ 657. 
 
 corery could be had; as where passengers have alighted upon 
 the side of the train where there is no platform instead of 
 upon the platform ; where passengers in getting off were in- 
 jured by a passing train or car; where persons have fallen 
 from the top of freight cars where they voluntarily sought to 
 obtain a ride, and without permission; or where the injury 
 was received while riding upon the engine without permis- 
 sion; or in a place upon a train where the passenger was not al- 
 lowed to be, by reason of exposing to danger a part of his 
 person, as by thrusting his head out of the open window 
 while the train is running at a high rate of speed, or project- 
 ing his arms or limbs from the car, or hanging over the side 
 of the steps or platform of the car of a running train, or 
 crawling under the car of a train standing upon the track — in 
 short, to do that which ordinarily prudent men without dissent 
 would consider extra-hazardous.^ 
 
 §657. When excused. — The law sometimes has re- 
 gard for the frailties of human nature and often regards the 
 trying situation of persons who may be said to be guilty of 
 carelessness while endeavoring to extricate themselves or those 
 depending upon them from trying dilemmas. As where a 
 mother accompanied by three children, on arriving at an inter- 
 mediate station, proceeded to alight with them ; two of the 
 children had left the car, and while the plaintiff was still upon 
 the train the car started, when she sprang to the platform on 
 which one of the children had fallen prostrate, and was injured. 
 It was held that this was not such negligence as would prevent 
 her from recovering damages for injuries sustained by the pre- 
 mature starting of the train. The court say : " that it is wrong 
 for a party to attempt to leave cars while they are in motion 
 is an abstract truth, that counsel complain of the court for not 
 applying here. It is one thing to define a principle of law 
 and a very different matter to apply it well. The rights and 
 
 ' Walker v.;VicksburgR. Co., 41 La. Co., 54 Wis. 610; New York, etc. R 
 
 Ann. 795,7 L. R. A. Ill; Richmond Co. v. Enches, 137 Pa. St. 316; Por- 
 
 V. Second Ave. Railroad Co., 76 ter v. Railway Co., 80 Mich. 156; 
 
 Hun (N. Y.), 233; Sharkey v. Lake Watson v. Railway Co., 81 Ga. 476; 
 
 Roland R. Co., 84 Md. 163; Offerman Lake Shore, etc. Co. v. Banks, 47 
 
 T. UnioQ Depot Co., 135 Mo. 48; Mich. 470; Richmond, etc. Co. v. 
 
 Basch V. North Chicago, etc. R. Co., Scott, 88 Va. 968. 
 40 111. App. 583; Jewel v. Railway 
 
 675 
 
§ 65S.] OAEKIEES OF PASSENGERS. [PAET VI. 
 
 duties of the parties grow out of the circumstances in which 
 they are placed."^ The rule has been held to be, "if a passen- 
 ger is placed in a position of peril by the negligence' of the 
 carrier, so that he is compelled to choose between the two evils 
 of jumping from the moving car or being injured by the other 
 peril, it will not be negligence for him to jump." ^ As where 
 a passenger is induced to jump off the train by an impending 
 collision, he will not be held guilty of contributory negligence.' 
 And this is held to be the rule even though no injury would 
 have befallen the person if he had not made the attempt to 
 escape the threatened danger. The question in such a case is 
 not what a prudent person under ordinary circumstances would 
 have done, for cool presence of mind could not be expected 
 under such circumstances, and the law takes into consideration 
 the frailty of human nature and considers the emergency in 
 which the person is placed, the excitement and the influence of 
 fear and danger which has taken possession of hira.'' 
 
 § 658. Failure to perform contract of carriage within 
 stipulated or reasonable time. — There is an implied under- 
 taking on the part of the carrier that he will at least carry the 
 
 1 Pennsylvania Ry. Co. v. Kilgore, v. People's R. Co., 107 Mo. 240, 14 L. 
 
 32 Pa. St. 393. R A. 613. Held, " to jump from a 
 
 ^Twomley v. Cent. Park R Co., 69 street-car which is about to cross a 
 
 N. Y. 158, 25 Am. Rep. 162. railroad track is not contributory 
 
 3 Heath v. Glen Falls Street Car negligence as matter of law suffi- 
 
 Co., 90 Hun (N. Y.), .560;-Dimmey v. cient to defeat an action for injuries 
 
 Wheeling R. Co., 37 W. Va. 38, 55 thereby received, although such ac- 
 
 Am. Rep. 392; Washington, etc. R tion proved to be wrong, where the 
 
 Co. V. Hickey, 5 App. D. C. 436. The view of the track was entirely cut 
 
 fact that a woman gets off a moving off until the crossing was reached, 
 
 car upon its turning into the barns, when an engine was seen approach- 
 
 upon refusal to stop to let her off, ing only a short distance away, 
 
 will not prevent her recovery for an and the gatekeeper, who appeared 
 
 injury caused thereby, if she had greatly confused, was lowering the 
 
 been subjected to insult upon being gates so as to stop the street-oar, di- 
 
 carried into the barns upon a previ- rectly on the track, while the actions 
 
 ous occasion and thought that her of the passengers indicated an ap- 
 
 only way to escape the same treat- prehension of imminent peril." 
 
 ment was to leave the car. Ashton Washington, etc. Co. v. Hickey, 5 
 
 v. Detroit City R. Co., 78 Mich. 587; App. D. C. 436; Houston, etc. Co. v. 
 
 and see notes 38 L. R A. 786. Norris, 41 S. W. 708: Citizens', etc. R. 
 
 * Adams v. Hannibal, etc. Co., 74 Co. v. Hoffbauer, 23 Ind. App. 614, 56 
 
 Mo. 553, 41 Am. Rep. 333; Beach, N. E. 54, citing long list of authori- 
 
 Contributory Negligence, 44; Galena, ties, 
 etc. R Co. V. Fay, 16 111. 558; Kieiber 
 
 676 
 
CH. III.J THE PASSENGER OAREIEe's LIABILITY. [§ 658. 
 
 passenger to the point desired upon its line within a reason- 
 able time, where the time of departure and arrival is more or 
 less definitely fixed by the published time-tables or schedules 
 of the carrier company. Upon these time-tables the passenger 
 has a right to rely, to the extent, at least, that the carrier 
 will make good the representations contained in them if he 
 can do so by reasonable efforts. He does not guarantee to the 
 passenger that he will start his vehicles on the time mentioned 
 in the time-tables; he may be reasonably detained; but he 
 must as nearly as he can, and consistent with the best interest 
 of the traveling public and his own business, fulfill the repre- 
 sentations he so makes. And so wh^re a passenger who had 
 engaged transportation from New York to San Francisco was 
 unreasonably detained at Panama by the default of the trans- 
 portation company, and was thereby specially damaged, it was 
 held that he might maintain damages from the carrier.' These 
 actions are sustained upon the theory that the carrier is guilty 
 of negligence, and it is the damage arising from the unreason- 
 able delay of the carrier that may be recovered; and so it must 
 necessarily follow that if the carrier company has done all 
 that reasonable care and skill could do to transport the pas- 
 senger punctually, and the delay cannot be attributed to any 
 negligence upon his part, the carrier would not be liable. It 
 has been said that " the publication of a time-table in common 
 form imposes upon a railroad company the obligation to use 
 due care and skill to have the trains arrive and depart at the 
 precise moment indicated in the time-table ; but it does not 
 import an absolute and unconditional engagement for such ar- 
 rival and departure, and does not make the company liable 
 for want of punctuality which is not attributable to their neg- 
 ligence." 2 
 
 'Buskirk v. Roberts, 31 N. Y. 661. 596. In Savannah, etc. R. Co. v. Bo- 
 
 In Sears v. Eastern Ry. Co., 14 Allen, naud, 58 Ga. 180, it was held that "a 
 
 433, it was held "that railroad oor- railroad company which fails to run 
 
 porations, by advertising the hours a train according to its published 
 
 when trains will start, agree with schedule, unless prevented by some 
 
 holders of tickets that trains shall valid reason, is liable to a person 
 
 start at the hour named, but with sustaining injury from such failure 
 
 an implied reservation of power to for the damages actually sustained 
 
 change the hours upon giving rea- by him as the direct and necessary 
 
 sonable notice." result thereof." 
 
 2 Gordon v. Manchester, 53 N. H. 
 
 677 
 
CHAPTEE IV. 
 
 LIMITATION OF LIABILITY. 
 
 659. Three classes of holdings by 
 
 the courts. 
 
 660. The first class: Carrier cannot 
 
 limit liability where dam- 
 age results from his own or 
 servant's negligence. 
 
 661. The second class : Carrier can 
 
 limit liability even though 
 damage the result of his 
 own or servant's negligence. 
 
 663. The third class: May limit for 
 negligence but not for gross 
 negligence. 
 
 663. The weight of authority. 
 
 664 Free passes — Limitation of 
 liability for injuries to per- 
 sons riding upon. 
 
 665. Limitations growing out of 
 that which is incident to the 
 carriage. 
 
 § 659. Three classes of holdings by the courts. — That the 
 carrier of passengers may to some extent limit his liability for 
 injuries or damages which are not the result of his own negli- 
 gence or the negligence of his servants seems to be conceded ; 
 but where the injury or damage is the result of the carrier's 
 own negligence or that of his servants, there is irreconcilable 
 conflict in the rulings of the courts. The rulings of the sev- 
 eral courts upon this subject may be divided into three distinct 
 classes, or groups, all dividing upon the question of negligence. 
 The first class holds that the carrier cannot limit his liability 
 when the damage or injury results from his own or his serv- 
 ant's negligence. The second class is directly opposed to the 
 first, holding that by special contract the carrier can limit his 
 liability even to the extent of excusing himself for damage or 
 injury resulting from his own negligence or that of his serv- 
 ants. The thii'd class holds that, while the carrier may limit 
 his liability for negligence, he cannot limit such liability if the 
 negligence is gross; in other words, that he will be required 
 to exercise at least ordinary diligence. 
 
 § 660. The first class : Carrier cannot limit liability where 
 damage results from his own or servant's negligence. — The 
 courts holding to this doctrine base their opinion upon the theory 
 that the common carrier is in the exercise of his duties and 
 privileges a quasi-[^xxb[ic officer; that the carrier and passenger 
 
 678 
 
OH. IT.J LIMITATION OF LIABILITY. [§ 660. 
 
 who seek to enter into a contract limiting the liability are not 
 the only parties interested, but that the public generally are 
 affected ; and that to be exonerated from the exercise of that 
 high degree of diligence that attaches to the common carrier 
 of passengers by a contract between the carrier and the pas- 
 senger would be to disregard the public interest and the public 
 demands, and would therefore be in violation of public policy, 
 and for that reason such contracts would be void. As was said 
 in a recent case respecting the duty of a common carrier, "the 
 duty to use extraordinary diligence to protect the lives of his 
 passengers cannot be waived." ' And so where a comnion 
 carrier sought to relieve himself from liability for injury re- 
 ceived by a drover riding upon a return pass without paying 
 fare, the contract stipulating that in consideration of such pas- 
 sage the drover assumed all risk, the court said: "It is very 
 well established in this state that a contract for such an ex- 
 emption from liability by a common carrier is void as against 
 public policy. The defendant could not by any agreement 
 however plain and explicit wholly relieve itself from liability 
 for injuries caused by its negligence or the negligence of its 
 agents or employees." ^ A leading case upon this subject, and 
 one which has been often followed in the United States su- 
 preme court and in the state courts, is that of Railroad Co. v. 
 Lockwood,^ where the supreme court of the United States dis- 
 cuss fully this question. In Pennsylvania it seems to be set- 
 tled by a long course of decisions that a common carrier of 
 passengers cannot limit his liability so as to exonerate himself 
 from injuries occurring from his own negligence or that of his 
 servants. In Farnham v. Railway Co} the court say : " The 
 doctrine is firmly settled that a common carrier cannot limit 
 his liability so as to cover his own or his servant's negligence." 
 And the Indiana court say: "The law will not allow the car- 
 rier thus to abandon his obligation to the public, and hence all 
 stipulations which amount to a denial or repudiation of duties 
 which are of the very essence of his employment may be re- 
 
 ' Cent. Ga. Ey. Co. v. Lippman, 110 Inman Co. v. Eailway Co., 129 U. S. 
 Ga. 665, 36 S. E. 202. 128; Liverpool, etc. Steam Co. v. In- 
 
 2 Davis V. Chicago, etc. Ry. Co., 93 surance Co., 129 U. S. 39T. 
 Wis. 470, 33 L. R. A. 654. * 55 Pa. St. 63. 
 
 '17 Wall (U. S.) 357, 21 L. ed. 627: 
 
 679 
 
§ 661. J CAEEIEES OF PASSE^fGEES. [PAET VI. 
 
 garded as unreasonable, contrary to public policy, and there- 
 fore void." ' 
 
 § 661. The second class: Carrier can limit liability even 
 though damage the result of his own or his servant's negli- 
 gence. — The second class of decisions is directly opposed to 
 the first, holding that the carrier may, by special contract, 
 limit his liability where the damage complained of was the 
 result of his own negligence or that of his servants, contend- 
 ing that this rule in no way does violence to public policy, 
 for the reason that the contract is one which interests no one 
 except the passenger and the carrier; that it is a subject-matter 
 in which no other interests are involved except the interests 
 that are controlled and possessed entirely by the contracting 
 parties. This doctrine is fully discussed in the case of Trenton, 
 etc. R. Co. V. Guarantors, etc. Co? This case was brought upon 
 a written contract whereby the defendants indemnified the 
 railroad company against liability for injury to or death of 
 persons by casualties occurring in, upon or about their railroad, 
 etc. The question as to the validity of the contract was be- 
 fore the court. The court say : " The proposition which one 
 would assert who contested the validity of such a contract 
 would obviously be this, namely, that a contract whereby a 
 common carrier of passengers is to be indemnified against 
 damages which he was required to pay for personal injuries 
 occasioned by his negligence or by the negligence of his agent 
 is contrary to public policy, and therefore unenforceable. It 
 is admittedly difiicult, if not impossible, to formulate a satis- 
 factory statement of what is meant by the words ' public pol- 
 icy.' . . . Theonly reason which I find possible to conceive 
 to be capable of being urged in support of the proposition that 
 
 1 Louisville, etc. Co. v. Faylor, 136 way Co., 79 Fed. 561 (C. C. S. Div. 
 
 Ind. 126; Ind. Cent. Ry.Co. v. Mundy, Obio); Louisville, etc. Co. v. Keifer, 
 
 21 lud. 48 ; Ohio, etc. Ry. Co. v. Nick- 146 Ind. 21 ; Railway Co. v. MoLaugh- 
 
 less, 71 Ind. 271; Gulf, etc. Co. v. Mo- lin, 73 Fed. 519; Tibby v. Railway 
 
 Gown, 6"i Tex. 640; Mo. Pac. Ry. Co. Co., 82 Mo. 293: Jones v. RaiUvay Co., 
 
 V. Iby, 71 Tex. 409, 1 L. R. A. 500; 125 Mo. 666, 26 L, R. A. 718; Cleve- 
 
 Carroll v. Railway Co., 88 Mo. 239; land, etc. R. Co. v. Curran. 19 Oliio 
 
 Jacobus V. Railway Co., 20 Minn. 125, St. 1, 2 Am. Rep. 363; 111. Cent. Ry. 
 
 18 Am. Rep. 860; Bryan v. Railway Co. v. Crudup, 63 Miss. 291. 
 
 Co., 32 Mo. A pp. 338; Voight v. Rail- 2 go N. J. Law, 246, 44 L. R. A. 313. 
 
 680 
 
I 
 
 OH. IV.J LIMITATION OF LIABILITY. [§ 661. 
 
 the contract before us in this case is contrary to public policy- 
 is that the indemnity thereby provided for a common carrier 
 of passengers may tend to render him less -careful in. the per- 
 formance of his duty to his passengers than he otherwise would 
 be. It is obvious that such is not the purpose of the contract 
 for indemnity. The insurer does not contemplate the relaxa- 
 tion of the carrier's vigilance, which would tend to throw 
 additional liability upon him., The insurer is held to the 
 performance of his duty of vigilance both by his liability, not- 
 withstanding the indemnity, and by the fact that the vigilant 
 ■carrier would obtain better terms in making the contracts of 
 insurance. It is further obvious that if a contract indemnify- 
 ing the common carrier of passengers against liability arising 
 from his negligence tends to a relaxation of vigilance inimical 
 to the public interest, so a contract indemnifying a common 
 carrier of goods against the consequences of his negligence 
 must have the same effect and be obnoxious to the rule avoid- 
 ing contracts contrary to public policy. Yet it now seems well 
 settled that a common carrier of goods may enforce contracts 
 ■of insurance on goods carried against all losses, including those 
 occasioned by his negligence or the negligence of his serv- 
 ants. . . . The result is that the reserved question must be 
 answered in favor of the validity of the contract upon which 
 this action is founded." 
 
 The leading case in this class is one from the New York 
 court — Bissell v. Railway Co} In this case the court say : " If 
 he (the passenger) may by contract assume certain risks in con- 
 sideration of riding free, why may he not make a contract to 
 assume the same risk in consideration of being carried at half 
 price, etc.? "When we once hold that assuming these risks is 
 within his power as matter of contract, the court has no power 
 to interfere with his contract on the score of quantum of con- 
 sideration, or on any ground but illegality of consideration." 
 And in this case the court further held " that a common car- 
 rier, in consideration of an abatement, in whole or in part, of 
 his legal fare may lawfully contract with a passenger that the 
 latter will take upon himself the risk of damage from the neg- 
 ligence of agents or servants for which the carrier would other- 
 wise be liable; that public policy is satisfied by holding a rail- 
 
 1 25 N. Y. 443. 
 681 
 
§ 661. j CAEEIEES OF rASSENGERS. [PAET VI. 
 
 road corporation bound to take the risk when the passenger 
 chooses to pay the fare established by the legislature. If he 
 voluntarily and for any valuable consideration waives the right 
 to indemnity, the contract is binding." And where the plaint- 
 iff, while traveling on a regular train on defendant's road, on 
 a free pass, was injured by a collision caused by defendant's 
 negligence, and, where upon the pass there was an indorse- 
 ment to the effect that, in consideration of receiving it, the 
 holder assumed all risks of accident and agreed that the com- 
 pany should 'not be held liable under any circumstances, 
 whether by negligence of their agents or otherwise,' for injury 
 to his person or property, and that in the use of the pass he 
 would ' not consider the company as a common carrier or liable 
 as such,' and where in an action to recover damages for the 
 injury it appeared that the plaintiff had purchased a ticket en- 
 titling him to a seat in the drawing-room car upon the train, 
 from the drawing-room conductor, and it was stated in the 
 check given for the seat that it, ' with passage ticket or fare,' 
 would be taken up by the train conductor, it was held that 
 ' this did not make plaintiff a passenger for hire, and did not 
 have the effect to annul or vary, for the trip, the contract made 
 bj^ the pass and its indorsement ; that assuming such a purchase 
 of a seat ticket has the same force and effect as if purchased 
 from the train conductor.' . . . And so long as the pass 
 was used to secure transportation did not in any way affect the 
 validity of the agreement expressed therein." ' In Massachu- 
 setts it was held that " an agreement by one who accepts a rail- 
 road pass purely as a gratuitj^, that he will assume all risks of 
 accident of every name and nature, is not against public policy, 
 and will prevent a recovery by him for injuries occasioned by 
 the negligence of the railroad company's servants." ^ This ap- 
 pears to be the rule both in England and in the Canadian 
 courts.^ The supreme court of Maine have also held to this 
 doctrine, and in Rogers v. Steamboat Co.* it was said that " a 
 
 1 Ulrich V. Railway Co., 108 N. Y. Co., L. R 10 Q. B. Div. 437; Gallin v. 
 80. Railway Co., L. R. 10 Q. B. Div. 212: 
 
 2 Quimby v. Railway Co., 150 Mass. McCawley v. Railway Co., L. R. 10 
 385, 5 L. R. A. 846. Q. B. Div. 57. 
 
 3 Soutlierland v. Railway Co., 7 *86 Me. 261, 25 L. R. A. 491; Gris- 
 U. C. C. P. 409; Hall v. Railway wold v. Railway Co., 53 Conn. 871; 
 
 082 
 
CH. IV.J LIMITATION OF LIABILITY. [§§ 662-664. 
 
 conditioa in a free pass that the passenger will assume all risks 
 of personal injury is not against public policy." 
 
 § 662. The third class: May limit for negligence hut not 
 for gross negligence.— The third class of authorities holds that 
 the coraraon carrier of passengers may limit his liability for in- 
 juries resulting from the negligence of himself or servants if 
 such negligence is not gross negligence, but that for gross neg- 
 ligence he must be held liable.^ 
 
 § 663. The weight of authority — It is difficult to determine 
 where the weight of authority rests, but it seems to be conceded 
 by most of the authorities upon this subject that the weight of 
 authority in this country is that a common carrier of passen- 
 gers cannot, by special contract or otherwise, limit his liability 
 for injury or damage resulting from the negligence of himself 
 or his servants; that such a contract would be void. Both rea- 
 son and humanity would dictate that this should be the law. 
 Nothing is held so important and so sacred in the law as the 
 protection of life and limb. One may barter away his prop- 
 erty, but the law would not permit him to put his own life in 
 the scale; he may possess it and protect it, but to destroy it is 
 a crime. It is therefore difficult to see upon what principle one 
 engaged in so dangerous and hazardous a business as that of a 
 common carrier of passengers can be relieved by contract from 
 the results of his own or his servant's negligence that often in- 
 volves the loss of life, even though such contract is based upon 
 a valuable consideration, and still more difficult when the in- 
 juries are the direct result of gross negligence on the part of 
 himself or his servants ; and so it would seem that reason and 
 justice and public policy would suggest that the carrier can- 
 not so limit his liability by contract. 
 
 §664. Free passes — Limitation of liability for injuries 
 to persons riding upon. — There has been a great deal of dis- 
 cussion and a variety of holdings in the courts as to the valid- 
 ity of contracts between the carrier company and persons riding 
 
 Wells V. Railway Co., 24 N. Y. 181 ; i Railway Co. v. Hawks, 36 111. App. 
 
 Muldoon V. Seattle, etc. Co., 7 Wash. 337; 111. Cent. R. Co. v. Beebe, 69 111. 
 
 529; Kirney v. Railway Co., 34 N. J. App. 363; 111. Cent. R. Co. v. Read, 37 
 
 L- 513; Hosmer v. Railway Co., 156 111. 484; Toledo, etc. Co. v. Railway 
 
 Mass. 506; Bates v. Railway Co., 147 Co., 85 111. 80, 88 Am. Rep. 615; Annis 
 
 Mass. 255; Doyle v. Railroad Co.. 162 v. Railroad Co., 67 Wis. 46. 
 Mass. 66; s. C, 166 Mass. 493. 
 
 68B 
 
§ 664.] 
 
 CAEKIEES OF PASSENGEES. 
 
 [PAET VI. 
 
 upon free passes over their road. It is somewhat difficult to 
 determine just vrhere the weight of authority rests, as some of 
 the strongest courts in the Union differ in their opinion upon this 
 subject; and in those courts where it has been held that such 
 contracts are valid and that the passenger cannot recover, even 
 though the injury is the result of the negligence of the carrier 
 or his servants, some modification has been made where the 
 pass was issued to the passenger for a valuable consideration, 
 either direct or indirect; as, for example, a pass given to a drover 
 in order that he may accompany the stock shipped by him over 
 the road, or where the pass is given to one who is engaged to 
 perform a service for the company, or where the journey of the 
 passenger is directly or indirectly for the benefit of the com- 
 pany;^ but it would seem that the weight of authority is that 
 
 1 In Doyle v. Railway Co., 166 Mass. 
 493, the plaintiff's intestate was em- 
 ployed by the railroad company as a 
 clerk in its freight department; on 
 the occasion of liis injury he was 
 traveling upon a pass going from the 
 city of Boston, where he was em- 
 ployed, to his home in Waltham, as 
 he had been in the habit of doing 
 Saturday afternoons at the close of 
 his week's work. On the back of the 
 ticket, or pass, upon which the intes- 
 tate was riding were the following 
 conditions: "The person accepting 
 this free ticket, thereby, and in con- 
 sideration thereof, assumes all risk 
 of accidents, and expressly agrees 
 that the company is not a common 
 carrier in respect to him. and shall 
 not be liable under any circum- 
 stances, whether of negligence of its 
 agents or otherwise, for injury to the 
 ])ersoii, or for loss or injury to the 
 property of the passenger using this 
 ticket." The case was twice before 
 the court and was first considered in 
 163 Mass. 66. The court in its opin- 
 ion say: "We assume that if the 
 ticket had been a gratuit.v, the con- 
 tract on the back of it would have 
 precluded a recovery, and that it 
 ■would have made no difference that 
 
 the negligence was gross. How far 
 common carriers may go in contract- 
 ing to be relieved from the conse- 
 quences of their own negligence and 
 that of their servants is a matter on 
 which different courts have taken 
 different views, and on whioli, in 
 some instances, courts within the 
 same jurisdiction have expressed 
 themselves differently at different 
 times. It is clear that they have not 
 an unlimited power of contract in 
 this respect. A private individual 
 may refuse to transport a person 
 from one place to another unless the 
 latter will agree to assume all risk of 
 injury. But railroad corporations 
 would have no right to insist as a 
 condition of carrying a, passenger 
 that he should make such a contract. 
 This arises out of the nature of the 
 service which they undertake. . . . 
 Although the liability of a carrier of 
 merchandise is that of an ' insurer, 
 and the liability of a carrier of pas- 
 sengers is measured by the highest 
 degree of care which human fore- 
 sight will reasonably admit of, we 
 see no valid reason for holding that 
 in the former case the carrier cannot 
 be exempted from his own negli- 
 gence, and that in the latter he may." 
 
 684 
 
CH. IV.J 
 
 LIMITATION OF LIABILITY. 
 
 [§ 664. 
 
 the railroad company may limit in a degree their liability where 
 a gratuitous pass is given to the passenger upon which there is 
 a limitation written and signed by the passenger that he as- 
 sumes all risks of accident, and that the carrier company shall 
 not be liable under any circumstances, whether of negligence 
 by their agents or otherwise, but that there can be no limita- 
 tions even in such cases to the extent of excusing the carrier 
 for gross negligence of himself or his servants. Some of the 
 courts, including some of the most learned, however, have held 
 that these limitations are valid and are to be held as binding 
 and effective to the full measure of their language; but not- 
 withstanding this it is difficult to see how such contracts are 
 not in violation of public policy.' 
 
 Quimby v. Railway Co., 150 Mass. 
 365; Rogers v. Railway Co., 86 Me. 
 261; Griswold v. Railway Co., 53 
 Cona 371. In Railway Co. v. Stevens, 
 95 17. S. 655, the plaintiff, who was in- 
 jured, was performing some service 
 for the railroad company and riding 
 upon a free pass with the usual con- 
 ditions exempting the company upon 
 it; the court held that the pass was 
 given for a consideration, and that 
 therefore he was entitled to the priv- 
 ileges of a passenger, and that the 
 acceptance of a pass with the condi- 
 tions exempting the company from 
 liability would not estop him from 
 recovering damages for the injury." 
 'A contract exempting a carrier 
 company from liability for injuries 
 to passengers, except in cases where 
 the injury is the result of gross neg- 
 ligence of its employees, held to be 
 void. Railway Co. v. Beebe, 69 111. 
 App. 363; Railway Co. v. Keefer, 146 
 Ind. 31; Railway Co. v. Read, 37 111. 
 484; approved ih Railway Co. v. 
 Beggs, 80 111. 80, 28 Am. Rep. 613. 
 And in Railway Co. v. Hawks, 36 III. 
 App. 337, it was held that a stipula- 
 tion in a free pass exempting a rail- 
 road company from liability for in- 
 juries resulting from negligence, ex- 
 
 cept where the negligence is gross, of 
 itself or servants, was held valid. 
 Railroad company held to gross neg- 
 ligence notwithstanding contract ex- 
 cusing from negligence. Indiana 
 Cent. Ry. Co. v. Mundy, 21 Ind. 48,83 
 Am. Dec. 829. Company held for its 
 negligence notwithstanding con- 
 tract. See Rose v. Railway Co., 39 
 Iowa, 246; Brush v. Railway Co., 43 
 Iowa, 554. Conditions exempting 
 railroad company held void. Jacobus 
 V. Railway Co., 20 Minn. 135, 18 Am. 
 Rep. 360; Bryan v. Railway Co., 32 
 Mo. App. 328; Railway Co. v. Hender- 
 ison, 51 Pa. St. 315; Railway Co. v. 
 Bausch, 7 Atl. 731; Annis v. Railway 
 Co., 67 Wis. 46. 30 N. W. 283. Courts 
 holding the conditions or contract 
 releasing carriers from liability in- 
 dorsed upon the pass valid. Rogers 
 V. Kennebec, 86 Me. 361, 29 Atl. 1069, 
 25 L. R. A. 491, holding that " a con- 
 dition in a free pass exempting the 
 carrier from all liability for personal 
 injury is valid." Where the free pass 
 was a gratuity, held valid. Quimby 
 V. Railway Co., 150 Mass. 365, 33 N. E. 
 305, 5 L. R. A. 846; Kinney v. Rail- ' 
 way Co., 32 N. J. L. 407, 90 Am. Dec. 
 675; Wells v. Railway Co., 24 N. Y. 
 181; Perkins v. Railway Co., 34 N. Y. 
 
 685 
 
§ 665.] OAEEIEES OF PASSENGERS. [pAET VI. 
 
 § 665. Limitations growing out of that which is incident 
 to the carriage. — In the carrying on of every business there 
 are certain limitations, or qualifications, of the liability of the 
 owner, or proprietor, that of necessity grow out of that which 
 is incident to the doing of the very thing that results in dam- 
 age ; as, for example, the manufacturer who employs men to 
 run dangerous and intricate machinery; the employee in ac- 
 cepting the employment understands that the machinery is 
 dangerous and that he must bring to the using of it care and 
 skill, and if he is injured in its ordinary use the courts have 
 held that the risk is one that he assumes when he accepts the 
 employment. This same principle may be applied to the sub- 
 ject we are here considering; the common carrier of passen- 
 gers is held to the very highest degree of diligence in operat- 
 ing his vehicles, trains, or boats; but there are certain risks 
 that the passenger must be held to take upon himself. For ex- 
 ample, the postal clerk takes the risks that are usually ordi- 
 nary and incident to the riding and working in the postal car, 
 and should he be thrown down or jolted against the sides of 
 the car while the train is running around curves or coming, 
 necessarily, to a sudden stop, the carrier would not be liable. 
 And so if one should board a freight train as a passenger, and 
 in the usual running of the train should, because of the slacking 
 of the speed, be thrown from his seat and injured, or by the 
 usual and sudden jolting should suffer damages, he would be 
 held to have assumed all the ordinary risks that are incident 
 to such a trip and could not recover from the carrier. 
 
 This question was discussed in the case of Olds v. Bailway 
 Co.^ where a passenger was injured while riding upon defend- 
 ant's freight train. The court say: "From the composition of 
 such a train, and the appliances necessarily used in its efficient 
 
 196; Bissell v. Railway Co., 25 N. Y. 1 172 Mass. 73, 51 N. E. 451; Le Bar- 
 
 442: Muldoon v. Railway Co., 7 ron v. Ferry Co., 11 Allen, 313; Hey- 
 
 Wash. 538, 35 Pac. 422, 22 L. R. A. ward v. Railway Co., 169 Mass. 466, 
 
 794. For a general discussion as to 48 N. E. 773; Dodge v. S. S. Co., 148 
 
 limitation of liability by carriers for Mass. 207, 19 N. E. 373; Railway Co. 
 
 personal injuries to passengers, see t. Axley, 47 111. App. 307; Dunn v. 
 
 note and collection of authorities fol" Railway Co., 58 Me. 187; Lusby v. 
 
 lowing Clark v. Geer, 32 U. S. C. C. Railway Co., 41 Fed. 181 ; Railway 
 
 App. 301. Co. V. Dickerson, 59 Ind. 317. 
 
 686 
 
<3H. IV.] LIMITATION OF LIABILITY. [§ 665. 
 
 operation, there cannot, in the nature of things, be the same 
 immunity from peril in traveling by freight trains as there is 
 by passenger trains ; but the same degree of care can be exercised 
 in the operation of each. The result in respect of the safety 
 of the passenger may be wholly different because of the inher- 
 ent hazards incident to the operation of one train, and not to 
 the other; and it is these hazards the passenger assumes in 
 taking a freight train, and not hazards or peril arising from the 
 negligence or want of proper care of those in charge of it." 
 
 687 
 
CHAPTEK V. 
 
 BAGGAGE OR THE PASSENGER'S EFFECTS. 
 
 § 666. 
 667. 
 
 668. 
 
 669. 
 
 670. 
 671. 
 
 672. 
 
 673. 
 674 
 
 676. 
 
 677. 
 678. 
 
 Kinds of baggage. 
 Ordinary baggage — Defini- 
 tion. 
 
 (1) The station in life of the 
 passenger. 
 
 (2) The business or occupation 
 of the traveler. 
 
 (3) The object of the journey. 
 
 (4) The effects must be per- 
 sonal to the traveler. 
 
 (5) Must be reasonable in 
 amount for the journey and 
 its objects. 
 
 What is not baggage. 
 
 Sample trunks or com- 
 mercial effects. 
 
 Payment of excess bag- 
 gage. 
 
 Reasonable regulation. 
 
 Good faith. 
 
 The owner of the baggage 
 should be a passenger. 
 
 g 679. 
 
 681. 
 
 682. 
 683. 
 684. 
 685. 
 
 687. 
 
 689. 
 
 Should the owner accompany 
 the baggage? 
 
 Baggage of one riding upon a 
 free pass. 
 
 Liability of the carrier for 
 baggage under his exclusive 
 control. 
 
 Hand baggage. 
 
 Sleeping-car companies. 
 
 Liability for theft of servants. 
 
 A high degree of ordinary 
 diligence required. 
 
 Mixed custody of passenger 
 and carrier — Is the liabil- 
 ity of steamship company 
 and innkeeper the same? 
 
 The baggage of a steerage 
 passenger. 
 
 Termination of liability. 
 
 Failure of carrier to deliver 
 
 §666. Kinds of baggage. — The baggage or property and 
 effects of the passenger may be divided into three classes. 
 First, the ordinary baggage that is consigned to the car- 
 rier's control; second, commercial baggage, or effects which 
 are also consigned to the carrier's control; and third, hand 
 baggage. The law relating to this subject has been for the 
 last twenty-five years or more in a state of evolution, and 
 while the decisions and authorities have been somewhat con- 
 flicting, it may be said that the law is now fairly well settled. 
 Within comparatively the last few years a new class of bag- 
 gage, or property carried by the carrier of passengers, has 
 come into existence and demands the attention and considera- 
 tion of the courts. It has grown up by reason of a vast whole- 
 sale business that has been transacted through the agency of 
 commercial travelers who carry with them from place to place 
 
 688 
 
CH. T.] BAGGAGE OR THE PASSENGEE's EFFECTS. [§§ 66Y, 668. 
 
 large sample trunks filled with valuable goods and commod- 
 ities for the benefit of the trade. The early common-law rules 
 governing the law of baggage gave no place to this, and it has 
 been the duty of the courts to settle and establish, upon the 
 principles of law governing carriers, their duties and liabilities 
 with reference to this business. Technically this is not bag- 
 gage, but rather commercial effects used not as baggage by the 
 passenger but for the carrying on of his business. 
 
 §667. Ordinary baggage — Deflnition. — It is difficult to 
 formulate a definition that will embrace all the essentials of 
 the baggage of a passenger; it depends upon so many con- 
 ditions and circumstances, his station in life, the objects of the- 
 journey, his business or vocation, — all must be taken into con- 
 sideration in arriving at what would be his legal baggage. Is 
 the passenger a young man on his way to enter college, or is 
 he on a journey for recreation? Is he an artist going to the 
 country to sketch, or a military officer on an expedition with 
 his command? 
 
 Taking into account these several conditions, it may be 
 said that the baggage of a passenger is such wearing apparel 
 and articles for personal necessity, comfort, convenience or 
 recreation as would be needed by the passenger on his journey 
 and to accomplish its object; that is to say, it is the ordinary 
 effects that are reasonably needed by one upon his journey 
 and to accomplish its object that is termed ordinary baggage. 
 In determining, therefore, what is baggage, we have to con- 
 sider (1) the station in life of the passenger, (2) his business 
 or occuption, (3) the object of his journey, (4) whether the 
 effects are personal to him, and (5) are they reasonable in 
 amount for the journey and its objects. 
 
 § 668, (1) The station in life of the passenger. — Yery 
 much depends upon the station in life of the passenger in de- 
 termining what effects will be allowed him as baggage upon 
 his journey. It is the ordinary baggage — the ordinary neces- 
 sities for the comfort and convenience of the particular per- 
 son—that are allowed. It will be readily seen that the man 
 or woman who lives in luxury and affluence will ordinarily 
 use different apparel and articles of comfort than a poor man 
 or woman living and occupying a different station in life. One 
 of the royal family of England, or of any of the countries of 
 44 689 
 
§§ 6G9, 670.] OAEEIEES OF PASSENGBI^. [PAET TI. 
 
 the old world, would no doubt carry different effects upon a 
 
 journey than a man engaged in the ordinary pursuits of life.' 
 
 § 669. (2) The business or occupation of the traveler. — 
 
 The business or occupation of the passenger must necessarily 
 have very much to do with the baggage he would ordinarily 
 carry. A merchant on his way to the manufacturing city to 
 buy goods would carry different baggage than a drover in 
 charge of a car of live stock. Mr. Justice Field, in Railway 
 Co. V. Siolft,^ ssiA: "The contract to carry only implies an un- 
 dertaking to transport such a limited quantity of articles as 
 are ordinarily taken by travelers for their use or convenience, 
 such quantity depending of course upon the station in life of 
 the party, the object and length of his journey, and many 
 other considerations." Holding that surgical instruments in 
 the case of a surgeon in the army traveling with troops con- 
 stituted a part of his baggage, the court say : " The value of 
 the surgical instruments was properly included; instruments 
 of that character in the case of a surgeon in the army travel- 
 ing with troops may properly be regarded as part of his bag- 
 gage; he may be required to use these instruments at any time, 
 and must accordingly have them near his person where they 
 can be had upon a moment's notice." 
 
 §670. (3) The object of the journey. — The law seeks to 
 recognize that as baggage which is necessary for the comfort 
 and convenience of the traveler on his journey and in accom- 
 plishing its object. Illustrations are numerous. The artist going 
 upon a sketching tour would need paints, brushes, easels, and 
 
 1 Hurwitz V. Hamburg, etc. Packet passenger while traveling. In Rail- 
 
 Co., 56 N. Y. Sup. 579. In Matz v. way Co. v. Fraloflf, 100 U. S. 24, 25 
 
 Railway Co., 85 Ca). 339, it was held L. ed. 531, it was said, whether an 
 
 that ladies' jewelry is not a proper article of wearing apparel in any 
 
 article of baggage to be carried in particular case constitutes baggage, 
 
 the trunk of a man traveling alone as that term is understood in the 
 
 so as to render the carrier liable for law, for which the carrier is respon- 
 
 its value in case of its loss, at least sible as an insurer, depends upon the 
 
 when it is placed in the trunk simply inquiry whether it is such in quan- 
 
 for the purpose of having it trans- tity and value as passengers under 
 
 ported. But in McGill v. Eowand, 3 like circumstances ordinarily or 
 
 Pa. St. 451, it was held that where- a usually carry for personal use when 
 
 man was traveling with his wife, traveling. 
 
 whose jewelry was in a trunk, that 2 79 u. S. (12 Wall.) 272, 3 L. ed. 
 
 it might well be held that the jew- 488; Macrow v. Railway Co., L. R 6 
 
 elry was intended for the use of the Q. B. 621. 
 
 690 
 
CH. T.] BAGGAGE OK THE PASSENGEE's EFFECTS. [§ 671. 
 
 that which would be necessary and convenient for his work, 
 and such effects would be legally held to be his baggage; but 
 if the same individual should be traveling to the wedding of 
 his friend, or on a jfishing or hunting trip, his artist's tools 
 would hardly be considered as baggage, but instead he would 
 naturally take with him clothing and baggage suitable to the 
 object of his journey; if hunting or fishing, his hunting suits, 
 guns, ammunition, and such articles as would be needed on the 
 trip. 
 
 § 671. (4) The eif'ects must be personal to the traveler.— 
 It has been held with great unanimity that the effects carried 
 as baggage must be personal to the passenger. As where a 
 wife purchased books for her husband while abroad with 
 money which he_ remitted to her for that purpose and packed 
 them among her baggage, it was held in an action for loss of 
 the baggage and personal effects that she could not recover, as 
 the books did not constitute a part of her personal effects.' On 
 the other hand, where " a catalogue prepared by a traveling 
 salesman at his own expense, and which was his own indi- 
 vidual property and carried with him as an article conven- 
 ient and necessary for use in his business while traveling, was 
 lost with other articles in a valise, it was held that he could 
 recover for it upon the grounds that it was an article of per- 
 sonal baggage." ^ 
 
 In Oakes v. Railway Co? it was held "that baggage is con- 
 fined to such articles as are usually carried as baggage for the 
 personal use of the passenger, or for his convenience, instruc- 
 tion or amusement on the journey, and does not include that 
 which is carried for the purpose of business, such as merchan- 
 dise or the like." And it has been said that whatever the pas- 
 senger takes with him for his personal use or convenience, 
 either with reference to the immediate necessities or the ulti- 
 mate purpose of the journey, must be considered personal bag- 
 gage. And again, baggage is such articles as it is usual for 
 persons traveling to take with them. And so it has been Uni- 
 versally held that money necessary for the payment of the ex- 
 penses of a journey, which is carried in the trunk of a passen- 
 
 > Hurwitz V. Hamburg, etc. Packet 2 staub v. Kendrick, 121 Ind. 226, 
 Oo., 56 N. Y. Sup. 579. 6 L. E. A. 619. 
 
 8 20 Oreg. 392, 12 L. R. A. 318. 
 691 
 
§ 6Y2.] CAEEIEES OF PASSENGERS. [PAET VI. 
 
 ger, is part of his baggage, and, if lost Avhile in the custody of 
 the carrier for transportation, the carrier would be liable.' 
 
 In Railway Co. v. Berry '^ the court say : " The carrier is 
 liable, as insurer, for money which the passenger, lona fide, 
 includes in his baggage to pay traveling expenses, and for per- 
 sonal use on his journey, provided no more is taken than is 
 necessary or usual for the passenger of like station, habits and 
 condition in life on similar journeys. For any amount in ex- 
 cess of this . . . the carrier is not liable, as such, unless 
 he receives it with notice that the quantity is greater than 
 is usually carried by passengers under the same or similar cir- 
 cumstances." 
 
 In Eunyan v. Railroad Co? the court, summing up the ques- 
 tion as to what is baggage, say : " He (the passenger) was en- 
 titled to take with him, for use, his personal baggage appro- 
 priate to the journey and its object; that is, not only wearing 
 apparel for use and ornament, but also other articles, all within 
 reasonable limit, the use of which was personal to him during 
 his journey and in accomplishing its purposes. To illustrate 
 the character of such articles other than wearing apparel, it is 
 settled that a sportsman journeying for sport may take his 
 gun case or fishing apparatus,* an artist may take his easel 
 when he is on a sketching tour,^ and a student in pursuit of 
 studjr may take his needed books and manuscripts."^ 
 
 § 672. (5) Must be reasonable in amount for the journey 
 and its objects. — It is that which is necessary for the comfort 
 and convenience of the passenger while on his journey, and 
 for the accomplishment of the objects of the journey, that is 
 legally considered to be his baggage. The passenger's personal 
 convenience is the prime consideration. By these necessities 
 the amount of his baggage is limited; it could not reasonably 
 be otherwise, else the passenger might transport large quanti- 
 ties of goods, and the space and power of the carrier devoted 
 to the hauling of baggage would, of necessity, be very much 
 
 'Brown v. Grand, 9 Wend. 85; 5 Gush. 69, 51 Am. Dec. 44; Angell, 
 
 Merrill v. Grlnnell, 30 N. Y. 594; Fair- Carr. 115; 2 Beach, Railways, 59. 
 
 fax V. Railway Co., 73 N. Y. 167. ^ 61 N. J. 537, 43 L. R. A. 284. 
 
 2 60 Ark. 433, 28 L. R. A. 501 ; * Hawkins v. Railway Co., 6 Hill 
 
 Hutch, on Car. 682; SchouL Bailm. (N. Y.), 586, 41 Am. Dec. 767. 
 
 669-71; Story, Bailm. 499; 3 Wood, 5 Merrill v. Grinnell, 30 N. Y. 619. 
 
 Ry. Law, 401; Jordatf v. Railway Co., " Hopkins v. Wescott, 6 Blatchf. 64. 
 
 692 
 
CH. V.J BAGGAGE OE THE PASSBNGEe's EFFECTS. [§ 673, 
 
 increased. As has been said, " the company may rely upon the 
 implied representation that whatever is offered' by the passen- 
 ger as baggage is that and nothing else. If it be baggage, the 
 baggage goes under the contract to carry; if it is not, it does 
 not." 1 
 
 § 673. What is not baggage. — As we have seen, the arti- 
 cles carried must be personal to the passenger and for use 
 upon the journey, or the objects of it, and reasonable in amount ; 
 and so any articles that are carried merely for transportation 
 are not in a legal sense the baggage of the passenger. And if 
 it should appear that a larger amount of money or other effects 
 than was necessary for the expense of or use on the journey, and 
 that which is incident to it, was carried by a passenger in his 
 trunk without the knowledge of the carrier, it could not be 
 held to be baggage. Or, if goods were transported in the 
 trunk of the passenger to be delivered at the end of the jour- 
 ney to some other person, or to be sold, or used for some other 
 purpose than that which would be considered for the personal 
 use of the passenger, such goods would not be considered bag- 
 gage.^ The congress of the United States has deemed it nec- 
 essary to enact a statute with reference to the various valuable 
 articles shipped as freight or baggage on vessels.' And it has 
 been held that under this statute a lady's lace shawl made ex- 
 clusively of Chantilly lace, under the particular circumstances, 
 was not baggage.* And where the plaintiff's trunk, which was 
 checked, contained among other goods bank-notes of a large 
 amount, it was held that such money could not be considered 
 as included under the term " baggage" so as to render the carrier 
 liable for it.^ So watches of great value, which were not in- 
 cident to the journey, contained in a traveling case, and addi- 
 tional to the one that was worn upon the person of the passen- 
 ger, a sack or a muff, or a napkin-ring carried by a male 
 passenger, have been held not to be legally baggage, for to hold 
 
 iStimson v. Railway Co., 98 Mass. 83; Humphreys v. Perry, 148 V. S. 
 
 83; Railway Co. v. Bowler, etc. Co., 627, 37 L. ed. 587; Railway Co. v. 
 
 63 Ohio St. 274; Railway Co. v. State, Fraloff, 100 U. S. 24, 25 L. ed. 531. 
 
 65 Ark. 363, 41 L. R. A. 33; Railway ^ U. S. R. S., seo. 4383. 
 
 Co. V. Swift, 79 U. S. (13 Wall.) 273; < Ocean S. S. Co. v. Way, 90 Ga. 
 
 Railway Co. v. McGahey, 63 Ark. 747, 20 L. R. A. 128. 
 
 344, 36 L. R. A. 781. * Bank v. Brown, 9 Wend. 85. 
 
 ^Stimson v. Railway Co., 98 Mass. 
 
 693 
 
§ 674:.] CAEEIEES OF PASSENGERS. [PAET VI. 
 
 them to be baggage would be in violation of the rule that the 
 effects must be personal to the convenience, comfort, instruc- 
 tion or entertainment of the passenger.^ 
 
 In Oakes v. Railway Co? it was held that articles of what- 
 ever kind that do not properly come within the descrip- 
 tion of ordinary baggage are not included within the terms of 
 such contract, nor is the carrier liable for their loss or destruc- 
 tion in the absence of negligence. So stage properties, cos- 
 tumes, paraphernalia, advertising matter, etc., are not articles 
 required for the pleasure or convenience or necessity of the 
 passenger during his journe}', but are plainly intended for the 
 larger or ulterior purposes of carrying on the theatrical busi- 
 ness, therefore they do not fall under the denomination of bag- 
 gage. 
 
 § 674. Sample trunks or commercial effects. — As we 
 
 have seen, the carrier is bound to carry for the passenger his 
 baggage — such baggage as is personal to him and belongs to 
 what is termed " ordinary baggage," as applied to the particular 
 person and the particular journey; but he is not bound to carrj' 
 articles of merchandise, or that which is not ordinary baggage, 
 unless he consents to carry them as such after having notice, 
 either express or constructive ; that is, such notice as would be 
 indicated by facts, circumstances or observation that the arti- 
 cles are not baggage. There should be notice of some kind 
 to the carrier that the articles contained in the trunk or pack- 
 age are not the personal baggage of the passenger Such no. 
 tice is often inferred from tbe appearance of the package con- 
 taining the articles, or from the knowledge of the servants 
 of the carrier that the passenger is engaged in the business 
 of carrying such articles. The business carried on by com- 
 mercial travelers through the country has come to be so 
 well understood that it is not difficult to discern which are the 
 sample trunks and which the trunks supposed to contain per- 
 sonal baggage. In Sloman v. Railway Co? it was said: "It. 
 does not appear that it was stated, in terms, to the baggage- 
 master what the trunks contained, but the jury had the right 
 
 1 Railway Co. v. Boyce, 73 111. 510; 220 Oreg. 393; Wilson v. Railway 
 Belfast V. Railway Co., 9 H. L. 556; Co., 56 Me. 62. 
 
 Railway Co. v. Shepherd, 8 Exoh. 30. 3 67 N. Y. 208; Talcott v. Railway 
 
 Co., 159 N. Y, 661, 54 N. E. 1. 
 694 
 
OH. v.] BAGGAGE OE THE PASSENGEE's EFFECTS. [§ 674. 
 
 to consider the surrounding circumstances, the appearance of 
 the passenger and of the articles, the conversation between the 
 passenger and the baggage-master, and the dealings between 
 them ; and if they indicated that the trunks were not ordinary 
 baggage, or received or treated as such, the jury had the right 
 to draw the inference of notice, and that they were received 
 as freight." And where a sample trunk was checked " without 
 any misrepresentation, and without any release of liability or 
 any request therefor, on payment of a charge for excess bag- 
 gage, which was the same for sample trunks as for ordinary 
 baggage, and the baggageman had constructive notice of the 
 character of the trunk from its appearance and from other cir- 
 cumstances, although there was a rule of the company prohib- 
 iting the checking of sample trunks without a release of lia- 
 bility," it was held in an action for the loss of the trunk that 
 the railroad company was liable; that from the surrounding 
 facts and circumstances the carrier was chargeable with notice 
 that it was a commercial traveler's trunk, the court saying: 
 " This court has held that notice may be given to the common 
 carrier by other means than the direct statement of the owner 
 that he is a commercial traveler and that his trunk contained 
 samples." ^ 
 
 Where the carrier knowingly permitted passengers, without 
 payment of any extra charge, such passengers having purchased 
 tickets for their transportation, to take articles as personal bag- 
 gage which were not properly such, it was held that the car- 
 rier was liable for their loss and destruction as insurers of such 
 baggage in the same manner and to the same extent as if the 
 goods were freight.^ The court say: "While it is true that 
 
 1 Trimble v. Railway Co., 163 N. T. packages for that purpose violates 
 
 84, 48 L. R A. 115. a regulation of the company by so 
 
 ^Oakes v. Railway Co., 20 Oreg. doing, notwithstanding the pas- 
 393; Story on Bailm. 499; Railway senger or owner of the goods has no- 
 , Co. V. Shepherd, 8 Exch. 30; Sloman tice of such regulation." Butler v. 
 V. Railway Co., 6 Hun, 546. The court Railway Co., 3 E. D. Smith, 571 ; Hanes 
 say; "As to the liability of the car- v. Railway Co., 39 Minn. 161; Rail- 
 rier, they are liable if they know- way Co. v. Capps (Tex.), 16 Am. & 
 ingly undertake to transport mer- Eng. Ry. Cases, 118. Held, where a 
 chandise in trunks or boxes which railroad company, through its bag- 
 have been received by them for gage or ticket agent, receives arti- 
 transportation in passenger trains, cles for transportation as baggage 
 unless the agent who receives the knowing at the time that such arti- 
 
 C95 
 
§ 675.] CAEEIEES OF PASSKNGEES. [PAET VI. 
 
 passenger carriers are not liable for merchandise and the like 
 when packed with the traveler's baggage if the baggage be lost, 
 yet if the merchandise be so packed as to be obviously mer- 
 chandise to the eye, and the carrier takes it without objection, 
 he is liable for the loss." The rule, of course, would be other- 
 wise if the passenger by deceit or misrepresentation procured 
 the shipment of articles that were not properly baggage, as 
 baggage, or if there was no such constructive notice as has 
 been mentioned, and the facts were not known to the servants 
 of the carrier that the trunks or packages contained articles 
 not baggage ; in such case the carrier would not be liable as an 
 insurer for the value of such articles if they were lost, and his 
 liability could only be based upon his fault or negligence re- 
 sulting in the loss of the property. 
 
 § 675. Payment of excess baggage.^ The implied con- 
 tract to carry the ordinary baggage of the passenger rests upon 
 the consideration paid for his transportation ; and if articles not 
 baggage, such as merchandise or samples of traveling men with 
 the knowledge of the carrier, or after having notice of the con- 
 tents of the trunks or packages, are carried as baggage, the 
 same consideration will support the implied contract to safely 
 carry, and the carrier will be liable as if it were ordinary bag- 
 gage; but carriers generally have made a regulation as to how 
 many pounds of baggage the passenger will be allowed, and that 
 all over that amount shall be charged as excess baggage and cer- 
 tain rates paid for its carriage; and in case it is merchandise or 
 such articles as are not baggage, that a release of their liability 
 as insurers shall be given them. Such regulations have been 
 generally conceded reasonable and binding, so a further and 
 another consideration is generally charged and paid to support 
 the contract for the carriage of excess baggage, and this con- 
 tract creates a somewhat different relation. The duties and 
 liabilities, however, of the carrier of passengers are the same 
 whether the articles are carried as baggage or upon a contract 
 supported by payment of consideration to carry them as excess 
 baggage. 
 
 cles are not properly baggage, the was not baggage. Railway Co. v. 
 company will be responsible there- Couklin, 38 Kan. 55; Hoeger v. Rail- 
 for as a common carrier, and will be way Co., 63 Wis. 100. 
 estopped from denying that the same 
 
 696 
 
en. T.J BAGGAGE OK THE PASSENGEe's EFFECTS. [§§ GTG, 677. 
 
 §676. Reasonable regulation.— The carrier of pas- 
 sengers may make regulations touching its duties and liabili- 
 ties as to baggage, but such regulations must be reasonable, 
 and their reasonableness is a question for the jury.^ It has 
 been held that the carrier cannot suddenly and without notice 
 to its customers change its customs and regulations not acqui- 
 esced in.^ And where a carrier had printed upon the ticket 
 delivered to the passenger, " Good for one continuous passage 
 in either direction between New York and Elizabeth, IST. J. 
 K"o stop-off allowed. Free transportation allowed for 150 lbs. 
 baggage (wearing apparel) only, and company's liability ex- 
 pressly limited to $1.00 per lb.," and where the passenger 
 with such a ticket undertook to board a train of the defendant 
 carrying certain packages in his hands which were not per- 
 sonal baggage, and was prohibited by the servants of the com- 
 pany for the reason that the company did not permit its pas- 
 ■sengers holding such a ticket to carry such packages upon its 
 train, it appearing that the custom for a long time had been 
 otherwise, and the passenger had no notice of any change or 
 other regulation, the court, in an action for damages, held the 
 defendant liable, and in the opinion say: "We think if the 
 defendant company had, previous to the denial of admission 
 of the plaintiff to their cars complained of, for a long time ac- 
 quiesced in, and made accommodations for, the carriage of 
 small packages of merchandise of its passengers as personal 
 baggage, so as to lead them to accept and rely upon its atti- 
 tude -in that respect as one of its regulations, that it could re- 
 sume its right under the law only after reasonable notice of 
 its rescission of the regulations so made. It could not sud- 
 denly enforce the right resumed against passengers who were, 
 in good faith, traveling in reliance upon the previous regula- 
 tion, without reasonable notice, and ignorant of, and unpre- 
 pared for, any change in it."' 
 
 § 677. Good faith.— Good faith and fair dealing is re- 
 quired of the passenger toward the carrier. If from the appear- 
 
 1 State V. Overton, 34 N. J. L. 235, ^Runyan v. Railway Co., 61 N. J. 
 
 61 Am. Deo. 671; Railway Co. v. Ste- 537, 43 L. R. A, 284; Trimball v. Rail- 
 
 vens, 95 U. S. 655, 24 L. R. A. 535; way Co., 162 N. Y. 85. 
 
 Railway Co. v. Stockyard Co., 45 N. ^ Runyan v. Railway Co., 61 N. J. 
 
 J. Eq. 67, 6 L. R. A. 855; CofEee v. 537, 43 L. R. A. 284. 
 Railway Co., 25 So. 157. 
 
 697 
 
§ 678.] CAEEIEES OF PASSENGERS. [PAET VI. 
 
 ance of the trunk delivered to the carrier for transportation as 
 his baggage, or from the circumstances appearing at the time, 
 the carrier could not discover that the effects being carried were 
 baggage — that the contents of the trunk, or receptacle, was 
 goods or property other than baggage, he would not be held 
 liable for its loss; in such case the passenger is bound to give 
 the carrier notice of the contents of the trunk and obtain his 
 acquiescence to carry it as baggage if he would make him lia- 
 ble. The law will not permit the passenger by trick, or secret 
 packing away of articles not baggage, of which the carrier has 
 no knowledge, to hold him liable for their loss or injury. In 
 Railway Co. v. Berry ^ the court say : " The passenger must 
 observe the utmost candor and good faith in presenting his 
 baggage for transportation, for the carrier is only required to 
 transport according to appearances. If the passenger presents 
 his baggage in a closed receptacle, such as is ordinarily car- 
 ried as baggage, in order to lay upon the carrier the extraor- 
 dinary responsibility of insurer, the passenger must inform him 
 if it contains any articles which the carrier is not bound to 
 transport as baggage. This for the reason that the carrier, 
 when thus notified, may refuse to carry altogether, or accept 
 and charge an additional sum to the passenger's fare for the 
 onerous liability he thus assumes." 
 
 § 678. The owner of the baggage should be a passenger. — 
 The contract for carrying the baggage is incident to the con- 
 tract for the carriage of the owner as a passenger, and, as we 
 have seen, it rests upon the same consideration. It would 
 therefore follow, if the owner of the baggage is not a passen- 
 ger, the liability of the carrier, as a carrier of passengers, 
 could not exist, and if liable at all it must rest upon other 
 grounds. If the carrier had consented to carry the baggage 
 and received a valuable consideration for it, he would, of course, 
 become liable as a common carrier of freight; if he consented 
 to carry it without compensation, he would be liable as a gra- 
 tuitous bailee, liable only for gross negligence.^ 
 
 160 Ark. 433, 28 L. R. A. 501, citing 34; 2 Beach, Railway Law, 903; Da- 
 Sclioul. Bailm., sec. 669 eiseg.; Hutch, vis v. Railway Co., 22 111. 378 and 
 Carr., sec. 685; Edw. Bailm., sec. 539; other authorities. 
 3 Wood, Railway Law, sees. 401, 406, ^ Collins v. Railway Co., 10 Cush. 
 408; Railway Co. v. Fraloff, 100 U.S. (Mass.) 506. 
 
 698 
 
OH. V.J BAGGAGE OE- THE PASSENGEe's EFFECTS. [§ 679. 
 
 § 679. Should the owner accompany the baggage. — If the 
 
 relation of passenger and carrier exists between the carrier 
 and the owner, it would not be necessary that he should go upon 
 the same train or boat with the baggage, if the circumstances 
 were such that the carrier could be said to have had notice 
 and consented, or if the carrier had sent the baggage by an- 
 other train, or by another line, without consulting the passen- 
 ger, and without his consent. It has been held that when a pas- 
 senger making a journey over connecting lines holds tickets over 
 such lines, and, desiring to proceed Upon his journey, found his 
 baggage had not arrived so he could check it for the train he was 
 about to take, and the carrier agreed to send it when it did arrive, 
 by the first train, that in such case the carrier would be held to 
 the usual liability.^ But if there is no agreement or consent or 
 voluntary sending by a different way by the carrier, it seems 
 that the carrier is entitled to have the owner accompany his 
 baggage, for the reason that to some degree it might lessen the 
 liability of the carrier, as in case of disaster by wreck or fire, 
 or some other loss, especially at the destination point, for in 
 such case the passenger might relieve the carrier of the bag- 
 gage, and thus save its loss or destruction. A case often cited 
 is Collins v. Railway Go.^ where the passenger went by a dif- 
 ferent train upon the same road and the goods were lost with- 
 out any gross negligence of the carrier, or any conversion by 
 him ; it was held that the carrier was not liable for the loss. 
 The court say : " It is easy to perceive that the omission of the 
 plaintiff to accompany them (the baggage), as he informed the 
 defendant's agent he should, contributed materially to the loss, 
 and that what might have been a very proper and suitable dis- 
 position of them at the station at Lawrence, under the reason- 
 able belief that the owner of them was present to take charge 
 of them, might have been one of hazard and exposure to loss 
 in his absence." 
 
 Where a carrier received baggage under the mistaken sup- 
 position that it belonged to passengers who had purchased 
 tickets over its road, and that the transportation of the bag- 
 
 1 Warner v. Railway Co., 33 Iowa, not obliged to receive as baggage the 
 176. In Graffin v. Railway Co., 67 trunk of one who does not go by the 
 Me. 234, 15 Am. Ry. Rep. 373, it was same train, 
 held that the railroad company was 2 lo Cush. (Mass.) 506. 
 
 699 
 
■§§ 680, 681.] CAEEIEES OF PASSENGEES. [PAET VI. 
 
 gage was consequently paid for; and without intending to 
 make any charge for the transportation, and the owner of the 
 baggage erroneously supposed that in purchasing tickets to 
 the destination of the baggage over another road he had paid 
 for the transportation by the carrier to which he had deliv- 
 ered the baggage, it was held that there was no implied con- 
 tract for the transportation of the baggage, and that the carrier 
 owed to the owner the duty only of abstaining from anything 
 amounting to wilful or wanton injury to his property while in 
 its possession, and that the carrier was not liable for its de- 
 struction in common with their own property caused by at-' 
 tempting to run the train in which it was placed upon an 
 unguarded bridge, which was and long had been so defective 
 that it could not stand such a burden.^ But it has been held 
 that it would be sufficient if the baggage was accompanied by 
 one who had an interest in the baggage, and who ordinarily 
 would represent the owner of it; as, for example, where the 
 wife of the owner accompanied the baggage.^ 
 
 § 680. Baggage of one riding upon a free pass. — If there 
 is no consideration for the carriage of the passenger — if it is 
 a mere gratuity, — then there can be no consideration for the 
 contract incident to it, and the carriage of the baggage is 
 gratuitous; therefore the carrier in that case would be a bailee 
 for the sole benefit of the bailor and subject only to the liabil- 
 ity of such a bailee. The rule would be different, however, if 
 there was a consideration for the giving of the pass, as where 
 some service was rendered the carrier. 
 
 § 681. Liability of the carrier for baggage under his ex- 
 clusive control. — It may be said generally that for baggage 
 of the passenger that is under the exclusive control of the car- 
 rier, the liability of the carrier is that of an insurer, or of a 
 carrier of goods.* 
 
 1 Curtis V. Railway Co., 74 N. T. Hawkins v. Hoffman, 6 Hill (N. Y.), 
 116-131. 586; Campbell v. Perkins, 8 N. Y. 430; 
 
 2 Beers et ux. v. Railway Co., 67 Merrill v. Grinnell, 30 N. Y. 494; Fla- 
 Conn. 417, 34 Atl. 541. herty v. Greenman, 7 Daly (N. Y), 
 
 ' Seasongood v. Railway Co., 14 Ky. 481. When shipped over different 
 L. R. 430; Bank v. Brown, 9 Wend, routes by the agent of the company, 
 "851, 31 Am. Dec. 139; Cole v. Good- liable as an insurer. Estes v. Rail- 
 win, 19 Wend. 851, 33 Am. Dec. 470; way Co., 7 N. Y. Sup. 574. 
 
 700 
 
CH. T.J BAGGAGE OB THE PASSENGEe's EFFECTS. [§ 682. 
 
 §682. Hand baggage.— In determining wliat articles ar& 
 legally hand baggage the same rules apply that have already 
 been discussed. By hand baggage is meant those smaller arti- 
 cles of baggage usually carried in hand bags, valises or such 
 like small packages; such articles of apparel as are necessary 
 'to the comfort and needs of the passenger on his journey, and 
 which he usually keeps near him while being transported in 
 the vehicle of the carrier. It may include an amount of money 
 carried in his valise or traveling bag, or under some circum- 
 stances in his clothing, carried for the expenses of his journey 
 and consisting of a reasonable amount for other purposes. The 
 question of the duty and the liability of the carrier seems to- 
 depend upon who has the custody or control of the baggage. 
 If the passenger has the entire custody and control of the 
 baggage to the exclusion of the carrier, if, as has been said, 
 "there exists the anirno custodiendi on the part of the traveler 
 to the exclusion of the carrier," then the carrier cannot be held 
 as an insurer as in the case of baggage in the entire custody 
 and control of the carrier, and will not be liable at all unless 
 guilty of negligence which results in its loss or damage, in the. 
 absence of contributory negligence on the part of the passen- 
 ger. The cases are numerous upon this subject. Where a pas- 
 senger's baggage was placed on a seat near an open widow by 
 the porter of the car, and while the car was standing in the 
 depot the passenger left the car, but his wife, who was traveling 
 with him, remaining within and walked up and down the aisle, 
 then went out on the platform, and then sat down in a seat fac- 
 ing the baggage, and the baggage was stolen, it was held in an 
 action for the loss that it was a question for the jury whether 
 the passenger or his wife was negligent.^ And where a pas- 
 senger who was attempting to close the car window dropped 
 her traveling bag out of the window, it was held she could not 
 recover, though the bag contained articles of great value, and 
 the conductor, who was at once requested to do so, refused to 
 stop the train to enable the passenger to recover the property. 
 In the opinion of the court, Mr. Justice Grey said : " She did 
 not intrust her traveling bag to the exclusive custody and care 
 of the defendant's servants, but kept it in her own immediate 
 possession without informing the defendant of the value of its 
 
 1 Dawley v. Pa!ace-Car Co., 169 Mass. 315. 
 701 
 
§§ 683-(JS5.] CAEEIEES OF PASSENGERS. [pAET \I. 
 
 contents until after it had dropped from her hands through 
 the open window." But where a passenger surrendered his 
 hand baggage, to the agent of a transfer company to be con- 
 veyed from one depot to another, and it was lost, the company 
 was held liable; this, of course, rested upon the fact of the 
 control of the baggage being in the transfer company.^ 
 
 § 683. Sleeping-car companies. — The duties and liabilities 
 of sleeping-car companies to care for hand baggage and per- 
 sonal effects of the passenger taken into their cars has already 
 to some extent been discussed.^ The question is one of negli- 
 gence, to be determined by all the circumstances of the partic- 
 ular case. It may perhaps be said that greater care of the 
 baggage and effects of the passenger is required of the sleep- 
 ing-car company than of the servants employed upon the ordi- 
 nary day-coach of a railroad company ; that is to say, ordinary 
 diligence in the one case would be a greater degree of dili- 
 gence than in the other, because the sleeping-car company 
 holds out to the public that they will assume the duty of car- 
 ing for the passenger and his effects which are placed in the 
 care of their servants. 
 
 § 68-1:. Liability for theft of servants.— The passenger im- 
 pliedly has the guaranty of the company that its servants can 
 be trusted, and if they steal from the passenger his baggage 
 or effects the company is liable. Where the master, by con- 
 tract or by operation of law, is bound to do certain acts, he 
 cannot excuse himself from liability upon the ground that he 
 has committed that duty to another, and that he never author- 
 ized such person to do the particular act. Being bound to do 
 the act, if he does it by another he is treated as having done it 
 himself; and the fact that his servant or agent acted contrary 
 to his instructions without his consent, or even voluntarily, 
 will not excuse him.' 
 
 § 685. A liigh degree of ordinary diligence required. — 
 The liability of the sleeping-car company for the baggage of 
 its passengers is not that of an insurer, but the company is 
 
 iStaub V. Kendriok, 121 Ind. 226. Tenn. 53, 21 L. R. A. 298; Pullman 
 Mjtfe,§641 eiseg./Dawley V. Pal- Car Co. v. Mathews, 74 Tex. 655; 
 
 aoe Car Co., 169 Mass. 315. Pullman Car Co. v. Martin, 95 Ga. 
 
 3 Wood, Master and Servant, sec. 314, 29 L. R. A. 498; 111. Cent. R. Co. 
 
 321; Pullman Car Co. v. Gavin, 93 v. Handy, 63 Miss. 709. 
 
 703 
 
OH. v.] BAGGAGE OE THE PASSENGEe's EFFECTS. [§ 686. 
 
 held to ordinary diligence and watchfulness over the effects of 
 its passengers placed in its custody; and it may be said that 
 this ordinary diligence, because of the circumstances and sur- 
 roundings, and because of the fact that the passenger has 
 submitted his effects, if not his own safety, to the watchful 
 care and diligence of the servants of the sleeping-car company 
 at night while he sleeps, would demand a very high degree of 
 diligence. All his effects are surrendered to the vigilance and 
 watchfulness of the servants of the company, and he is depend- 
 ■ ent upon them for their care and custody, and so in such case 
 it would seem that it is, at all events, a high degree of ordinary 
 care that will be required of the company.^ 
 
 §686. Mixed custody of passenger and carrier — Is the 
 liability of steamship company and innkeeper the same? — 
 A distinct and separate class of cases, with different phases of 
 liability, are cases where the custody of the baggage may be 
 said to be " a mixed custody of the passenger aud the carrier; " 
 as, for example, where the baggage is placed in the state-room 
 of the passenger upon the steamer and he is given the key to 
 the room, or in the compartment of the car upon which he is 
 being conveyed, which he occupies exclusively and of which he 
 has the entire control. So great is the similarity between an inn 
 or hotel and a passenger steamship where the passengers are 
 roomed, boarded and cared for upon their voyage, that some 
 of the courts have declared that it is a floating inn, and that 
 the liability of the steamship company operating these great 
 haes of steamers is the same as that of an innkeeper. The 
 similarity certainly exists and the argument is one of great 
 force. A room is assigned to the passenger where he can sleep 
 at night, and stay if he desires through the day; he is given a 
 key to the room, and may appropriate it as fully and exclu- 
 sively as does a guest at a hotel. His baggage is taken to his 
 room as it is at a hotel ; the servants of the steamship having 
 charge of this department have access only to attend to the 
 
 ' A sleeping-car company is not Diehl, 84 Ind. 474, 43 Am. Rep. 102. 
 
 liable as an insurer of a passenger's Bound to use reasonable care, etc. 
 
 effects, but only as a bailee for hire. Lewis v. Sleeping-Car Co., 143 Mass. 
 
 Root V. Sleeping-Car Co., 28 Mo. App. 267; Carpenter v. Railway Co., 124 
 
 199; Efron v. Pullman Car Co., 59 N. Y. 53. 
 Mo. App. 641; Sleeping-Car Co. v. 
 
 708 
 
§ 686.1 OAERIEES OF PASSENGERS. [PAET YI. 
 
 wants of the passenger and to attend to keeping the room in 
 order as in a hotel; when he leaves his room he may lock the 
 door and take with him the key as at a hotel; if he has valu- 
 ables he may, and is generally requested to, deposit them with 
 the purser of the boat for safe-keeping; his meals are served in 
 the dining-room of the steamer, and he lives upon the steamer 
 the same as he lives at a hotel; the custody of his baggage is a 
 mixed custody of himself and the carrier, as at a hotel it is a 
 mixed custody of himself and the hotel proprietor or his serv- 
 ants. The authorities, however, do not agree upon this ques- 
 tion, but it would seem that the greater force of reasoning, 
 which means the greater weight of authority if not the greater 
 number of cases, is with the contention that such steamships 
 are liable as innkeepers, though some of the authorities con- 
 tend with a considerable degree of force that steamships are 
 not floating inns, and that the steamship company's liability is 
 not the same as that of an innkeeper; and that to hold the steam- 
 ship company for loss of baggage that is in the custody of the 
 passenger it is necessary to show that the carrier was guilty of 
 negligence which resulted in its loss or injury.' 
 
 The supreme court of Michigan divided upon this question 
 in MoKee v. Owen; ^ Judge Christiancy and Judge Cooley hold- 
 ing that the steamship is an inn, and that the liability for 
 baggage lost or injured is that of an innkeeper. The opinion 
 of Judge Christiancy is strong and lucid. He says in part: 
 " But when a steamer is fitted up with regular sleeping apart- 
 ments, and all the appliances for boarding and lodging her pas- 
 sengers as at an inn, and the owners and managers hold them- 
 
 1 An ocean steamship company is board and lodging." In Abbott v. 
 
 not responsible as a common carrier Bradstreet, 55 Jle. 530, it was held 
 
 or an innkeeper for the baggage of the carrier was not liable for money 
 
 a passenger which he keeps in his stolen from the pocket in absence of 
 
 own possession in his state-room, but proof that the robbery was by one 
 
 must answer in such cases for its of the employees. Steamship com- 
 
 negligence like other bailees for pany not liable for wearing apparel 
 
 hire. American Steamship Co. v. or money which is not delivered to 
 
 Bryan, 83 Pa. St. 446. And Clark the officer of the boat for safe-keep- 
 
 V. Burns, etc. Co., 118 Mass. 275, held ing. Crystal Palace v. Vanderpool, 
 
 "the owner of a steamship carrying 55 Ky. 302; Del Valle v. Richmond, 
 
 passengers for hire is not an inn- 27 La. Ann. 90. 
 keeper, although the passenger pays - 15 Mich. 115-129. 
 a round sum for transportation, 
 
 704 
 
CH. T.J BAGGAGE OE THE PASSBNGEe's EFFECTS. [§ 686. 
 
 selves out to the traveling public as furnishing such accommo- 
 dations, and by these superior advantages induce travelers (as 
 they naturally must) to prefer this to the less comfortable mode 
 of traveling by railroads and stage-coaches, or even by vessels 
 without such accommodations, when they receive the fare of a 
 passenger, which includes not only his passage, but his board 
 and sleeping room and bed, and when that room is assigned to 
 him and he retires to it for the night, the whole transaction, it 
 seems to me, carries with it an invitation to make use of the 
 room and the bed for the purposes and in the manner for which 
 they were obviously designed ; in other words, to lay aside his 
 clothing and to go to sleep there. And unless he is expected 
 to sleep with his eyes open, and his faculties upon the alert, he 
 is invited to lay aside all the vigilance he would be expected 
 to exercise when awake, and to trust himself and his clothing 
 and such money and property as he may have about him, and 
 as it is usual for passengers to carry in their clothing, to the 
 protection afforded by the room, and the vigilance to be ex- 
 ercised by those in charge of the boat. And the latter must, 
 in the absence of any usage, request or notice to the contrary, 
 be held to assent that the passenger shall leave such clothing 
 and contents at any convenient place in the room, instead of 
 having to call the steward, clerk or other officer or servant of 
 the boat to take it into his actual or manual custody — a pro- 
 ceeding which (as it must take place after the passenger is un- 
 dressed) would be somewhat awkward in the case of a lady pas- 
 senger at least. And, having been thus invited to rely upon 
 the protection of his room, and their vigilance instead of his 
 own, the invitation, it seems to me, carries with it an assur- 
 ance that they will be responsible in the meantime for all 
 losses of such clothing and contents, from which he might by 
 his own vigilance have protected himself when up and awake. 
 If they do not thereby assume this responsibility, then it is no 
 'figure of speech,' but a literal truth, to say that by their in- 
 vitation the passenger has been lulled into a false security. I 
 express no opinion upon the question whether the liability of 
 the defendants in respect to the loss of such money and prop- 
 erty in other modes or from other causes would be commen- 
 surate or identical with that of an innkeeper. The facts of 
 this case do not call for an opinion upon a question as broad as 
 45 . 705 
 
§ 686.] CAEEIEES OF PASSENGEES. [PAET TI. 
 
 this. But so far as relates to the facts of this case, the loss 
 of this money and chain in the manner and under the circum- 
 stances the evidence tended to prove, I think the assurance held 
 out by the defendants to the plaintiff is the same as that held 
 out by the innkeeper to a guest occupying a bed-room at his 
 inn; and that the responsibilit}' of the defendants for the loss 
 of the chain and so much of the money as should be found rea- 
 sonable for the expenses of the journey is the same as that of 
 the innkeeper for a loss occasioned in the same way; and that 
 the responsibility rests upon precisely the same, and all the 
 same reasons in both cases; and this, whether the money and 
 chain were stolen through the window from without, or by the 
 stranger lady who had been assigned to, and occupied the room 
 with, the plaintiff, without any choice or agency of hers, and 
 by the act of the proper authorities of the boat. Had the lady 
 been a traveling companion of the plaintiff, the case, as to this 
 point, would have been different, and so, probably, if she had 
 been assigned to the same room at the plaintiff's request." 
 
 A late case in New York {Adams v. Steamhoat Go}) holds to 
 the same doctrine, where money was taken from the clothing 
 of the passenger occupying a state-room during the night, the 
 doors being locked and the windows fastened. The court say: 
 " The relations that exist between a steamboat company and 
 its passengers, who have procured state-rooms for their com- 
 fort during the journey, differ in no essential respect from those 
 that exist between the innkeeper and his guests. The passen- 
 ger procures and pays for his room for the same reasons that a 
 guest at an inn does. There are the same opportunities for 
 fraud and plunder on the part of the carrier that were origi- 
 nally supposed to furnish a temptation to the landlord to violate 
 his duty to the guest. A steamer carrying passengers upon 
 the water, and furnishing them with rooms and entertainment, 
 is for all practical purposes a floating inn, and hence the duties 
 which the proprietors owe to the passengers in their charge 
 ought to be the same. No good reason is apparent for relax- 
 ing the rigid rule of the common law which applies as between 
 
 1151 N. Y. 163, 34 L. R A. 683; Pur- 453; Mudgett v. Bay State, etc., 1 
 vis V. Coleman, 21 N. Y. Ill; Van Baly (N. Y.), 157. 
 Horn V. Kermit, 4 E. D. Smith (N. Y), 
 
 706 
 
CH. v.] BAGGAGE OE THE PASSENGEe's EFFECTS. [§§ 687, 688. 
 
 innkeeper and guest, since the same considerations of public 
 policy apply to both relations." 
 
 § 687. The baggage of a steerage passenger. — The baggage 
 of a steerage passenger is usually taken possession of by the 
 passenger, and his possession is exclusive to himself, thus re- 
 lieving the steamship company from liability as an insurer, 
 their liability only resting upon proof of negligence upon the 
 part of the carrier which resulted in the loss or injury of the 
 baggage. And where a steerage passenger took entire charge 
 and control of his baggage, taking it into the steerage, placing 
 it under his berth and fastening it to his berth with ropes, and 
 during the voyage it was stolen, it was held that the steamship 
 company was not liable.^ 
 
 §688. Termination of liability. — The object of the con- 
 tract to carry the baggage, which we have seen is an implied 
 contract, is to deliver it at the end of the journey, or to the 
 passenger who procured it to be carried where he shall demand 
 its delivery. Upon tlie part of the passenger it is presumed 
 that he is anxious to receive it at once upon its arrival ; upon 
 the part of the carrier, that he is ready and willing to deliver 
 it to the passenger at once upon its arrival at the place of desti- 
 nation. The liability of the carrier terminates upon delivery 
 to the passenger of his baggage in good condition at the end 
 of his journey, or wherever it may be called for by the pas- 
 senger and delivered to him by the carrier. So it follows that 
 it is the duty of the carrier not only to safely carry the bag- 
 gage, but of the passenger to at once upon his arrival at his 
 destination, or within a reasonable time, to call for and re- 
 ceive it. 
 
 The authorities are to the effect, with but very little if any 
 dissent, that it is the duty of the passenger to receive the bag- 
 gage within a reasonable time, and they generally hold that a 
 reasonable time is not later than the same occasion upon which 
 he arrives at his destination ; that it would not be a reasonable 
 time where the passenger waits until the next day before taking 
 the baggage away. And so it was held that where a passenger 
 who leaves his baggage upon a depot platform merely because 
 on his arrival after eleven o'clock at night there were no con- 
 veyances running by which he could take it away, and it was 
 
 1 Cohen v. Frost, 9 N. Y. Super. Ct. 335. 
 
 707 
 
§ 6S9.] CAEEIEES OF PASSENGEES. [PAET VI. 
 
 burned in the depot during the night, that the railroad com- 
 pany was not liable as a common carrier, but only as a ware- 
 houseman.^ The passenger may take his baggage from the 
 custody of the carrier at any time and terminate the relation. 
 § 689, Failure of carrier to deliver baggage. — The liability 
 of the carrier, of course, depends upon its failure to perform its 
 duty toward the passenger, and so if he fails to deliver the 
 baggage to the passenger when demanded, or at its destination, 
 he would be liable. If, however, the failure of the carrier was 
 the result of the fault or contributory negligence of the pas- 
 senger, the carrier would not be liable; as where the loss oc- 
 curred by reason of the passenger taking his baggage, without 
 the consent of the officers of the steamer, to his state-room, which 
 could not be locked and from which it was stolen, it was held 
 the carrier was not liable. But if the loss occurs because of 
 the fault of the carrier, and there is no contributory fault on 
 the part of the passenger, the carrier will, of course, be liable. 
 As where the baggage or property committed to the carrier 
 was brought bj'^ its negligence under the operation of natural 
 causes that worked its destruction, or was exposed to such 
 cause of loss, it was held that the carrier was responsible.^ And 
 so it would follow that a common carrier would not be exempted 
 from liability for a loss, even though it takes place because of 
 an act of God, if the carrier has been guilty of any previous neg- 
 ligence or misconduct which brings the property into contact 
 with the destructive forces of the actus Dei, or unnecessarily 
 exposes it thereto.' 
 
 1 Railway Co. v. Lyon, 123 Pa. St. v. MoGahey, 63 Ark. 344, 36 L. R A. 
 
 140. The responsibility of a railroad 781 ; Gleason v. Transp. Co., 33 Wis. 
 
 company for baggage as a carrier 85, 14 Am. Rep. 716. 
 
 after it reaches the destination of the ^ Wald v. Railway Co., 162 111. 545, 
 
 passenger continues only until he has 35 L. R. A. 356. 
 
 had a reasonable time and oppor- ^ Wald v. Railway Co., SMpro. 
 tunity to take it away. Railway Co. 
 
 708 
 
CHAPTER VI. 
 
 ACTIONS AGAINST COMMON CARRIEEa 
 
 I, Actions Against Common Car- 
 riers OF Goods. 
 § 690. The basis of the actions. 
 
 691. As to what actions will lie. 
 
 692. Even if there is a special 
 
 contract. 
 
 693. The advantages of the action 
 
 60! delicto. 
 
 694 For refusal to carry the 
 
 goods. 
 
 695. The parties. 
 
 696. The consignee. 
 
 697. One having a special prop- 
 erty in the goods. 
 
 698. The consignor. 
 
 699. The defendant. 
 
 THE PLBADLNQS. 
 
 700. Pleadings follow general rules. 
 
 701. Defenses. 
 
 THE proofs. 
 703. What proofs should be ad- 
 duced. 
 703. Negligence. 
 704 Defendant's proofs. 
 
 DAMAGES. 
 
 705. Of what they generally con- 
 
 sist. 
 
 706. Actual, exemplary, punitive 
 
 or vindictive damages. 
 
 707. Exemplary damages confined 
 
 to liberal, compensatory or 
 
 actual damages. 
 708. Liability of principal or 
 
 master for acts of agents or 
 
 servants. 
 709. Damages for refusal to receive 
 
 and transport. 
 
 710. 
 711. 
 
 713. 
 
 713. 
 
 714 
 
 715. 
 
 For loss or injury in transit. 
 
 Shipper bound by the value 
 placed upon his goods when 
 shipped. 
 
 Where the goods are not mer- 
 chandise and not market- 
 able. 
 
 Goods shipped to be de- 
 livered on contract of sale. 
 
 Failure to deliver at time 
 
 specified or within reason- 
 able time — Reasonable de- 
 lay. 
 
 Failure to deliver and misde- 
 liver. 
 
 XL Actions Against Carriers op 
 
 Passengers. 
 
 716. Survival of actions for per- 
 
 sonal injuries. 
 
 717. When the injury does not re- 
 
 sult in death. 
 
 THE PLEADINGS. 
 
 718. Based upon what. 
 
 719. The answer or plea of the de- 
 
 fendant. 
 
 THE EVIDENCE, 
 
 730. What must be proven. 
 
 731. Presumption of negligence. 
 
 732. Contributory negligence. 
 
 damages. 
 
 723. General rules applicable. 
 
 734. Proximate or remote conse- 
 
 quences. 
 
 735. Actual, exemplary, punitive 
 
 or vindictive damages. 
 
 709 
 
§§ 690, 691. J CAEEIEES OF PASSENGERS. [PAET VI. 
 
 Actions against common carriers, for the purpose of our dis- 
 cussion, will be divided into (1) actions against the common 
 carriers of goods, and (2) against carriers of passengers. 
 
 I- 
 
 Actions Against Common Caeeiees of Goods. 
 
 § 690. The basis of the actions These actions are based 
 
 upon either breach of duty — that duty which the carrier owes 
 to the public as a quasi-pnhlic servant, as well as the duty he 
 owes to the owner of the goods or the shipper, and are there- 
 fore actions ex delicto; or upon the contract of affreightment) 
 either express or implied, and are therefore actions ex contractu. 
 
 § 691. As to what actions will lie. — At an early period in 
 the common law, actions against common carriers were based 
 almost entirely upon a breach of their duty to the public, and 
 were therefore actions ex delicto, or actions in tort. The theory 
 upon which this rested was that there was a public duty im- 
 posed upon carriers that was greater and of more impor- 
 tance than any private contract with their customers, and a 
 breach of that duty was more grave than the breach of a pri- 
 vate contract and sounded in tort, and could only be answered 
 for in an action ex delicto. In Bretherton v. Wood ^ we have 
 an expression from the English court which defines the early 
 common-law rules governing actions against carriers. The 
 court say: " This action is on the case against a common car- 
 rier, upon whom a duty is imposed by the custom of the realm, 
 or, in other words, by the common law, to carry and convey 
 their goods or express safely and securely so that by their neg- 
 ligence or default no injury or damage happen. A breach of 
 this duty is a breach of the law, and for this breach an action 
 lies, founded on the common law, which action wants not the 
 aid of a contract to support it." But the early English opinion 
 that seemed at least to hold to a strong preference for the action 
 on the case instead of the action of assumpsit has long since 
 been abandoned, and the action of assumpsit upon the contract, 
 express or implied, to safely carry and deliver the goods, has 
 come to be more generally used. 
 
 iSBrod. & Bing.(Eng.) 54; Coggs v. Bernard, 3 Ld. Raym. 909; Smith v. 
 Soward, 3 Pa. St. 343. 
 
 710 
 
CH. VI.] ACTIONS AGAINST 0AEEIEE8 OF GOODS. [§§ 692, 693. 
 
 It is said that the departure from the practice established in 
 England was first settled in the case of Dale v. Hall} where 
 it was held that " the permission to carry safely need not be 
 proved; the law raises it. The breach is very right that he 
 did not deliver them safely, but so negligently kept them that 
 they were spoiled." In Smith v. Seward - the court say : " It was 
 originally the practice to declare against the carrier only on 
 the custom of the realm ; but it has long been established that 
 the plaintiff may declare in case or assumpsit, at his election; 
 and it is usual to declare in the latter." 
 
 The right of action against the carrier may now be either 
 in tort for a breach of his public duty, or it may be in assump- 
 sit for a breach of the contract of carriage; either of these ac- 
 tions may be brought by the plaintiff, as he may choose. In 
 Express Co. v. Mc Veigh ' it was said : " When there is a public 
 employment, from which arises a common-law duty, an action 
 may be brought in tort, although the breach of duty assigned 
 is the doing or not doing something contrary to an agreement 
 made in the course of such employment, by the party on whom 
 such general duty is imposed." 
 
 §692. Even if there is a special contract. — And if 
 
 there is a special contract to carry, the option still remains to 
 the plaintiff, and he may bring his action either ex delicto or ex 
 contractu, whichever he chooses, for a breach of duty to carry 
 and safely deliver, or upon the special contract.* 
 
 § 693. Tlie advantages of the action ex delicto. — There 
 are no doubt some advantages to the plaintiff in bringing the 
 action ex delicto. As, for example, where there is uncertainty 
 as to the party defendants, the action ex delicto will not be de- 
 feated for non-joinder or misjoinder of defendants ; the plaintiff 
 can have his judgment against all of them, or any of them 
 against whom he has been able to make a case by his proofs. 
 Nor is it necessary to set out so fully and particularly the facts 
 and circumstances in the declaration as it would be if he de- 
 clared upon a contract.' And so in actions for delay in trans- 
 porting the goods, for negligence or misfeasance in delivering 
 
 ' 1 Wills. 281. * Niooll V. Railway Co., 89 Ga. 260; 
 
 23 Pa. St. 343. 0x1 ey v. Railway Co., 65 Mo. 630. 
 
 '20 Grat. (Va.) 264 sWeed v. Railway Co., 19 Wend. 
 
 534. 
 711 
 
§§ 694, 695.] CAEEiEES of passengers. [part vr. 
 
 them after transportation, or in an action to recover excessive 
 charges, the plaintiff may bring the action in tort, ex delicto, 
 or an action upon the contract implied or expressed ; as, for 
 example, for delay in transportation, the action may be upon 
 the implied contract to safely, and within a reasonable time, 
 transport and deliver the goods; or it may be upon a breach 
 of duty upon the part of the carrier by reason of his failure to 
 do so, which is considered, for the purpose of such action, a 
 public duty of the carrier. As we have seen, it is the duty of 
 the carrier to deliver the goods to the consignee, or to his 
 order, and for failure to do so, or for a misdelivery, he would 
 be liable. And in such case the action may be upon the im- 
 plied contract, or it may be for a breach of duty upon the part 
 of the carrier. The carrier is only entitled to reasonable com- 
 pensation; and this is so even though defendant in carrying 
 the goods is governed by the common-law rule only, because 
 demanding and receiving excessive charges, and especially 
 when demanded before he will consent to carry the goods, by 
 the common lavr, would render him guilty of a breach of duty 
 and liable in an action ex delicto, or, as said, at the option of 
 the plaintiff, to an action ex contractu as for money had and 
 received.' 
 
 § 694. For refusal to carry the goods. — While it is 
 
 the duty of a common carrier to receive and carry the goods 
 of all who present them for carriage, subject to the exceptions 
 heretofore noted, there is no implied contract to receive them, 
 and a refusal to do so would be a breach of duty on the part 
 of the carrier, and the action for such refusal would of neces- 
 sity be an action ex delicto; but if there had been a special 
 contract to receive and carry the goods, and the carrier re- 
 fused to carry them, then we need not say that an action would 
 lie for such carriage ex contracts for failure to comply with the 
 contract. 
 
 § G95. The parties. — The general rules applicable in deter- 
 mining who shall be parties to actions apply in actions against 
 common carriers of goods, and no different or other rules ap- 
 ply. The plaintiff must be one in whom is vested the legal 
 right to compensation or damages; the real party in interest 
 whose rights have been violated, or whose property has been 
 
 iDaws V. Peck, 8 T. R. 330. 
 
 713 
 
CH. VI.] ACTIONS AGAINST CAEEIEES OF GOODS. [§ G96. 
 
 lost or injured, or who is entitled to the performance of the 
 contract or duty in question in the particular case, or the as- 
 signee of such a party or his legal representatives. A leading 
 case upon this subject, which has been followed and cited very 
 generally, is the early English case of Daws v. Peck, where the 
 subject was very generally discussed by Lord Kenyon. In 
 rendering the opinion he said : " I cannot subscribe to one part 
 of the argument urged on behalf of the plaintiff, namely, that 
 the right of property on which this action is founded is to fluct- 
 uate according to the choice of the consignor or consignee, and 
 that consequently either of them may at his pleasure maintain 
 an action against the carrier for the non-delivery of the goods- 
 In my opinion the legal rights of the parties must be certain 
 and depend upon the contract between them, and cannot fluct- 
 uate according to the inclination of either. This question must 
 be governed by the consideration in whom the legal right was 
 vested; for he is the person who has sustained the loss, if any, 
 by the negligence of the carrier, and whoever has sustained 
 the loss is the proper party to call for compensation from the 
 person by whom he has been injured." 
 
 § 696. The consignee. — The legal presumption is that 
 
 the consignee is the owner of the goods, and for their loss or 
 injury is entitled to damages; but this presumption may be 
 overcome by proof of the real facts as to ownership. The 
 question that determines who is the proper party plaintiff is, 
 then: "Who is the owner of the goods, or upon whom is the 
 risk of the shipment; who is the injured party in case of loss 
 or damage to the property ? Such an owner or such a party 
 can sustain the action, and if the facts show that that one is 
 not the consignee, then some other one who sustained such like 
 relations to the goods should bring the action. The person 
 who makes the contract to ship the goods may not always be 
 the owner or the party in interest; his relation may be such 
 that he would not suffer loss or damage if the property was dis- 
 stroyed or injured, but if he does occupy such a relation, then he 
 would be properly a party plaintiff. This question was fully 
 treated in a leading case in Massachusetts,' where the court 
 
 iBlanohard et al. v. Page et al., 8 Gray (Mass.), 281; Congor v. Railway 
 Co., 17 Wis. 477. 
 
 713 
 
§ 690.] CAEEIEES OF PASSENGERS. [PAET VI. 
 
 discussed the leading cases upon the subject. The court say: 
 " There is no doubt that the party who was owner at the time, 
 or becomes owner of the goods afterwards, by assignment of 
 the shipper or otherwise, and who was consignee, indorsee of 
 the bill of lading, or lawful holder of a bill of lading in blank, 
 and who really sustains the damage, may maintain an action 
 against the ship-owner, not because he has any contract with 
 him for the carriage, but because the ship-owner has the goods 
 lawfully in his possession; it has become his duty to carry 
 them safely and deliver them to the consignee, subject only to 
 a lien for his freight; and, if the consignee is ready to dis- 
 charge that lien bj' a payment or tender of that freight, the 
 refusal of the carrier to deliver the goods to such consignee is 
 a breach of duty, and a wrong done him, for which an ac- 
 tion, either in tort for the conversion, or in assumpsit upon the 
 implied promise to perform such duty, may be maintained." 
 And in Scammon v. Wells, Fargo cfe Co.^ it was held that " a 
 carrier has the right to assume that the consignee is the owner 
 of goods consigned, and to settle with him therefor, if he has 
 been robbed thereof, in the absence of notice that the con- 
 signor was the owner of the property." The court of Penn- 
 sylvania^ held that the rule, that a consignee of goods deliv- 
 ered to a common carrier for transportation might sustain an 
 action for failure to transport or deliver them, would hardly 
 admit of a doubt, and say: "The doubt has rather been whether 
 the action could be maintained in the name of the consignor- 
 And though it has been ruled that it may be when the prop- 
 erty in the goods is proved to have remained in the consignor, 
 yet this is not at all in conflict with the right of the consignee 
 to sue when there is no such proof of ownership." 
 
 The l^ew York court has held that " the presumption of law 
 is that the consignee is the owner of the goods in the absence 
 of any evidence on the subject, and is the proper party to sue 
 for their injury or loss."' And in Illinois, in the case of Mer- 
 chants,^ etc. Co. V. Smithy it was held that " when goods are con- 
 
 1 84 Cal. 311. 323; Everett v. Saltus, 15 "Wend. 474; 
 
 2 Arbuckle V. Thompson, 87 Pa. St. Ang. on Car. 497, and cases oited; 
 
 170. Thompson v. Fargo, 49 N. Y. 188, and 
 
 ^Krulder v. Ellison et al., 47 N. Y. see cases cited in brief and opinion. 
 36, citing Sweet v. Barney, 23 N. J. ^76 111. 543; Pa. Co. v. Holderman, 
 
 335; Price v. Powell, 3 Comst. (N. Y.) 69 Ind. 18. 
 
 714 
 
OH. VI.J ACTIONS AaAINST CAEEIEE8 OF GOODS. [§§ 697, 698. 
 
 signed without reservation on the part of the consignor, the 
 legal presumption is that the consignee is the owner, and in 
 case of a loss an action against the carrier is properly brought 
 by the consignee." The legal presumption is, and it may be 
 said that this is the conclusion of the authorities generally, that 
 upon the delivery of the goods to a common carrier without 
 any reservation or notice to the contrary, the title to the goods 
 vests in the consignee, and the cafrier has a right to rely upon 
 this presumption. And so it was held that a carrier had a 
 right to settle with the consignee in a case where the property 
 was stolen or destroyed, and that the consignee could sustain 
 an action where property was lost by the carrier.' 
 
 § 697. One having a special property in the goods.— 
 
 The governing principle as to who can sustain the action is 
 based upon an interest in the property. That interest may be 
 ownership, or it may be a special interest. As, for example, an 
 undisclosed agent may sustain the action, or a factor, a broker, 
 a warehouseman, or person who has a special property in the 
 goods, and a recovery by such an one will be a bar to a recov- 
 ery by the real owner.^ But the real owner because of this 
 would not be deprived of the right to bring an action for dam- 
 age or injury to the goods while in the hands of such an 
 agent.' 
 
 §698. The consignor. — Where the goods are deliv- 
 ered to the carrier by the consignor, who has taken therefor a 
 bill of lading or a contract for shipment, an action can be sus- 
 tained by such consignor by reason of the contract, and it has 
 been held that where there is no express contract he can sus- 
 tain an action upon the implied contract for shipment. This 
 question was before the court in the case of Daws v. Peck^ and 
 in Blanchard v. Page^ and so decided. In Finn v. liailway Co!" 
 it was held that " a consignor who delivered goods to a car- 
 rier can maintain an action of contract against him for their 
 
 1 Dyer V. Railway Co., 51 Minn. 345, 343. See Blum v. The Caddo, Fed. 
 53 N. W. 714, and see cases cited in Cas. No. 1,573, 1 Woods, 64; Meigs v. 
 opinion of the court. Hayden, 86 Fed. 926. 
 
 2 Hutch, on Car., sec. 731, and see < 8 T. R. 330. 
 • oases cited; Denver, etc. R. Co. v. ^ 8 Gray, 281. 
 
 Frame, 6 Colo. 882. ^Wi Mass. 534 See authorities 
 
 ''N. J. etc. Co. V. Bank, 6 How. cited in the opinion. 
 (U. S.) 344; Green v. Clarke, 12 N. Y. 
 
 715 
 
§ 69S.] CAEEIEES OF PASSENGEES. [PAET VI. 
 
 loss if there is no relation between the carrier and the con- 
 signee other than that which results from the carrier's posses- 
 sion of the goods, and in such action can recover the full 
 value of the property, although it be the property of the con- 
 signee, if no action against the carrier has been commenced by 
 the consignee, and will hold the proceeds in trust for the con- 
 signee's indemnity." The court in discussing the question say : 
 "The liabilities of a common carrier of goods are various, and, 
 when not controlled by express contract, they spring frorh his 
 legal obligations, according to the relations he may sustain to 
 the parties, either as employers, or as owners of the property. 
 Prima facie his contract- of service is with the party from 
 whom, directly or indirectly, he receives the goods for car- 
 riage; that is, with the consignor. Ilis obligations to carry 
 safely, and deliver to the consignees, subjects him to liabilities 
 for any failure therein, which may be enforced by the consign- 
 ees or by the real owners of the property, by appropriate ac- 
 tions in their own names, independently of the original con- 
 tract by which the service was undertaken. Such remedies 
 are not exclusive of the right of the party sending the goods 
 to have his action upon the contract implied from the delivery 
 and receipt of them for carriage. . . . When carrying 
 goods from seller to purchaser, if there is nothing in the rela- 
 tions of the several parties except what arises from the fact 
 that the seller commits the goods to the carrier as the ordinary 
 and convenient mode of transmission and delivery, in execu- 
 tion of the order or agreement of sale, the employment is by 
 the seller, the contract of service is with him, and actions 
 based upon that contract may, if they must not necessarily, be 
 in the name of the consignor. If, however, the purchaser 
 designates the carrier, making him his agent to receive and 
 transmit the goods, or if the sale is complete before deliver}- 
 to the carrier, and the seller is made the agent of the pur- 
 chaser in respect to the forwarding of them, a different impli- 
 cation would arise, and the contract of service might be held 
 to be with the purchaser. This distinction, we think, must 
 determine whether the right of action upon the contract of 
 service, implied from the delivery and receipt of goods for car- 
 riage, is in the consignor or in the consignee." 
 
 The doctrine that the consignor may bring an action founded 
 
 T16 
 
CH. VI.J ACTIONS AGAINST CAEEIEES OF GOODS. [§§ 699, 700. 
 
 upon the contract of affreightment has been carried to the ex- 
 tent that such an action may be sustained even though the 
 plaintiff has no interest in the goods,' the action resting entirely 
 upon his contract with the carrier, and therefore must be an 
 action of assumpsit, and that in such an action he may recover 
 the full damages resulting from loss or injury to the property, 
 but that such recovery is in trust and for the benefit of the 
 owner of the goods.^ 
 
 § 699. The defendant.— It goes without saying that 
 
 the party defendant must be the carrier who has undertaken 
 the transportation of the goods, either upon an express or im- 
 plied contract of shipment, and not his servants or agents. 
 If either the servant or agent of a carrier should undertake the 
 transportation of goods, that is without the scope of the busi- 
 ness of the carrier, and without any authority from the carrier, 
 it has been held in such case that the agent or servant would 
 be liable.' An exception, however, has been recognized in the 
 case of a master of a ship, who it has been held may be re- 
 garded as a common carrier, and liable with the owner of the 
 vessel for safe transportation of the property.* 
 
 THE PLEADINGS. 
 
 §700. Pleadings follow general rules. — The pleadings in 
 
 actions against carriers may be said to follow the general rules 
 
 upon this subject. As we have seen, the action may be either 
 
 upon the contract in an action ex contractu or for a breach of 
 
 duty in an action ex delicto. If the action is upon the contract, 
 
 the declaration or petition, as the case may be, should set out 
 
 a contract, alleging the breach and the damages as is usual in 
 
 such cases. If the action is ex delicto, the relation of the par- 
 
 • 
 
 'Hutch, on Car., sec. 724, and cases owners of vessels, who undertake to 
 cited; American Roofing Co. V. Mem- cai-ry goods for hire, are liable as 
 phis, etc. Co., 5 Ohio N. P. 146; common carriers, whether the trans- 
 Thompson V. Railroad Co., 11 Tex. portation be from port to port within 
 App. 145. the state, or beyond the sea, at home 
 
 ^ Hutch, on Car., sec. 730, and cases or abroad; and they are answerable, 
 
 cited. as well by the marine law as by the 
 
 'Elkins V. Railway Co., 33 N. H. common law of England, for all 
 
 375; Citizens' Bank V. Steamboat Co., losses, not arising from inevitable 
 
 2 Story, 17. accidents, or such as could not be 
 
 * Elliott V. Russell & Lewis, 10 foreseen or prevented." 
 Johns. 1, held that "masters and 
 
 717 
 
§§ 701-704.] OAEEIEES OF PASSENGERS. [PAET VI. 
 
 ties, the duty of the carrier, his failure to perform that duty, 
 and the resulting damages should be clearly and logically set 
 forth. 
 
 § 701. Defenses.^ And so it may be said of the de- 
 fenses, that there is nothing unusual in the pleadings on the 
 part of the defendant. It is only necessary to know what would 
 constitute a defense, and when and how it can be pleaded. 
 There are matters of special defense which must be set forth 
 specially, for the plaintiff is entitled to notice of such defenses; 
 but all this is regulated by the rules applicable to pleading, and 
 there are no rules peculiar to actions against common carriers. 
 
 THE PEOOFS. 
 
 § 702. What proofs should be adduced. — "We may say of 
 
 the rules governino: the evidence in such actions as we have 
 said of the pleadings, that there are no rules peculiar to 
 actions against carriers. The material allegations of the peti- 
 tion or declaration must be proved; in other words, the case 
 alleged must be substantiated. Whether the action be ex con- 
 tractu or ex delicto it will be necessary to prove a delivery of 
 the goods by the shipper to the carrier, and an undertaking on 
 his part to carry them as alleged in the declaration or petition, 
 a failure to perform such undertaking on his part, and the loss 
 or injury by reason of such, failure by way of damages. 
 
 § 703. Negligence. — The loss or injury must be shown to 
 be the result of the negligence alleged, and in such cases the 
 owner or shipper is entitled to the benefit of the presumptions 
 of negligence that usually obtain in such cases; as, for ex- 
 ample, where it is shown that the goods were delivered for 
 shipment and the carrier undertook to transport them, that 
 they liave not been received after a reasonable time and are 
 not accounted for; or if the goods are received in a damaged 
 condition, having been delivered to the carrier in good condi- 
 tion, the presumption is that the loss or injury resulted from 
 the negligence of the carrier. 
 
 § 704. Defendant's proofs. — The carrier by way of defense 
 may show that the loss or injury was caused by the act of God 
 or the public enemy, or any of the causes which we have seen 
 will excuse him from liability, and in such case it will be pre- 
 sumed that his negligence or acts did not contribute to the loss, 
 
 718 
 
CH. VI.] ACTIONS AGAINST CAEEIEES OF GOODS. [g§ 70."), 706. 
 
 and the burden of showing that the damage was not the result 
 alone of one of the causes which excuses the carrier, but that the 
 carrier's acts contributed to the result, is upon the plaintiff. In 
 other words, the presumption, in the absence of proof, in such 
 cases, is that the carrier performed his duty; that the loss or 
 injury was occasioned by an act of God, or was the result of 
 such acts as excuse his liability without his negligence, and 
 the burden of showing that the loss was not alone from such 
 causes, but that the negligence of the carrier contributed to 
 the loss, is upon the plaintiff. Several of the states have, 
 however, held the rule to be otherwise: that the carrier must 
 not only show that the damage resulted from the act of God, 
 or from some of the causes which excuse him, but must fur- 
 ther show that his acts in no way contributed to the loss. 
 This, however, cannot be said to be the weight of authority.^ 
 
 DAMAGES. 
 
 § 705. Of what they generally consist. — Damages are usu- 
 ally but compensation for the injury or loss to the plaintiff 
 resulting from a breach of the contract of shipment, or from 
 failure to perform a duty which the carrier is legally bound to 
 perform in the matter of the shipment of the goods. They con- 
 sist of the amount of money that will compensate the plaintiff 
 for his loss, and this amount must be shown by the circum- 
 stances in each particular case. As, for example, in a case 
 where the carrier refuses to receive and transport the goods, 
 for loss or injury to the goods while in transit, for failure to 
 properly deliver the goods to the consignee at the place of de- 
 livery, for delivery of the goods to the wrong person, for de- 
 lay in the shipment, and such like obligations as rest upon the 
 carrier. From the mere statement of these obligations it will 
 be seen that the measure of damages is very different in the 
 different classes mentioned. 
 
 § 706. Actual, exemplary, punitive or vindictive dam- 
 ages Damages are usually said to be eitheractual, exemplary, 
 
 punitive or vindictive, but there is some diversity in the opin- 
 ions of the courts upon the question of the kind of damages 
 that may be recovered against carriers. Some very strong 
 reasons are advanced by a large number of the supreme courts 
 
 1 See Hutch, on Car., sees. 665, 667, and notes. 
 719 
 
§ 706. J CAEEIEES OF PASSENOEES. [PAET VI. 
 
 of the states and of the United States, urging that exemplary, 
 punitive, and even vindictive damages may be recovered in 
 cases where the proof shows a wanton or malicious invasion of 
 the plaintiff's rights, or where there has been oppression or vin- 
 dictiveness on the part of the defendant, while others of the 
 courts hold that only actual or compensatory damages can be 
 recovered, yielding, however, this much: that in case of wan- 
 tonness or maliciousness, or oppressive and vindictive action on 
 the part of the defendant carrier, the compensation should be 
 liberal and sufficient to cover the actual injury because of such 
 wantonness, maliciousness or vindictiveness. The supreme court 
 of Kentucky have held that juries might give what is denom- 
 inated " smart money " in certain, aggravated cases of tort. 
 The court say : " If trespassers were bound to pay in damages no 
 more than the exact value of the property forcibly taken and con- 
 verted by them, there would be no motive created by the oper- 
 ation of law to induce them to desist and abstain from invad- 
 ing the rights of others. To furnish such a motive 'smart 
 monej' ' is allowed." ^ The Illinois court has held to this doc- 
 trine in cases where the acts are not indictable, and " where 
 the trespass is wanton, Avilful or malicious, or accompanied 
 with such acts of indignity as show reckless disregard of the 
 rights of others," basing their opinion upon the grouud of pun- 
 ishment for the wrong and to deter others.^ Mr. Justice Grier, 
 for the supreme court of the United States, in Day v. Wood- 
 wortli^ said : " It is a well established principle of the common 
 law, that in actions of trespass and all actions on the case for 
 torts, a jury maj^ inflict what are called exemplary, punitive, or 
 vindictive damages upon a defendant, having in view the enor- 
 mity of his offense rather than the measure of compensation 
 to the plaintiff. We are aware that the propriety of this doc- 
 trine has been questioned by some writers; butif repeated judi- 
 cial decisions for more than a century are to be received as the 
 best exposition of what the law is, the question will not admit 
 of argument. By the common as well as by statute law, men 
 are often punished for aggravated misconduct or lawless acts 
 by means of a civil action, and the damages inflicted by way 
 of penalty or punishment given to the party injured. In many 
 
 1 Tyson v. Ewing, 3 J. J. Marsh. 2 Cutler v. Smith, 57 111. 253. 
 (Ky.) 186. 3 13 How. 363-371. 
 
 720 
 
CH. TI.] ACTIONS AGAINST CAEEIEES OF GOODS. [§ 706. 
 
 civil actions, such as libel, slander, seduction, etc., the wrong 
 done to the plaintiff is incapable of being measured by a money 
 standard; and the damages assessed depend on the circum- 
 stances, showing the degree of moral turpitude or atrocity of 
 the defendant's conduct, and may properly be termed exemplary 
 or vindictive rather than compensatory. In actions of trespass, 
 where the injury has been wanton and malicious, or gross and 
 outrageous, courts permit juries to add to the measured com- 
 pensation of the plaintiff which he would have been entitled to 
 recover had the injury been inflicted without design or inten- 
 tion, something further by way of punishment or example, 
 which has sometimes been called 'smart money.' This has 
 been always left to the discretion of the jury, as the degree of 
 punishment to be thus inflicted must depend on the peculiar 
 circumstances of each case." 
 
 Mr. Justice Davis, in Milwaukee v. Arms^ discussing this 
 question, used this language: "It is undoubtedly true that the 
 allovcance of anything more than an adequate pecuniary in- 
 demnity for a wrong suffered is a great departure from the 
 principle on which damages in civil suits are awarded. But 
 although, as a general rule, the plaintiff recovers merely such 
 indemnity, yet the doctrine is too well settled now to be shaken, 
 that exemplary damages may in certain cases be assessed. As 
 the question of intention is always material in an action of 
 
 tort, and as the circumstances which characterize the transac- 
 
 a. 
 tion are, therefore, proper to be weighed by the jury in fixing 
 
 the compensation of the injured party, it may well be consid- 
 ered whether the doctrine of exemplary damages cannot be 
 reconciled with the idea that compensation alone is the true 
 measure of redress. But jurists have chosen to place this doc- 
 trine on the ground, not that the sufferer is to be recompensed, 
 but that the offender is to be punished ; and, although some 
 text-writers and courts have questioned its soundness, it has 
 been accepted as the general rule in England and in most of 
 the states of this country. ... In ascertaining its extent, 
 the jury may consider all the facts which relate to the wrong- 
 ful act of the defendant, and its consequences to the plaintiff; 
 but they are not at liberty to go farther unless it was done 
 
 '91 U. S. (1 Otto), 489-493; Philadelphia, etc. Ry. Co. v. Quigley, 31 
 How. 213. 
 
 46 731 
 
§ 707.] CAEEIEES OF PASSENGERS. [PAET VI. 
 
 wilfully, or was the result of that reckless indifference to the 
 rights of others which is equivalent to an intentional violation 
 of them. In that case the jury are authorized, for the sake of 
 public example, to give such additional damages as the cir- 
 cumstances require. The tort is aggravated by the evil mo- 
 tive, and on this rests the rule of exemplary damages." 
 
 While this doctrine seems to be held with more or less 
 emphasis in very many states of the Union, some of the courts 
 have, however, as we have said, modified the ruling by hold- 
 ing that a very liberal allowance of compensatory damages 
 may be allowed to the injured plaintiff. 
 
 § 707. Exemplary damages confined to liberal compensa- 
 tory or actnal damages. — Among the authorities who hold 
 to the doctrine that a liberal allowance of compensatory dam- 
 ages to the injured plaintiff should be allowed in cases where 
 exemplary damages would appear to be proper, is to be found 
 Professor Greenleaf, who urges this to be the correct doctrine, 
 lie says : ^ "It is frequently said that in actions ex delicto evi- 
 dence is admissible in aggravation or in mitigation of dam- 
 ages. But this, it is conceived, means nothing more than that 
 evidence is admissible of facts and circumstances which go in 
 aggravation or in mitigation of the injury itself. The circum- 
 stances, thus proved, ought to be those only which belong to 
 the act complained of. The plaintiff is not justly entitled to 
 receive compensation bej'ond the extent of his injury, nor 
 ought the defendant to pay to the plaintiff more than the 
 plaintiff' is entitled to receive." One of the best considered 
 cases upon the subject of damages is that of Fay v. Parker.- 
 In that case Mr. Justice Foster has considered every leading 
 American and English case upon the subject up to the time of 
 the decision. His argument is exhaustive and his reasoning 
 very strong. In the course of the opinion he says: "I venture 
 to say that no case will be found in ancient, nor indeed in 
 modern, reports in which a judge explicitly told a jury that they 
 might, in an action for an assault and battery, give the plaintiff 
 four damages, viz. : 1. For loss of property, as for injury to his 
 apparel, loss of labor and time, expenses of surgical assistance, 
 nursing, etc.; 2. For bodily pain; 3. For mental suffering; 
 
 13 Greenl., sec. 266; and see cases 253 n. H. 342; 1 Sutherland, Dam- 
 cited, ages, 730. 
 
 733 
 
OH. VI.J ACTIONS AGAINST OAEEIEES OF GOODS. [§ 707. 
 
 and 4. For punishment of the defendant's crime., But a crit- 
 ical examination of the cases will show, as I believe, that this 
 fourth item is, in fact, comprehended in the third, but has 
 grown into and become a separate and additional item by in- 
 considerate, if not intemperate and angry, instructions given 
 to juries when the court was too much incensed by the exhibi- 
 tion of wanton malice, revenge, insult and oppression to weigh 
 with coolness and deliberation the meaning of language pre- 
 viously used by other judges; instructions prompted by im- 
 pulses of righteous indignation, swift to administer supposed 
 justice to a guilty defendant, but expressed with too little cau- 
 tion and without pausing to reflect that the court was thus en- 
 couraging the jury to give the plaintiff more than he was 
 entitled to, — to give him, in fact, as damages the avails of a 
 fine imposed for the vindication of the criminal law, and for 
 the sake of public example." 
 
 Chief Justice Gushing, in Bixby v. Dunlap,^ quotes with ap- 
 proval the case of Fay v. Parher. The supreme court of Michi- 
 gan, while they have recognized exemplary damages and 
 allowed such damages to be recovered in the redress of private 
 injuries, have taken occasion to say in Watson v. Watson ^ that 
 the increased damages resulting from circumstances of aggra- 
 vation are sometimes spoken of as exemplary, as in a certain 
 sense they are, but in a less misleading and more accurate sense 
 they are compensatory. And this judgment has been followed 
 in several cases decided in that court. As in Sorijops v. Riley^ 
 it was held that actual damages for injured feelings may be 
 increased or aggravated by the defendant's vindictive feelings, 
 or the degree of malice, recklessness, gross negligence, or care- 
 lessness on his part. But iij Long v. Printing Co^ the court 
 say: "Damages for injury to feelings, shame, mortification, 
 mental anxiety, insulted honor and indignation have always, 
 in this state at least, been regarded as actual damages and not 
 as exemplary, punitive, or vindictive damages." In an action 
 against carriers for the conversion of a quantity of flowers in- 
 
 ^ 56 N. H. 436. damages cannot be allowed where 
 
 2 53 Mich. 168. the damages are capable of accurate 
 
 '38 Mich. 10; Welch v. Ware, 32 pecuniary estimation. Ten Hopen v. 
 
 Mich. 73; Dalman v. Konning, 54 Walker, 96 Mich. 236. 
 
 Mich. 320. Held, in Durfee v. New- < i07 Mich. 207; Ford v. Cheever, 
 
 kirk, 83 Mich. 523, that exemplary 105 Mioh. 679. 
 
 733 
 
§ 707.] CAEEIEES OF PASSENGEES. [PAET VI. 
 
 trusted to them for delivery to plaintiff's customers in New 
 York, which they appropriated to their own use, sending them 
 to their own customers and to supply their own contracts, 
 knowing that they had no right to do so, the court held that 
 it was not error to charge the jury that " if they can say from 
 the evidence that the defendants dishonestly overrode the 
 rights of the plaintiff for their own purposes, knowing that the 
 goods in question were his and not theirs, and disregarding his 
 rights took the goods for their own use, punitive damages may 
 be awarded."^ 
 
 It appears, however, that the disagreement of authorities is 
 more as to the name of the damages that all agree may be al- 
 lowed. ISTone of the courts or authors will claim but that 
 under certain circumstances proved in a case, exemplary dam- 
 ages may be properly recovered, though some of them would 
 insist that the exemplary damages are allowed and recoverable 
 only as actual damages, or, as they are sometimes called, com- 
 pensatory damages. 
 
 j\Ir. Justice Foster, in Fay v. ParTier^ already cited, in the 
 course of his opinion says : " Call them what you may, com- 
 pensatory in fact or punitory in their operation, if the same 
 damages are awarded but once the distinction is merely verbal, 
 and we may well doubt whether the learned chief justice, in 
 recommending the award of damages with a liberal hand, in- 
 tended anything more or other than we mean when we tell 
 juries to give the plaintiff what the defendant ought to pay 
 and the plaintiff ought to receive in view of the wrong and 
 suffering inflicted by the malice, insult and indignity exhib- 
 ited by the circumstances of the case." 
 
 The supreme court of Michigan, in Ross v. Leggett^ say: "It 
 is of little consequence by what name the damages given are 
 called, provided the case is one involving that class of injuries 
 for which the plaintiff is entitled to recover; they may be 
 called " exemplary," '• punitory," " vindictive," " compensa- 
 tory," or added damages. The important question always is 
 in every case. Was the character of the wrong suffered or in- 
 jury sustained such as may be lawfully Atoned for or compen- 
 sated in money ? " 
 
 1 Downing v. Outerbridge, 25 C. C. '-53 N. H. 342. 
 A. 244, 70 Fed. 931. 3 61 Mich. 445-453. 
 
 724 
 
OH. VI.J ACTIONS AGAINST CAEEIEES OF GOODS. [§ 708. 
 
 § 708. Liability of principal or master for acts of 
 
 agents or servants. — It is well understood that carrier cor- 
 porations, like other corporations, act entirely through their 
 servants or agents. The liability of such a carrier, as well as 
 all who transact business by agents or servants, for damages 
 must depend upon the authority of the agent or servant who 
 caused the injury. It should appear that they were acting 
 within the scope of their authority, express or implied, at the 
 time they were guilty of the breach of duty. In determining 
 whether this relation existed it is necessary to show that the 
 agent or servant was engaged in carrying out the object of his 
 employment; that he was working, or acting, or operating 
 within the scope of his authority, not that he was authorized 
 to commit the specific tort, but that the act complained of was 
 incident to the performance of the duty that his master or 
 principal had employed him to perform; that while in the 
 service of the master or principal, and while acting for him, 
 and in the course of his employment, the tort complained of was 
 committed. The true rule would seem to be that the master 
 is only responsible so long as the servant can be said to be 
 doing the act he was employed to do, and while in the course 
 of his employment as servant he was guilty of the negligence 
 complained of.^ In Downey v. Bailway Go? the court say: 
 " Where the wrong has been done under circumstances indi- 
 cating wantonness, violence and oppression upon the part of 
 the wrong-doer, exemplary damages are recoverable. But 
 such damages are not recoverable against a railroad company 
 unless the injury is the result of the authorized or ratified mis- 
 conduct of its servants. There are some cases which hold that 
 when a person is injured by gross negligence on the part of 
 the railway company he may recover exemplary damages ; but 
 the better and more reasonable doctrine seems to be that the 
 railway company is not to be held liable in exemplary dam- 
 ages for injuries caused by the negligence of its servants, un- 
 less it be shown that the servant's act was wilful, and was 
 
 iQuarman v. Burnett, 6 M. & W. Railway Co., 33 W. Va. 433; Talbott 
 599; Joslin v. Grand Rapids, etc. R. v. Railway Co., 42 W. Va. 560; Pat- 
 Co., 50 Mich. 516; Sleath v. Wilson, terson on Railway Accident Law, 
 9 C. & P. 607; Mech. on Agency, sec. sees. 393, 471; Cleghorn v. N. Y. etc. 
 737. R. Co., 56 N. Y. 44. 
 
 ^38 W. Va. 732, 743; RicUetts v. 
 
 735 
 
§ 709.] OAEEIEES OF PASSENGERS. [PAET VI. 
 
 either authorized or ratified by the company; but such author- 
 ization or ratification can be evidenced either by an express 
 order to do the act, or an express approval of its commission, 
 or by an antecedent retention of a servant of knovrn incompe- 
 tency, or by a subsequent retention or promotion of the neg- 
 ligent servant." 
 
 § 709. Damages for refusal to receive and transport. — 
 The action for refusal to receive the goods and transport them 
 cannot depend upon a contract, for none exists; it is based 
 entirely upon the duty of the carrier to receive and carry the 
 property offered. As we have seen, there may be a good and 
 legal reason for such refusal on the part of the carrier, as, for 
 example, that the goods were not fit for shipment. But if 
 there is no valid legal reason for the refusal, then the measure 
 of damages, in case the goods are articles of merchandise and 
 shipped for the market, has been held to be such an amount as 
 would place the plaintiff in the position he would occupy had 
 the goods been received, carried and delivered at their destina- 
 tion; that is to say, the difference in the value of the goods at 
 the time they would have to be delivered, if transported, at 
 the place of destination, and their value at the place of pro- 
 posed shipment, with interest from the time they should have 
 arrived, less the cost of transportation.^ It must be remem- 
 bered, however, that it is the duty of the injured party not to 
 magnify or increase the damages, but rather to make them as 
 small as he reasonably can under the circumstances.^ And so 
 in this case it would be the shipper's duty to ship the goods if 
 he could do so by some other route ; and in such case the meas- 
 ure of damages would be the amount of expense he was com- 
 pelled to pay in carrying the goods and delivering them to the 
 other carrier, the excess freight, if any, he was obliged to pay, 
 and, if delayed because of the refusal, whatever loss was in- 
 
 1 Ward V. Elkins, 34 Mich. 439, and 539. When the goods are perishable, 
 
 see cases cited in briefs of counsel; the shipper must not remain inactive, 
 
 Harvey v. Railway Co., 124 Mass. but must adopt vyhatever means are 
 
 421; Galena, etc. R. Co. v. Rae, 18111. athand to forward the goods at once; 
 
 488; Cobb v. Railway Co., 38 Iowa, nor can he send the goods in different 
 
 601. parcels and claim damages for the 
 
 ^ Houston, etc. Co. v. Smith, 63 Tex. additional freight charges. Ward, 
 
 323, 23 Am. & Eng. Cases, 431 ; Pitts- etc. Co. v. Elkins, supra; Grund v. 
 
 burg, etc. Co. v. Morton et al., 61 Ind. Pendergast, .58 Barb. 216. 
 
 726 
 
CH. VI.J ACTIONS AGAINST OAREIEES OF GOODS. [§§ 110, 711. 
 
 curred on that account. But if the price demanded by the 
 other carrier was reasonable, but would have rendered the ship- 
 ment unprofitable, the shipper would not be justified in pro- 
 curing such shipment, for in such case he could procure like 
 goods in the terminal market for a less amount, and therefore 
 there would be no damage. 
 
 § 710. For loss or injury in transit. — If the goods are lost 
 or injured in transit, we have but to apply the principle dis- 
 cussed in the last section. The damages would be as there 
 stated : such an amount as would place the principal in the 
 position he would occupy had the goods been delivered at the 
 place of their destination ; and where the carrier received goods 
 for transportation and failed to deliver them, it was held that 
 the owner was entitled to the market value of the goods at the 
 time and place they should have been delivered,' with interest 
 from that time. In Cutting v. Hailway Co? the supreme court 
 of Massachusetts say : " As a general rule the appropriate com- 
 pensation for the breach of a contract to deliver goods is their 
 market value in money at the time and place at which they 
 should have been delivered, with interest thereon, and it is ad- 
 mitted that such is the rule in an action against a carrier if the 
 goods are never delivered." 
 
 The measure of, damages, however, for goods delivered in a 
 damaged condition is held to be the difference between the 
 value of the goods in their damaged state and their value at 
 the place of destination had they been delivered in good order.' 
 But where a machine was so damaged by the carrier's negli- 
 gence that the cost of repairing it would equal the cost of a 
 new one, it was held that the plaintiff could recover the value 
 of the machine, the freight paid and interest from the time 
 when it should have been delivered.'' 
 
 § 711. Shipper bound by value placed upon his goods 
 
 when shipped But where a shipper places a value upon his 
 
 goods and knowingly enters into a contract for their shipment 
 at a price based upon such valuation, he is bound by the con- 
 
 1 Spring V. Haskell, 4 Allen, 112. Co. v. Berohfield, 12 Tex. Civ. App. 
 
 '■ 13 Allen (Mass.), 381. 145. 
 
 ^ Silverman v. Railway Co., 51 La. ■• Thomas, etc. Co. v. Railway Co., 
 Ann. 1783, 26 So. 447; Heil v. Rail- 62 Wis. 643. 
 way Co., 16 Mo. App. 363; Railway 
 
 727 
 
§ 712.] OAEEIEES OF PASSENGERS. [pAET VI. 
 
 tract. Such a contract does not excuse the carrier from the 
 exercise of reasonable care, but the shipper cannot have his 
 property transported at a low rate because of such valuation, 
 and dn case of loss compel the carrier to pay more than the 
 value stated in the contract.' 
 
 § 712. Where the goods are not nierchaudise and not mar- 
 ketable. — Goods that have no market value, but are espe- 
 cially useful and valuable to the shipper, are often shipped and 
 lost or damaged in transit. The damages in such case cannot 
 be governed by the market value of the goods, because they 
 have no such value, but the recoverable damages must depend 
 upon the value of the goods to the owner; but in fixing the 
 value the owner will not be permitted to base his estimate upon 
 a partial or capricious price, but an amount must be fixed that 
 under all the circumstances would be considered reasonable 
 and just.'- 
 
 Where goods were damaged in transit which had no market 
 value, it was held that the measure of damages would be the 
 cost of reproducing or replacing them, and if they could not 
 be reproduced or replaced, then the value of the property to 
 the owner.^ Where the property shipped was a family por- 
 trait, it was held by the Massachusetts court that the damages 
 for its loss would be the value to the owner and not the mar- 
 ket value. The court say: "The general rule of damages in 
 trover, and in contract for not delivering goods, undoubtedly 
 is the fair ;narket value of the goods. But this rule does not 
 apply when the article sued for is not marketable property. 
 To instruct the jury that the measure of damages for the con- 
 version or loss of a family portrait is its market value would 
 be merely delusive. It cannot with any propriety be said to 
 have any market value. The just rule of damages is the actual 
 value to him who owns it, taking into account its cost, the 
 practicability and expense of replacing it, and such other con- 
 siderations as in the particular case affect its value to the 
 owner." ^ Where the property shipped consisted of stereo- 
 
 1 Chicago, etc. R. Co. v. Miller, 79 Colo. 883, 18 Am. & Eng. R. Cases, 
 111. A pp. 47i ; Hart v. Railway Co., 112 637. 
 
 U. S. 831, 18 Am. & Eng. Ry. Cases, 3 Houston, etc. R. Co. v. Ney, 58 S. 
 
 604; Railway Co. v. Miller, 16 Neb. W. 48. 
 
 661, 18 Am. & Eng. R. Cases, .545. * Green v. Railway Co., 128 Mass. 
 
 2 Denver, etc. R. Co. v. Frame, 6 331, 35 Am. Rep. 870. 
 
 738 
 
CH. VI.] , ACTIONS AGAINST OAEEIEES OF GOODS. [§§ 713, 714. 
 
 typed plates to be used by the plaintiffs in their special busi- 
 ness and had no market value, it was said by the Massachu- 
 setts court, " such things cannot, with any propriety, be said to 
 have a market value, and the actual value to him who owns 
 and uses them is the just rule of damages in- an action against 
 him who converts them to his own use."^ 
 
 § 713. Goods shipped to be delivered on contract of 
 
 sale. — In considering this question, the general rule goveroing 
 damages must be kept in mind. It will be remembered that as 
 a general rule the damages in all cases must be proximate and 
 the natural consequences of the breach of duty or contract al- 
 leged,^ the maxim being " causa proxima non reinota spectatur; " 
 but in the class of cases under consideration the courts have 
 generally held that where goods have been transported by the 
 carrier to fill a contract of sale between the owner and the 
 consignee, the carrier having notice of that fact at the time of 
 receiving the goods and entering upon the shipment of them, 
 the goods being lost under circumstances rendering the carrier 
 liable, and by reason of the loss and consequent delay the 
 owner is rendered unable to fulfill his contract, the measure of 
 damages in an action against the carrier is governed by the 
 loss to the owner by reason of the failure to deliver the goods 
 upon his contract of sale, or the contract price of the goods. 
 
 § 714. Failure to deliver at time specified or within 
 
 reasonable time — Reasonable delay. — As we have seen, it 
 is the duty of the carrier to transport and deliver the goods 
 shipped to the consignee within the time stipulated, and if 
 there is no stipulation as to the time of delivery, then within 
 a reasonable time; if the goods shipped are intended for the 
 market, for a breach of the contract of shipment, or a breach 
 of duty upon the part of the carrier, the rule of damages 
 would be the difference between the value of the goods at 
 the time and place they should have been delivered and 
 their value when they are in fact delivered, computed at the 
 place of destination, with interest, less freight unpaid.' In 
 
 iStickney et al. v. Allen, 10 Gray (N. Y.) 569; Railway Co. v. Cobb, 64 
 
 (Mass.), 353. III. 143. 
 
 2 Hadley v. Baxendale, 9 Exch. 341 ; 3 Railway Co. v. Mudford, 48 Ark. 
 
 Gait V. Archer, 7 Grat. (Va.) 807; 503; Peet v. Railway Co., 33 Wis. 594, 
 
 Cobb V. Railway Co., 38 Iowa, 601; 91 Am. Dec. 446; Devereux v. Buck- 
 
 Medbury v. Railway Co., 26 Barb, ley, 34 Ohio St. 16, 33 Am. Rep. 342; 
 
 739 
 
§ 71-i.J CAEIilERS OF PASSENGERS. [PAET VI. 
 
 Cnttimj V. RaUioay Co} Mr. Justice Grey, in rendering the 
 opinion, said: "The true rule and measure of damages, in our 
 opinion, whenever by reason of inexcusable delay of the carrier 
 the goods are not delivered until after they have diminished 
 in market value, is the amount of the diminution. This al- 
 lows to the person injured the value, as exactly as it can be 
 estimated in money, of that of which he has been finally de- 
 prived by the wrongful act of the defendant; and is the most 
 simple and just rule as well as the easiest to be applied; for it 
 depends on the general market value of the goods, and involves. 
 no contingent or speculative profits, and no consideration of 
 any other contracts made or omitted to be made by the plaint- 
 iff in view of his contract with the defendant. To refer to 
 such other contracts, or the profits which might have resulted 
 from them, not within the knowledge or contemplation of the- 
 defendant, would be to hold him liable for the consequences, 
 or allow him the benefit, not of his own contract with the 
 plaintiff, but of dealing between the latter and third persons 
 with which the defendant had nothing to do. . . . The 
 distinction between loss of profits and diminution in the mar- 
 ket value of the goods was well stated in the first of these 
 cases by Mr. Justice Bj'^les, who said: ' Profits include the in- 
 creased value arising from the purpose to which the plaintiff 
 intended to apply the goods; whereas diminution in exchange- 
 able value is only something subtracted from the inherent 
 value of the articles themselves.' ' It is admitted that deterio- 
 ration in quality is to be taken into account in estimating the 
 damage the plaintiff has sustained ; it is admitted also that 
 loss or diminution in the quantity is to be taken into account ; 
 and I do not see why a loss in the exchangeable value of the 
 goods should not also be taken into account.' " 
 
 If the goods are not intended for the market, as, for exam- 
 ple, household goods or articles that are shipped for the special 
 use of the consignee, the damages would be measured by the 
 
 Sisson V. Cleveland, etc. Co., 14Mioh. Harding, 7 Cush. f)16; Waite v. GiU 
 
 489; In re Peterson V. Case (C. C), 21 bert, 10 Cush. 177; Le Peintur v. 
 
 Fed. 885; Railway Co. v. Johnson, So Southeastern Ry. Co., 3 Law Time& 
 
 Ga. 49T; Railway Co. v. Lockhart, 71 (N. S.), 170; Gee v. Lancashire & Y. 
 
 111. G'2T. Ry. Co., 6 H. & N. 211, 9 C. B. (N. S.). 
 
 195 Mass. (13 Allen), 381; Fox v. 646. 
 
 730 
 
CII. YI.] ACTIONS AGAINST CAEEIEES OF PASSENGEES. [§§715-16. 
 
 value of the use of the goods during the delay, with interest 
 from the time they should have been delivered.' 
 
 § 715. Failure to deliver and misdelivery. — ^If the carrier 
 after a reasonable time fails to deliver the goods to the con- 
 signee, he will be liable for their value at the place of desti- 
 nation, with the freight paid and interest from the time the 
 goods should have been delivered, if they were intended for 
 the market, or were marketable goods; and the same rule 
 will generally obtain in cases of misdelivery. Cases are often 
 peculiar in their facts, and it would be impossible to lay down 
 a rule of damages that would govern every case. As, for 
 example, where goods were misdelivered and the consignee re- 
 ceived the goods immediately from the party to whom they 
 were wrongfully delivered, it was held that, while the plaintiff 
 could recover, his recovery could only be for nominal damages.^ 
 
 II. 
 
 Actions Against Caeeiees op Passengees. 
 
 § 716. Survival of actions for personal injuries.— At the 
 
 common law actions for personal injuries died with the person 
 injured, the maxim being " actio personalis moritur cum per- 
 sona." This rule of law has been modified by statutes in Eng- 
 land and in the several states of the United States, so that at 
 the present time the personal representatives of the deceased 
 may bring an action for the injury and death in all cases where, 
 if death had not resulted, the injured person could have sus- 
 tained an action for the injury; the action being for the ben- 
 efit of the near relatives of the deceased, as the wife, if living, 
 or the children or parents, or those dependent upon the de- 
 ceased; and these statutes apply to all cases resulting from in- 
 jury whether by common carriers or other persons.' 
 
 ' Brown v. Adams, 3 Tex. App. Civ. be used in business, thereby causing 
 
 Cases, sec. 390; Marsh v. Railway Co., loss of profits and use, is discussed. 
 
 6 Am. & Eng. Ry. Cases, 859; Rail- 2 Eosenfield v. Express Co., 1 Wood 
 
 way Co. V. Frame, 6 Colo. 382; Inter- (U. 8.), 131. 
 
 national, etc. Co. v. Nicholson, 61 3 By 4 Edw. HI, ch. 7, the rule was 
 
 Tex. 550. And see Vicksburg, etc. modified so as to give an action in 
 
 Co. V. Ragsdale, 46 Miss. 458, where favor of a personal representative for 
 
 the rule of damages in case of delay injuries to personalty; by 3 and 4 
 
 in transporting articles intended to Will. IV., ch. 43, against personal rep- 
 
 731 
 
§§ 717, 718.] CAEEIEES OF PASSENGERS. [PAET VI. 
 
 § 717. When the injury does not result in death. — Where 
 death does not result from the injury, the action can be sus- 
 tained by any person damaged by reason of the injury result- 
 ing from the negligence of the defendant; that is to say, the 
 injured person himself, if capable of bringing an action, may 
 recover against the carrier; or a parent for an injury to his 
 minor child, or a husband for an injury to his wife, which de- 
 prives him of her society and services. 
 
 THE PLEADINGS. 
 
 § 718. Based upon what. — Actions against common car- 
 riers of passengers, like actions against carriers of goods, are 
 based upon the contract for carriage, express or implied, or 
 upon a breach of that duty which the carrier owes to the pub- 
 lic and to the individual passenger to furnish safe transporta- 
 tion within a reasonable time and in a reasonably comfortable 
 manner. 
 
 The duty of the carrier to the passenger and the duty of the 
 passenger to the carrier have already been discussed in a former 
 chapter. A failure to perform that duty, if there is no legal 
 limitation, fixes the liability, and the declaration or petition 
 in an action against the carrier should in a concise and logical 
 manner allege in apt and sufficient language the existence of 
 the relation of carrier and passenger, and by averment ap- 
 prise the court and the parties of the particular duty that the 
 carrier has failed to perform; or if upon a contract, the par 
 ticular breach of the contract which the injury complained of 
 has resulted in; that the plaintiff was in the exercise of ordi- 
 nary care; that the failure on the part of the defendant to per- 
 form the contract or duty resulted in the injury complained 
 of and alleging the resultant damages. The usual and existing 
 rules applicable to pleading are followed in setting out in 
 proper language in the declaration or petition the averments 
 above mentioned. The plaintiff must by his declaration make 
 
 resentatlves for injuries to person- Mitchel v. Hotohkiss, 48 Codd. 16; 
 
 alty or realty, and by 9 and 10 Vict., James v. Eramet Co.. 55 Mioh. 33."i: 
 
 oh. 23, an act known as Lord Camp- Radio v. Detroit, 90 Mich. 92; Davis 
 
 bell's Act was passed, allowing ac- v. New York, etc. R. Co., 143 Mass. 
 
 tions for damages for the death of 305; Carey v. Railway Co., 1 Cush. 
 
 the person injured. 3 Bik. Com. 302; 475; Lyon v. Woodward, 49 Me. 69. 
 Russell v. Sunbury, 37 Ohio St. 374; 
 
 733 
 
OH. VI.] ACTIONS AGAINST OAEEIEES OF PA8SENGEES. [§§719-21. 
 
 out a case against the defendant, otherwise it would be subject 
 to demurrer. 
 
 § 719. The answer or plea of the defendant.— The defend- 
 ant may in his plea or answer set out any of the defenses 
 which have already been mentioned by which he is able to 
 meet the case made by the plaintiff; that is to say, a general 
 denial of the allegations of the petition or declaration ; or that 
 the plaintiff's injury was not the proximate result of the acci- 
 dent complained of, or that the plaintiff was guilty of con- 
 tributor}' negligence. 
 
 THE EVIDENCE. 
 
 § 720. What must be proven.— -It is incumbent upon the 
 plaintiff to make out his case as alleged by a preponderance 
 of evidence. The allegations made in the declaration or peti- 
 tion must be proven so clearly that it may be said that the case 
 is proved. While this is true, it does not follow that the plaint- 
 iff must prove by oral or written proof ever}^ fact in the case 
 necessary to be proved in order to sustain the allegations in his 
 petition or declaration, for there are certain facts which are 
 presumed ; as, for example, it appearing that the defendant is 
 a common carrier of passengers ; that the plaintiff was a pas- 
 senger for hire and being 'transported by him upon his vehicle, 
 the law lays upon the carrier in such case certain duties and 
 raises certain implied obligations, and it is not necessary to 
 prove what these duties or obligations are; but when the cir- 
 cumstances and facts are shown which prove the relation of 
 passenger and carrier and circumstances of the accident, and 
 that the injury resulted from the accident which was the re- 
 sult of the neffliffence of the carrier, and the amount of dam- 
 ages which were directly caused by the accident, the case is 
 made out. 
 
 § 721. Presumption of negligence.— ISTegligence, however, 
 is not always presumed from the mere fact that an accident 
 occurred which resulted in an injury to the passenger, for 
 although a very high degree of diligence is required of the 
 carrier, he is, as we have seen, often excused from liability; 
 as where the accident was directly and entirely attributable 
 to an act of God or the public enemy, or was the result of the 
 negligence of the plaintiff; in such cases negligence would not 
 
 733 
 
§ 721.] CAEEIEES OF PASSENGERS. [PAET VI. 
 
 be presumed, but could only be made out by proof; and as to 
 whether the negligence which caused the accident and which 
 resulted in damages was attributable to the carrier would be 
 a question for the jury; but if the accident resulted from a 
 collision of trains, from a defective track, from broken and 
 unsuitable vehicles or machinery, in such like cases negligence 
 would be presumed, for in all such cases the defendant has the 
 exclusive control and management and must therefore avoid 
 the accidents; as, for example, he is bound to so regulate the 
 running of his trains that collisions will not occur. The track 
 over which trains are run, the vehicles which are used for con- 
 veying the passengers, the machinery which is employed by 
 the carrier for the hauling of his trains, all are under the im- 
 mediate and absolute control of the carrier, and so if he fails 
 to perform his duty in respect to these agencies, negligence 
 will be presumed and he will be liable for damages resulting 
 therefrom. And " where a stage-coach was overturned by the 
 coming off of a wheel upon a smooth and level road, the evi- 
 dence was held to be competent to show that the coach could 
 not have been properly prepared for the road."^ And where 
 a railroad train ran from the track and was overturned, it was 
 fairly presumable, as the machinerj'^ and railway track were 
 exclusively in the management of the railway company, that 
 the accident arose from its want of care; no explanation of the 
 cause being offered.^ In Kendall v. Boston,^ in summing up 
 the cases cited, the court say ; " In all these cases it is to be 
 observed that the defendant has been proved to have had the 
 exclusive control and management of these objects or agen- 
 cies from some defect in which the accident must have taken 
 place." 
 
 In Fjhjerloii v. Railway Co} it is said: "Whenever a car or 
 train leaves the track it proves that either the track or ma- 
 chinery, or some other portion thereof, is not in a proper con- 
 dition, or that the machinery is not properly operated, and 
 presumptively proves that the defendant, whose duty it is to 
 keep the track and machinery in the proper condition, and to 
 
 1 Ware v. Gay, 11 Pick. (Mass.) 106. » 118 Mass. 234, 236. 
 
 2Carpue v. London, etc. R. Co., 5 «39 N. Y. 227, 229. 
 Q. B. 747 ; Feital v. Railway Co., 109 
 Mass. 390, 403. 
 
 734 
 
CH. VI.J ACTIONS AGAINST CAEEIEES OF PASSENGEES. [§ 721. 
 
 operate it with the necessary prudence and care, has in some 
 respect violated this duty. It is true that a bad state of the 
 track or machinery may have resulted from the wrongful act 
 of persons for whose conduct the defendant is not responsible 
 and the injury to the passenger may have resulted therefrom, 
 and in such case the company is not responsible; but such cases 
 are extraordinary, and those guilty of perpetrating such acts 
 are highly criminal; and therefore there is no presumption of 
 the perpetration of such acts by others, and the company, if 
 excusable upon this ground, must prove the facts establishing 
 such excuse." And where a passenger in defendant's stage- 
 coach was drowned by the coach being precipitated into the 
 water because of the uncoupling of the fore- wheels while it was 
 being driven into a ferry-boat, it was held that the negligence 
 of the defendant would be presumed.' 
 
 The court of Minnesota lays down the following rule: "Where 
 an injury occurs to a passenger through a defect in the con- 
 struction or working or management of the vehicle, or anything 
 pertaining to the service which the carrier ought to control, a 
 presumption of negligence arises from the happening of the 
 accident, and upon such proof the burden will devolve upon 
 the defendant to exonerate himself by showing the existence 
 of causes beyond his control, unless evidence thereof appears 
 as part of plaintiff's own case." And the court further say: 
 " The severe rule which enjoins upon the carrier such extraor- 
 
 1 McLean v. Burbank, 11 Minn. 277; note, 15 L. E. A. 35, 36, 87. In Persh- 
 Stokes V. Saltonstall, 38 U. S. (13 Pet.) ing v. Railway Co., 71 Iowa, 561, held, 
 181, 10 L. ed. 115; Lawrence v. " where a passenger is injured by an 
 <jreen, 70 Cal. 417, 59 Am. Rep. 428; accident to a train, the presumption 
 Anderson v. Scholey, 114 Ind. 553; of negligence arises only as to those 
 Tarish v. Reigle, 11 Grat. (Va.) 697; acts or omissions which might have 
 Baltimore, etc. Co. v.Worthington, 21 caused the accident." N. J. etc. Co. 
 Md. 275, 83 Am. Dec. 578; Wilson v. v. Pollard, 89 U. 8. (22 Wall.) 341. 22 
 Railway Co., 26 Minn. 278; Meier v. L. ed. 877. In Railway Co. v. Wal- 
 Hailway Co., 64 Pa. St. 230; Railway rath,, 38 Ohio St. 461, it was held that 
 Co. V. Williams, 74 Ind. 462; Cleve- "on proof of injuries sustained by a 
 land, etc. R. Co. v. Newell, 104 Ind. passenger on a railroad train by the 
 ■364; Mitchell v. Railway Co., 87 Cal. falling of a berth in a sleeping-car, 
 62, 11 L. R. A. 130; Peoria, etc. R. Co. and that the passenger was without 
 -V. Reynolds, 88 III. 418; Louisville, fault, a presumption arises, in the 
 ■etc, Co. V. Jones, 108 Ind. 551. And absence of other proof, that the rail- 
 see Barnowski v. Helson, 89 Mich, road company is liable." (Citing 
 ■523, 15 L. R. A. 33, also cases cited in cases.) 
 
 735 
 
§ 722.] CAREIEES OF PASSENGEE8. [PAET VI. 
 
 dinary care and diligence is intended, for reasons of public 
 policy, to secure the safe carriage of passengers in so far as 
 human skill and foresight can effect such result." ' 
 
 § 722. Contributory negligence. — Among the most fre- 
 quent defenses to actions for personal injuries against carriers 
 of passengers is that of contributory negligence on the part of 
 the plaintiff. The plaintiff, as we have seen, must be free from 
 negligence upon his part, else he cannot recover. As to the 
 necessity of the plaintiff alleging in the declaration or petition 
 that he was exercising due diligence, or, in other words, was 
 free from negligence which contributed to the injury, the au- 
 thorities do not entirely agree. While it is usual to so allege, 
 or at least to allege facts from which the conclusion is infer- 
 able, it would seem that the weight of authority is that it is 
 not necessary for the plaintiff to aver that he was free from 
 such negligence, the rule being that it is not necessary to an- 
 ticipate the answer of the adversary, which, as Hale, C. J., has 
 said, is "like leaping before one comes to the stile." This 
 seems to be the rule in England and in the following states in 
 the Union: Alabama, California, Georgia, Kansas, Kentucky, 
 Minnesota, Missouri, Montana, Nebraska, New Hampshire, 
 New Jersey, North Carolina, North Dakota, Ohio, Oregon, 
 South Carolina, Texas, Virginia, Washington, West Yirginia, 
 Wisconsin, and New York. 
 
 On the other hand, there are a number of states which hold 
 that the plaintiff must aver that he was free from contributory 
 negligence, or, at least, that the injury occurred without fault 
 upon his part: Indiana, Maryland, ]Maine, Massachusetts, Mich- 
 igan, Rhode Island, Illinois and Iowa. 
 
 It being necessary to make out & prima facie case to prove the 
 allegations of the declaration or petition, it therefore follows 
 that in the states where it is incumbent upon the plaintiff to 
 allege that he is free from negligence or fault which contrib- 
 uted to the injury, the burden of proof would be upon him 
 to so prove upon the trial, and in those cases where it is not 
 necessary so to allege, that the burden of proof would be 
 upon the defendant to show that the plaintiff was guilty of 
 
 1 Smith V. Railway Co., 33 Minn. 1, and extended brief of counsel, Spell- 
 50 Am. Rep. 550; and see,for a general man v. Rapid Transit Co., 30 Neb, 890, 
 discussion, citations of authorities 55 N. W. 270, 30 L. R. A. 316. 
 
 73G 
 
CH. VI.J ACTIONS AGAINST CAEEIEES OF PASSENGEES. [§§ 723-24. 
 
 contributory negligence; in other words, that the necessary 
 allegation would govern as to the burden of proof.^ 
 
 DAMAGES. 
 
 § 723. General rules applicable.— The general rules appli- 
 cable to damages which have already been discussed as appli* 
 cable to common carriers of goods are applicable here. Com- 
 pensation for the personal injury of the plaintifif is sought 
 either in compensatory, exemplary, vindictive or punitive dam- 
 ages. The rule always applicable to every case where dam- 
 ages are sought, and which must never be lost sight of, is that 
 the damages recoverable must be the proximate and natural 
 consequences of the injury. "You must have something im- 
 mediately flowing out of the breach of contract complained 
 of, something immediately connected with it, and not merely 
 connected with it through a series of causes intervening be- 
 tween the immediate consequence of the breach of contract 
 and the damage or injury complained of.'"^ 
 
 §734. Proxinaate or remote consequences. — "Where the 
 evidence and findings show that defendant, while running its 
 trains and locomotives over a street opposite plaintiff's salt 
 vats, unlawfully cast over and on plaintiff's land and salt vats 
 great quantities of dirt, dust and cinders, whereby the amount 
 of salt produced by plaintiff was lessened in quantity, deterio- 
 rated in quality and diminished in value, the damages are not 
 too remote or speculative to justify a recovery."' In an ac- 
 tion for personal injuries it was held sufficient if the damages 
 claimed " legitimately flowed from the negligent act of de- 
 fendant, and whether such damages might have been foreseen 
 by the defendant is immaterial." * In a case where a florist 
 brought an action for damages against a gas company by rea- 
 son of gas escaping and damaging his plants, undertaking also 
 to recover for injury to his business reputation on account of 
 the failure of the plants sold to customers to grow as recom- 
 mended, the court of New Hampshire held that the full dam- 
 
 1 Cases have been collected and ' Syracuse, etc. Co. v. Railway Co., 
 cited and largely quoted in 5 Ency. 60 N. Y. Sup. 40. 
 of PI. & Pr. 1, etc., and in Hutch, on < Grouse v. Railway Co., 104 Wis. 
 Car., sees. 802. 803, and notes. 473, 80 N. W. 752. 
 
 ^Hobbs V. Railway Co., L. R. 10 
 Q- B. (1872), 111. 
 
 47 737 
 
§ 724.J CAEEIEES OF PASSENGERS. [PAET VI. 
 
 age to the plants was a proper matter of inquiry, but that a 
 claim for the injury of the plaintiff's reputation on account of 
 the sales of damaged plants was conjectural and too remote 
 to be allowed. The court say: "The special damages claimed 
 and allowed for the injury to the plaintiff's business reputation 
 fcn account of his sales of damaged plants were not properly 
 recoverable and must be disallowed as too remote. There are 
 cases undoubtedly where the tort complained of is of such a 
 nature that the law will not nicely attempt to limit the amount 
 of reparation, but will extend the line of relief so as to em- 
 brace all the consequences of the wrong-doer's conduct al- 
 though quite remote from the original transaction. But as a 
 general rule it may be said that in cases of tort without spe- 
 cial aggravation, where the conduct of the defendant cannot 
 be considered so morally wrong or grossly negligent as to give 
 a right to exemplary or vindictive damages, the extent of the 
 plaintiff's remuneration is restricted to such damages as are 
 the legal and natural consequences of the defendant's wrong- 
 ful act.'" And so expenses incurred by reason of the injury 
 are held to be recoverable; as, for example, expenses neces- 
 sarily incurred by the plaintiff while disabled in procuring 
 competent help in his business, or to do the work which would 
 have been performed by himself had he not been injured; 
 also services of a physician who is called to render medical 
 aid; also amounts necessarily paid for medicines, and the 
 value of the services rendered by the wife of the injured per- 
 son, have been held to be recoverable by the husband in an 
 action for the injury.^ Loss of ability to labor is an element 
 of damage which may be considered ; also the loss of earn- 
 ings and earning capacity, the rule being " that the jury may 
 award such fair sum as would in their judgment compensate 
 for the lessened or destroyed inability to earn money, making 
 due allowance for the contingencies and uncertainties that in- 
 here in such matter."^ But speculative profits — profits on 
 
 I Dowe V. Winnipesaukee, 69 N. H. Traction Co., 189 Pa. St. 430, 42 Atl. 
 
 313, 42 L. R. A. 569. 1; Williams v. City, etc., 119 Mich. 
 
 ^Crouse v. Railway Co., 104 Wis. 395; Wynne v. Railway Co., 156 
 
 473, 78 N. W. 446; Omaha Street Ry. N. Y. 702, 51 N. E. 1094. 
 Co. V. Emminger, 57 Neb. 240, 77 3 Denver v. Sherrett, 31 C. G. A. 
 
 N. W. 675; North Chicago, etc. Co. 499, 88 Fed. 226; Chicago, etc. Co. v. 
 
 V. Zeiger, 78 III App. 463; Willis v. Postin, 59 Kan. 449; Levinski v. 
 
 738 
 
CH. VI.J ACTIONS AGAINST CAEEIEES OF PASSENGEES. [§ 725. 
 
 invested capital — are not recoverable as damages resulting 
 from one's inability by reason of injuries to transact his ordinary 
 business; such damages would be considered, too remote. The 
 loss of profits as damages for a breach of a contract is gov- 
 erned by the same rules that apply to the recovery of other 
 damages; that is to say, it must be the direct, immediate re- 
 sult of the injury. "Wherever there is any speculation or un- 
 certainty,. such profits are not recoverable.^ 
 
 So damages for mental suffering, as from fright, remorse and 
 bodily pain, are recoverable when it can be shown that they are 
 the direct result of the injury. Mental and physical suffering 
 ^re classed as actual damages when they are a natural and 
 direct result of the accident.^ And it has been held that dis- 
 figurement caused by a tortious injury is an element of general 
 damage, but annoyance caused by contemplation of such dis- 
 figurement is too remote to be considered as an element of 
 damages.^' 
 
 § 725. Actual, exemplary, punitive or vindictive damages. 
 Here, as in the case of common carriers of goods, exemplary, 
 punitive or vindictive damages can no doubt be recovered, and 
 for the same reasons and under the same circumstances; as 
 where there is wanton or malicious invasion of the rights of the 
 injured person, where there is vindictiveness on the part of 
 the defendant, the weight of authority seems to be that ex- 
 emplary or punitive damages may be recovered. 
 
 The discussions already had upon this subject as applicable to 
 common carriers of goods will apply here,* and while there is 
 some disagreement among the courts with reference to this 
 
 Banking Co., 34 C. C. A. 453, 92 Fed. ously impair her prospects of mar- 
 
 449; Mirandona v. Burg, 51 La. Ann. riage when she reaches a marriage- 
 
 1190; Raynor v. Brewing Co., 100 Wis. able age, such fact may properly be 
 
 414; Conway v. Mitchell, 97 Wis. 390. considered by a jury as an element 
 
 iCent. Trust Co. v. Clark, 34 C. C. of damages resulting from the in- 
 
 A. 354, 93 Fed. 293. jury. 
 
 ^OmahaSt. Ry. Co.v.Emminger,57 ^QiSen v. City (Idaho, 1898), 35 
 
 Neb. 240, 77 N. W. 675. InO'Flaherty Pac. 545; Kalen v. Railway Co.; 18 
 
 V. Railway Co., 54 N. Y. Sup. 96, Ind. App. 203, 47 N. E. 694 Where 
 
 it was held that "injuries from there is physical injury from which 
 
 fright accompanying a physical in- damage results, fear may be consid- 
 
 jury furnishes a basis for recovery ered In aggravation. Jones v. Rail- 
 
 of damages." Where a personal in- way Co., 48 N. Y. Sup. 914. 
 
 jury to a little girl is such as to seri- ^ See ante, § 706, etc. 
 
 739 
 
§ 725.] CAKRIEES OF PASSENGERS. [PART VI, 
 
 subject, it would seem that the real difference in the holdings 
 of the courts is very slight. The courts that seem to take ex- 
 ceptions to this rule are those which hold that damages must 
 be compensatory, and yet it does not require a very great 
 stretch of the imagination, or any other than the application 
 of sound reasoning, for one to conclude that exemplary or vin- 
 dictive damages as held by the majority of the courts are, after 
 all, generally simply compensatory ; in that it is compensation 
 for the real and actual damage to the person who has suffered 
 the injury — compensation for the wanton and malicious inva- 
 sion of rights. Because in such cases the oppression and vin- 
 dictiveness of the defendant who has been guilty of perpetrat- 
 ing the wrong cannot be fully compensated for in any other 
 way, and so such damages are after all actual and compensatory. 
 
 740 
 
INDEX. 
 
 Eeferences are to sections. 
 
 ACCIDENT, INEVITABLE, 55, 108, 149, 150, 403. See Bailments; Com- 
 mon Carriers; Innkeepers. 
 ACTIONS AGAINST CARRIERS (Ch. VI, Part VI) — 
 Actions against common carriers divided — 
 
 (1) Against common carriers of goods. 
 
 (2) Against carriers of passengers. Ch. VI. 
 Actions Against Common Carrier of Goods — 
 
 the basis of the action, 690. 
 
 what actions will lie, 691. 
 
 actions ex delicto and ex contractu, 690, 691. 
 
 option to bring either, even if special contract, 693. 
 
 advantages of action ex delicto, 693. 
 
 for refusal to carry goods, must be ex delicto, 694 
 
 parties to the action, 695. 
 
 consignee presumed to be owner, 696. 
 
 one having special property, party to action, 697. 
 
 consignor, may bring action when, 698. 
 
 party defendant, 699. 
 
 pleadings in the action, 700. 
 
 declaration or petition, 700. 
 
 defenses, 701. 
 Proofs. 
 
 proofs in the action, 703. 
 
 negligence, proof of, 703. 
 
 proof of by defendant, 704 
 Damages. 
 
 of what damages generally consist, 705. 
 
 actual, exemplary, punitive, vindictive, 706. 
 
 exemplary confined to liberal compensation, 707. 
 
 liability of principal or master for acts of agent or servant, 708. 
 
 damages for refusal to receive and transport, 709. 
 
 damages for loss or injury in transit, 710. 
 
 shipper bound by value he puts on his goods, 711. 
 
 as to value when goods not merchandise and not marketable, 713. 
 
 when goods shipped to be delivered on sale already made, 713. 
 
 damages for failure to deliver at time specified or within reason- 
 able time, 714. 
 
 damage for failure to deliver; for misdelivery, 715. 
 741 
 
74:2 INDEX. 
 
 References are to sections. 
 
 ACTIONS AGAINST CARRIERS (continued) — 
 Actions Against Carriers op Passengers. 
 survival of actions for persoaal injuries, 716. 
 actions when injury does not result in death, 717. 
 The Pleadings. 
 
 pleadings based on what, 718. 
 based on duty of carrier or contract. 718. 
 declaration or petition should contain, 718. 
 answer or plea of defendant, 719. 
 The Evidence. 
 
 what must be proven, 720. 
 negligence, presumption of, 721. 
 contributory negligence, 722. 
 as to necessity of alleging it, 722. 
 Damages. 
 
 general rules applicable, 723. 
 proximate or remote consequences. 726. 
 ■what damages are recoverable, 724. 
 actual, exemplary, punitive, vindictive, 725. 
 ACT OF GOD, 55, 56, 106, 108, 353, 469, 470, 471, 472, 473, 504, 505, 538, 649, 
 650. See Bailments, Ordinary: Innkeepers; Common Carriers 
 OP Goods; Carriers op Passengers; Carriers op Baggage. 
 when will excuse bailee's liability, 55. 
 see Pledge and Pawn. 
 AGENTS — 
 
 the bailment relation has element of agency, 44 
 
 the bailee agent of the bailor, 44. 
 
 expenditures by bailee to preserve property, bailor liable for, 44. 
 
 bailee may contract in bailor's name to preserve, 45. 
 
 agent may create bailment for principal, 15. 
 
 agent, actual or apparent, may receive goods, 437. 
 
 the carrier authorized to receive, 438. 
 
 when initial carrier agent of connecting carrier, 533, 535. 
 
 see Bailments, Ordinary; Innkeepers; Common Carriers; Post- 
 office Department. 
 AGISTERS — 
 
 no lien at common law, 163. 
 reasons why, 163. 
 
 some courts hold agister has a lien, 168. 
 ANIMALS — 
 
 bailee must feed and care for, 45. 
 anim.als and offspring, bailment of, 111. 
 
 see Agisters, 163, etc. ; Animate Freight, 468. 
 inherent nature of, as to liability for, 486. 
 
 see Carriers op Live Stock, 487-191: Common Carriers: Inn- 
 keepers; Pledge and Pawn. 
 BAGGAGE OR PASSENGER'S EFFECTS (Ch. V, Part VI) — 
 kinds of baggage, 666. 
 ordinary baggage, definition, 667. 
 
INDEX. 743 
 
 Eeferences are to sections. 
 
 BAGGAGE OR PASSENGER'S EFFECTS (continued) — 
 to determine what is baggage — 
 
 (1) station in life of passenger considered, 668. 
 
 (3) business or occupation of passenger considered, 668. 
 
 (3) tlie object of the journey, 674. 
 
 (4) the effects must be personal to the passenger, 671. 
 
 (5) must be reasonable in amount, 673. 
 what is baggage, 673. 
 
 sample trunks or commercial baggage and effects, 674. 
 
 excess baggage, payment for, 675. 
 
 carrier may make reasonable regulations concerning, 676* 
 
 good faith required of passenger as to, 677. 
 
 owner of baggage should be a passenger, 678. 
 
 owner accompanying baggage, 679. 
 
 free pass, baggage of one riding on, 680. 
 
 liability of carrier for baggage, 681. 
 
 hand baggage, 682. 
 
 liability of carrier depends on control of baggage, 683. 
 
 sleeping-car companies, as to baggage, 683. 
 
 theft of by servants, liability of company, 684. 
 
 a high degree of ordinary diligence required as to, 68.5. 
 
 mixed custody of baggage by passenger and carrier, 686. 
 
 Steamship Company's Liability for Baggage, 686. 
 
 steamship company's liability as innkeeper, 686. 
 
 baggage of steerage passengers, 687. 
 
 termination of liability, 688. 
 
 when the passenger should receive baggage at terminus of jour- 
 ney, 688. 
 
 when carrier should deliver baggage to passenger, 688. 
 
 failure of carrier to deliver baggage, 689. 
 
 actions for loss or damage to, see Actions Against Carriers of 
 Passengers. 
 BAILMENT, ORDINARY (Ch. I, Part I) — 
 history and origin of, 1. 
 definition of, 3. 
 
 Sir William Jones' definition of, 3. 
 Judge Story's definition and criticism, 3. 
 a factor; a bailee, 3-5. 
 
 Chancellor Kent's definition and criticism, 4, 5. 
 purpose of bailment may necessitate change in property bailed, 6. 
 change would affect rule that property must be redelivered, 7. 
 property of like specie and value may be returned, 7. 
 Roman mutuum, 8. 
 grain stored in elevators, 9. 
 identical grain not redelivered, 9. 
 grain stored in flouring mill, 10. 
 not grain but flour for grain, 10. 
 parties to bailment — bailor, bailee. It, 
 
74i INDEX. 
 
 References are to sections. 
 
 BAILMENT, ORDINARY (continued) — 
 who may be bailor or bailee, 12. 
 competency of parties, 13. 
 
 one incompetent to contract may become bailee, 13. 
 one receiving property, if incompetent, liable as bailee, 13, 
 disability a shield, not a sword, 14. 
 infant liable when injures property, 14. 
 agent may create bailment for principal, 15. 
 corporation may be bailor or bailee, 16. 
 some common examples of bailment, 17. 
 kind of property that may be subject of bailment, 18. 
 personal property only, subject of bailment. 18. 
 incorporeal per.sonalty may be, 18. 
 stocks, bonds, etc., 18. 
 delivery and acceptance are essentials, 19. 
 essence of relation is possession of property, 19. 
 one cannot be made bailee against his will, 19. 
 bailee must know he has possession, 19 
 title of the bailor of property, 20. 
 bailee cannot dispute his bailor's title, 20. 
 bailor may sell or incumber the property, 31. 
 bailee's title, possession, 31. 
 bailor miist exercise good faith, 33. 
 must not expose bailee to danger, 23. 
 bailment or a sale, 23. 
 when not a sale, 23. 
 when a bailment, 23. 
 grain commingled in storage, 34 
 when sale, when bailment, 34. 
 bailment, sale or gift, how determined, 25. 
 Op the Classification op Bailments (Ch. II, Part I). 
 
 Roman classification, 86. 
 
 the several kinds of bailment, 86. 
 
 Story's division of locatio bailments, 26. 
 
 modern classification. 27. 
 
 compensation governs, 27. 
 
 modern classification includes earlier, 28. 
 
 bailments are ordinary and exceptional, 29. 
 
 exceptional bailments, 30. 
 
 postmasters. Innkeepers, common carriers, 30. 
 
 chart showing classification of bailments, 31. 
 Eights, Duties and Liabilities Generally op Bailor and Bailee 
 (Ch. Ill, Part I). 
 
 gratuitous and non-gratuitous bailments, 33. 
 
 consideration for the bailment, 34. 
 
 liability rests on benefit to the parties. 35. 
 
 negligence or diligence governed by benefit, 36. 
 
 chart showing duties and liabilities, 37. 
 
INDEX. 745 
 
 References are to sections. 
 
 BAILMENT, ORDINARY (continued) — 
 
 diligence and negligence defined, 38. 
 
 are relative terms, 38. 
 
 definition generally accepted, 89. 
 
 every case.ruled by itsov^n circumstances, 40. 
 
 high diligence, gross negligence, defined, 41. 
 
 diligence and negligence question of law and fact, 42. 
 
 classification of conditions and circumstances, 43. 
 Some Fuetheb General Pkinciples as to Eights and Liabilities 
 (Ch. IV, Part I). 
 
 bailment relation an agency, 44. 
 
 bailee's right to make expenditures as such, 44. 
 
 may, to preserve the subject of the bailment, 44. 
 
 may contract for care of bailed property when necessary, 45. 
 
 if property is animate, may feed and care for, 45. 
 
 bailee's right to use the property, 46. 
 
 general rule is, he must not use it, 46. 
 
 exceptions when use is necessary or beneficial to property, 46. 
 
 unwarranted use of, bailee liable, 47. 
 
 the use the property is put to, 47. 
 
 bailee may protect the property and his interest, 48. 
 
 may bring an action if necessary, 48. 
 
 gratuitous skilled bailee, liability, 49. 
 
 must exercise his ordinary skill, 49. 
 
 degrees of diligence and negligence, 50. 
 
 special deposit in bank, 51. 
 
 determining negligence, 53. 
 
 honesty and good faith demanded, 53. 
 
 when property claimed by third parties, 54. 
 
 bailee may protect himself, 56. 
 
 compel parties claiming to interplead, Si. 
 
 what will excuse loss or injury of property. 55. 
 
 act of God, public enemy, irresistible force, inevitable accident, 
 fire, robbery, 55. 
 
 if bailee obtains possession unlawfully or tortiously, liable for in- 
 jury or loss, 56. 
 
 not shielded by act of God or other excuses, 56. 
 
 bailee entitled to reimbursement, when, 57. 
 
 when bailor cannot sustain action against third party, 57. 
 
 bailee may have action against third party, when, 58. 
 
 liability modified or enlarged by contract, 59. 
 
 bailee can lessen liability, how far, 60. 
 
 bailee cannot contract against his own fraud or gross negligence, 60. 
 
 redelivery to bailor, 61. 
 
 general rule is, must redeliver property, 61. 
 
 some exceptions to the rule, 61, 62. 
 
 not always required to deliver the specific property, 62. 
 excuses for non-delivery, 64. 
 
146 INDEX. 
 
 References are to sections. 
 
 BAILMENT, ORDINARY (continued) — 
 
 when loss without fault of bailee, 64, par. 1. 
 when property has been delivered to true owner, 63, par. 8. 
 when deprived of property by due process of law, 63, par. 8. 
 what the duty of bailee when goods taken on legal process, 63, 
 
 par. 3. 
 when property demanded of him by other parties, 63. par. 4. 
 when excused by the terms of the contract, 63, par. 5. 
 conversion of the property, 64. 
 what amounts to, 64. 
 
 bailee's right to compensation and lien, 65. 
 agreement for compensation necessary to create lien, 66. 
 if no statute, bailee has lien by common law, 67. 
 common-law lien, definition of, 67. 
 two kinds of liens, 68. 
 particular or specific lien, definition of, 68. 
 general lien, definition of, 68. 
 must be delivery to the bailee to create lien, 69. 
 finder of property essential to lien, 70. 
 finder of property may have lien, when, 71. 
 extinction of lien, 73. 
 by payment or tender. 72. 
 lien may be waived, how, 73. 
 refusal to deliver for other reasons than lien, 73. 
 lien waived by an agreement to give credit, 73. 
 lien waived by parting with possession of property, 73. 
 lien once lost cannot be revived, 74. 
 bailor's right to compensation, 75. 
 may arise from express or implied contract, 75. 
 enforcement of lien of bailee. 76. 
 cannot foreclose and sell property, 76. 
 can sell by statutes regulating sale, 76. 
 Termination of Bailments. 
 the several ways of, 78. 
 
 (1) By expiration of the time for which the property was 
 
 bailed, 78. 
 
 (2) By reason of the accomplishment of the object, 79. 
 
 (3) By act of parties, 80. 
 
 possession of property cannot be withheld from bailor or bailee 
 
 if bailment gratuitous, (a), 80. 
 no consideration for such a contract, (a), 80. 
 bailor may revoke at will, (a), 80. 
 but must be reasonable, (a), 90. 
 bailor may terminate when no fixed time of accomplishment 
 
 of bailment, (b), 80. 
 may terminate when bailee fails to return property at time 
 
 fixed, (c), 80. 
 mere declaration of ownership not enough, (e), 80. 
 but if coupled with action showing denial of bailor's title, (e), 80. 
 
INDEX. 747 
 
 References are to sections. 
 
 BAILMENT, ORDINARY (continued) — 
 
 or if unequivocal act showing holding adverse to bailor, (e), 80. 
 
 by sale, pledge or act of ownership by bailee, (f), 80. 
 
 by abuse and injury of property, (g), 80. 
 the bailee may terminate the bailment, (h), 80. 
 
 when bailment for sole benefit of bailor, (h), 80. 
 
 should give reasonable notice to bailor, (h), 80. 
 if bailment for benefit of both parties, terminating, (i), 80. 
 
 cannot terminate unless breach of terms of contract, (i), 80. 
 
 bad faith, fraud, dishonest dealing, failure to execute trust, 
 (i), 80. 
 
 unauthorized use of property resulting in injury, (i), 80. 
 
 unwarranted action inconsistent with baihuent, (i), 80. 
 
 when notice of intention necessary, (i), 80. 
 
 (4) By operation of law, 81. 
 
 (5) By destruction of the bailed property, 83. 
 
 (6) The death of the bailee. 83. 
 
 if bailment gratuitous, death of bailee terminate.s, 83. 
 
 if bailment non-gratuitous, 83. 
 
 termination would depend upon contract creating relation, 83. 
 
 if bailment does not require personal or professional skill of 
 bailee, terminates, 83. 
 
 if personal representatives could carry out bailment, death 
 would not terminate, 83. 
 
 if personal skill of bailee the object of, death would termi- 
 nate, 83. 
 
 (7) By incompetency of parties. 
 
 Liability op Bailor and Bailee when Bailment for Sole Bene- 
 fit OF Bailor (Ch. VI, Part I), 
 these bailments of two kinds, 85. 
 
 (1) Mandatum, definition of, 86. 
 
 to create mandate three things necessary, 86. 
 
 (2) Depositum, definition of, 87. 
 
 use of the deposit, 88. 
 
 depositary no right to use deposit, 88. 
 
 when his duty to use it, 88. 
 
 special not general deposit, 89. 
 
 guasi-deposits, definition of, 91. 
 
 distinction between depositum and mandatum, 93. 
 
 a contract relation, 93. 
 
 the bailee's liability, 94. 
 
 slight diligence required of bailee, 94. 
 
 liable only for gross negligence, 94. 
 
 sole benefit of bailor, what is meant by, 96. 
 
 least benefit to bailee places bailment in another class, 96. 
 
 even indirect bailment changes class, 97. 
 
 no matter how slight the benefit, 97. 
 
74:8 INDEX. 
 
 References are to sections. 
 
 BAILMENT, ORDINARY (continued) — 
 
 bailee's duty when notified of facts requiiing special care, 98. 
 
 failing to obey instructions or terms of bailment, 99. 
 termination of the relation and bailor's remedies, 100. 
 Liability op Bailor and Bailee When Bailment for the Sole 
 Benefit of the Bailee (Ch. VII, Part I). 
 conimodatum, definition of, 101. 
 
 bailment must be for the sole benefit of the bailee, 103, 
 
 slightest benefit to bailor would change class of, 102. 
 
 tlie liability of the bailee, 103. 
 
 bailee held to high diligence. 103. 
 
 liable for slight negligence, 103. 
 
 extraordinary care of property required, 103. 
 
 infant bailee liable in action of tort, 103. 
 
 bailment must be for legal purpose, 104. 
 
 bailor need not be absolute owner of property, 105. 
 
 qualified or special property sufficient, 105. 
 
 thief may be bailor of property, 105. 
 
 finder of property may be bailor, 105. 
 
 the right conferred by contract of bailment, lOd 
 
 bailee has possessory interest in chattel, may defend it, 106. 
 
 may use property as permitted by contract express or implied, 
 106. 
 
 liable for loss if result of unauthorized use, 106. 
 
 if loss by reason of act of God or public enemy will not be 
 excused, when, 106. 
 
 obligations of borrower, 107. 
 
 bailee's defenses, 108. 
 
 where loss occasioned by act of God, public enemy, irresistible 
 force or inevitable accident, 108. 
 
 but notwithstanding this, ordinary diligence required, 108. 
 
 injury or loss must be without fault of bailee, 109. 
 
 slightest neglect, exposure of property, liable for, 109. 
 
 ordinary and extraordinary expenses, when can pay, 110. 
 
 ordinary expense bailee must pay, 110. 
 
 extraordinary, may collect of bailor, 110. 
 Redelivery op the Thing Bailed, 111. 
 
 at termination of bailment, duty to redeliver. 111. 
 
 must redeliver with all natural accessions, 111. 
 
 if bailment animals, with offspring. 111. 
 
 if bonds or security, with interest accumulated or collected, 111. 
 
 cannot retain property or accessions for debts due him, 113. 
 
 exception where compelled to pay extraordinary expenses, 112. 
 
 may in soiiie cases have lien on property, 112. 
 
 obligations of the bailor, 113. 
 
 must allow bailee to enjoy bailment for time bailed, 113. 
 
 would be liable if contract violated, 113. 
 
 may terminate at any time by notice, when, 118. 
 
 termination of the bailment, 1 13. 
 
INDEX 7491 
 
 References are to sections. 
 BAILMENT, ORDINARY (continued) — 
 
 Liability op Bailor and Bailee when Bailment for Benefit of 
 Both (Ch. VIII). 
 mutual-benefit bailments, nature and extent of, 114. 
 mutuality of benefit fixes liability, 114. 
 exceptional bailments belong to this class, 114. 
 locatio or hiring bailments belong to this class, 114 
 locatio et conduetio bailments, definition of, 115. 
 definitions further explaining, 116. 
 general view of, locatio conduetio, 117, 
 how these bailments created, 118. 
 the hiring bailments embrace, 119. 
 
 the letting, the hiring, and work and labor upon the thing, 119. 
 general subdivisions of the hiring bailments, 120. 
 Locatio Rex Bailments (Ch. IX, Part I), 
 the hiring of the thing for use, 131. 
 this class includes, 131. 
 
 exercising unauthorized dominion and control over property, con- 
 version, 128. 
 bailor's right against third parties, 139. 
 
 against bailee, 139. 
 bailee's liability to third parties for negligent use, 130. 
 bailee's negligence not imputable to bailor, 130. 
 bailee's right to assign his interest, 131. 
 when such assignment considered a conversion, 131. 
 extraordinary and incidental expenses of bailment, 133. 
 termination of this bailment, 133. 
 Locatio Opebis Bailments (Ch. X, Part I). 
 
 the hiring of labor and service upon the thing, 131 
 the kinds of bailments embraced herein, 134 
 the hiring of work and labor upon the thing, 135. 
 belongs to the mutual-benefit class, 135. 
 a contract relation, 136. 
 obligations of the employer, the bailor, 137. 
 the duty of the bailee, 137. 
 bailee has special property in the thing, 188. 
 whether the transation a sale or a bailment, 139. 
 when profits from the product divided, 140. 
 
 when the thing is destroyed during the carrying out of the agree- 
 ment, 141. 
 when destroyed after it is finished, 141. 
 the duty of the bailee, 148. 
 when work performed by the job and loss or injury occurs before 
 
 completion, 143. 
 work must be done as contracted, 144, 145. 
 a summary of the discussion, 146. 
 
 not every failure will deprive bailee of entire compensation, 147. 
 if the failure to perform is the fault of the bailor, 148. 
 
750 INDEX. 
 
 References are to sections. 
 
 BAILMENT, ORDINARY (continued) — 
 
 if prevented by inevitable accident or irresistible force, 149. 
 
 bailee's duty to reclaim property injured or temporarily lost, 150. 
 
 this his duty, even if loss occasioned by inevitable accident or irre- 
 sistible force, 150. 
 
 bailee may do work by an agent or servant, when, 151. 
 
 where skill as well as care is required, 152. 
 
 must exercise skill adequate to performance of the work, 153. 
 
 if bailee purports to have skill, must use it, 154. 
 
 ordinary skill required, 155. 
 
 what is ordinary skill in this class, 155. 
 
 degree of skill and diligence increases in certain cases, 158. 
 
 increases with difficulty of performance, delicacy of particular 
 work, 156. 
 
 to what extent agent or servant may be employed for skilled work, 
 157. 
 Defenses op the Bailee, 158. 
 
 to show that the skill and care exercised were ordinary, 158. 
 
 that the bailor dictated how the work should be done, 158. 
 
 that the injury occurred on account of defects in property or ma- 
 terial furnished, 158. 
 
 that bailor refused to furnish necessary funds, 158. 
 
 that bailor knew that bailee had not the required skill, 158. 
 
 as to notice to bailor that claims for defects must be made within 
 a certain time, 159. 
 
 title to material used passes to bailor by accession, 160. 
 The Lien op the Bailee in this class of bailments, 161. 
 
 priority of the lien, 163. 
 Agisters and Liveky-stable Men have no lien at common law, 163. 
 
 the reasons discussed and cases cited, 163. 
 
 the lien by statute to such persons, 164. 
 
 when chattel mortgage takes precedence over lien, 165. 
 Looatio CtJSTODi^ Bailments (Ch. XI, Part I). 
 
 the letting of care and custody of the thing for hire, 167. 
 
 what is embraced in this subdivision, 168. 
 
 depositum belongs to this class, 169. 
 
 the subject discussed, 170. 
 Warehousemen, How Depined, 171. 
 
 public warehouses and bonded warehouses, 173, 173. 
 
 whether a sale or a bailment when property delivered, 175. 
 The Warehouse Receipt, 176. 
 
 the warehouseman may insure the property, 177. 
 
 usage and general course of business often defines duty of, 178. 
 
 at common law, warehouse receipt technically not negotiable, 179. 
 
 warehouseman not permitted to impeach his receipt, 180. 
 
 negotiability of receipt provided by statute, 181. 
 
 when a common carrier is a warehouseman, 183. 
 
 as when goods are awaiting delivery, 183. 
 
 three classes of holdings in respect to this, 183. 
 
INDEX. T51 
 
 References are to sections. 
 
 BAILMENT, ORDINARY (continued) — 
 
 first class: Carrier a warehouseman when goods arrive at ter- 
 mination, 183. , 
 second class: New Hampshire rule — after reasonable time, 184' 
 third class: After proper notification to consignee of arrival 
 and reasonable time, 185. 
 wharfingers, definition, 186. 
 when liability begins, 187. 
 when liability ends, 188. 
 factors, or commission merchants, 189. 
 storage-house keepers, defined, 190. 
 
 duty of bailor or owner of goods stored, 191. 
 as to dangerous articles, bailor's duty, 193. 
 when the liability of the storage-house keeper begins, 193. 
 when his liability ends, 194. 
 
 storage-house keeper and wai-ehouseman the same, 195. 
 safe-deposit and trust companies, 196. 
 
 not gratuitous, differs from mere depositum, 197. 
 the nature of the bailment and diligence required, 198. 
 high order of diligence applicable to, 198. 
 other classes of custodians, 199. 
 
 liability of bailee in ciistodice bailments, 200. 
 when does the liability commence and end, 201. 
 as to proper place and kind of storage, 202. 
 diligence must keep pace with improvements, 203. 
 negligence, proof of, 304. 
 
 burden of proof of negligence, does it shift, 205. 
 question summed up and rule settled, 206. 
 contributory negligence, 207. 
 
 when applicable as defense in bailments, 207. 
 negligence of servants, 208. 
 
 unauthorized use of chattels, 209. 
 delivery, misdelivery, non-delivery, 210. 
 
 general rule that the bailee must redeliver, 210. 
 some exceptions noted, 310. 
 bailee liable for misdelivery, 210, 
 confusion of goods, 211. 
 
 when permitted by contract, 211. 
 criminal liability of bailee, embezzlement, 313. 
 termination of the relation, 313. 
 compensation, lien, 315. 
 BAILOR AND BAILEE — 
 
 parties to bailments, and who may be, 11, 13. 
 
 competency of parties, 13. 
 
 as to possession and knowledge of property, 19. 
 
 see Property (kind of subject of bailment); Bailment, Ordinary; 
 Eights, Duties and Liabilities Generally of Bailor and 
 Bailee (ch. Ill, Part I; also ch. IV); Liability of Bailor and 
 
752 ixDEx. 
 
 References are to sections. 
 
 BAILOR AND BAILEE (continued) — 
 
 Bailee when Bailment fob Sole Benefit of Bailor (oh. VI, 
 Part I); When fob the Sole Benefit of the Bailee (ch. VII, 
 Part I) ; Liability of Bailor and Bailee when Bailment for 
 Benefit of Both; Locatio Rei Bailments; Locatio Operis. 
 BAILMENTS FOR SOLE BENEFIT OF BAILOR (see Index, Bailments, 
 
 Ordinary). 
 BAILMENTS FOR SOLE BENEFIT OF BAILEE (see Index, Bailments, 
 
 Oedinary;. 
 BAILMENTS FOR THE BENEFIT OF BOTH BAILOR AND BAILEE 
 
 (see Index, Bailments, Ordinary). 
 BENEFIT (see Bailments, Ordinary). 
 BILL OF LADING — 
 
 as the subject of a pledge, discussed, Soij. 
 delivery by pledgor, 254. 
 indorsement in blank sufiBcient, 354 
 mere delivery of bill held enough, 255. 
 with draft attached, 256, 461. 
 how far bill negotiable, 257, 459. 
 boria fide holders of, who are, 258. 
 rights of, 259. 
 
 obtained from one apparently ovrner, 260. 
 see Common Carbiees of Goods. 
 bill of lading as proof, 462. 
 bill both a contract and receipt, 462. 
 as a receipt may be explained and modified, 462. 
 
 the bill in the hands of innocent consignee who has paid draft, 463, 463. 
 bill of lading, description and office of, 458. 
 carrier's liability for goods stated in the bill, 463. 
 
 see Common Carriers of Goods (ch. V, Part V); Pledge and 
 Pawn; Non-negotiable Instruments, 253, 254, 356, 357, 258. 
 BOARDING-HOUSE KEEPERS, 336, 387 (see Innkeepers). 
 BROKER — 
 
 stocks held on margins, purchased by broker, 320. 
 see Pledge and Pawn, 320, 821, 322. 
 BURDEN OF PROOF (see Actions; Evidence). 
 CANAL COMPANIES — 
 
 are not common carriers, when, 427. 
 CARRIERS (Ch. I, Part V) — 
 definition of a carrier, 392 
 history of carriers. 393. 
 importance and scope of the subject, 394 
 carriers strictly a bailment relation, 395. 
 generally of mutual-benefit class, 395. 
 may be gratuitous carriers, 395. 
 
 carriers of two kinds: private and public or common, 396. 
 also carriers by water and carriers by land, 396. 
 Private or Special Carriers, 397. 
 
INDEX. 753 
 
 References are to sections. 
 CARRIERS (continued) — 
 
 do not belong to exceptional bailment class, 397. 
 
 duties and liabilities of private or special carriers, 398. 
 
 two kinds: carriers for hire and gratuitous, 398. 
 
 carriage of goods or passengers for hire, 399. 
 
 ordinary diligence required if for hire, 399. 
 
 may limit liability if free from fraud, 401. 
 
 increasing or diminishing liability, 400. 
 
 excused from liability, when, 403. 
 
 act of God, public enemy, inevitable accident, robbery, burglary, 
 
 larceny, excuses private carrier, 402. 
 compensation and lien of private carrier, 403. 
 may regulate compensation by contract, 403. 
 has no lien upon goods carried, 404. 
 private or special carrier without hire, 405. 
 liable for gross negligence, 405. 
 Public ok Common Carriers (Ch. II, Part Y) — 
 exceptional bailees, 80. 
 mutual-benefit bailments, 114. 
 locatio operis mercium vehendarum, 134. 
 when a warehouseman, 182, 183. 
 definition of a common carrier, 406. 
 first essential requisite of, 407. 
 must undertake to carry for all, 407. 
 cannot select customers, 407. 
 second essential: if refuses, action will lie, 408. 
 the true test, 409. 
 
 may limit employment to certain kind of property, 410. 
 as freight and passenger or express matter, etc., 410. 
 third essential: carriage must be for hire, 411. 
 common carriers by water, 413. 
 who are common carriers, 413. 
 tugs and tow boats, 414. 
 are they common carriers, 415. 
 cases holding affirmative and negative, 415. 
 ferry boats, 416. 
 Common Carriers by Land, 417. 
 hackmen and omnibusmen, 418. 
 truckmen, cartmen, owners of wagons, 419. 
 street-car companies, 430. 
 
 express companies, fast-freight lines, dispatch companies, 431, 433. 
 transfer companies, 483. 
 baggage-delivery companies, 433. 
 railroad companies, 434. 
 receivers and trustees, 435. 
 
 not all railroad companies common carriers, 426. 
 who are not common carriers, 437. 
 warehousemen and forwarding agents not, 437. 
 48 
 
754 INDEX. 
 
 References are to sections. 
 
 CARRIERS (continued) — 
 
 sleeping-car companies. 437. 
 
 mail contractors, 437. 
 
 canal companies to certain extent, not, 437. 
 Carriees op Goods — Some Essentials Fixing Liability (Ch. Ill, 
 Part V). 
 
 some presumptions, 438. 
 
 certain facts must be proven to fix liability, 429. 
 
 delivery of property for transportation, 430. 
 
 delivery a primary essential, 430. 
 
 surrendering the entire control of goods, 430. 
 
 delivery for immediate shipment, 430. 
 
 ■when delivered and received for immediate shipment liability com- 
 mences, 481. 
 
 when liability commences, 431. 
 
 when goods really in transit, 431. 
 
 carrier may by reasonable regulations fix place of delivery for shiii- 
 ment, 431. 
 
 what not a delivery, 431. 
 
 leaving on platform or dock, or along road in an unusual place, not 
 a delivery, 431. 
 
 usage and custom as to delivery, 433. 
 
 notice of goods delivered, effect of, 433. 
 
 time of delivery, 434. 
 
 by whom must be made and to whom, 435, 436. 
 
 apparent authority generally sufficient, 437. 
 
 facts must be clear showing such authority, 437. 
 
 delivery must be to carrier or to one having actual or apparent au- 
 thority, 437. 
 
 agents of carrier authorized to receive, 438. 
 
 several kinds mentioned, 438. 
 
 constructive delivery of goods, 439. 
 custom of carrier may govern, 439. 
 
 rules permitting constructive delivery must be applied with 
 great caution, 440. 
 Fixing the Liability op the Carrier (Ch. IV, Part V). 
 
 the object of the chapter, 441. 
 
 what must the carrier receive and carry, 442k 
 
 limitation of general rule, 443. 
 
 line or kind of business fixes obligation to receive and carry, 443. 
 
 reasonable rules and regulations, may make, 443. 
 
 as to how goods shall be packed, 443. 
 
 some legal excuses for refusing to receive and carry, 444. 
 
 may fix time and place for receiving, 445. 
 
 excuse that have no facilities for carrying goods, 446. 
 
 to what extent must furnish facilities, 446. 
 
 extraordinary occasions, press of business, 447. 
 
 ordinary requirements, must meet, 447. 
 
INDEX. 755 
 
 Eeferenoes are to sections. 
 
 CARRIERS (continued) — 
 
 cannot arbitrarily refuse to receive and ship, 448. 
 enforcing the receiving of goods for shipment, 449. 
 acceptance by the carrier, 450. 
 when delivery and acceptance complete, 451. 
 bill of lading receipt not requisite to bind carrier, 452. 
 action for refusal to accept and ship, 453. 
 as to tender or payment of freight before action, 454. 
 who may bring the action, 455. 
 liability for refusing to receive and ship, 456. 
 duty to provide proper vehicles for the shipment, 457. 
 what would be determined proper vehicle, 457. 
 Fixing the Liability of Caeriek — The Bill op Lading (Ch. V, 
 Part V). 
 the bill of lading, description and office of, 458. 
 negotiability of bill of lading, 459. 
 consignor may consign goods to himself, 460. 
 bill of lading with draft attached, 461. 
 copy of bill of lading and draft, 461. 
 bill of lading as proof, 462. 
 bill both a contract and a receipt, 463. 
 as far as it is a receipt may be explained and modified, 462. 
 where shipper obtains bill but really fraudulent on shipper's part, 
 
 no goods delivered, 463. 
 such bill in hands of innocent consignee who has paid draft, is 
 
 carrier liable, 463. 
 authorities not harmonious, 463. 
 some courts hold carrier estopped frem denying contents of bill of 
 
 lading, 468. 
 that carrier liable for goods stated in bill of lading, 463. 
 weight, condition, contents, value, conclusiveness of bill as to, 464. 
 who may issue bill for carrier, 465. 
 Liabilitt and Limitations Upon the Liability (Ch. VI, Part V). 
 
 liability of the common carrier, 466. 
 
 is at common law that of an insurer, 466. 
 
 limitations at common law, 466. 
 
 reasons for liability, 467. 
 
 inanimate and animate freight, 468. 
 
 extent of liability affected by kind of freight, 468. 
 act of Qod, when loss or injury result of, 469. 
 
 definition of act of God, 55, 469. 
 
 will not excuse carrier from all care, 470. 
 
 duty to make loss as small as possible, 470. 
 
 ordinary care required to protect goods injured by, 470. 
 
 act of God must be conclusive and proximate cause, 471. 
 
 act of God, what will and what will not excuse — summary, 
 472. 
 
 act of God; burden of proof, 473. 
 
766 INDEX. 
 
 Eeferences are to sections. 
 
 CARRIKRS (continued) — 
 
 public enemy, defined, 474 
 
 diligence required of carrier in such case, 475. 
 diligence required, even though property injured, 476. 
 strikers, rioters and robbers not the public enemy, 477. 
 Where the Liability Arises from Loss or Injury the Result op 
 THE Act of the Shipper. 
 
 reason of the liability of the carrier. 478. 
 
 contributory negligence, applies, 479. 
 
 improperly marking goods by consignor, 480. 
 
 improperly packing or loading goods, 481. 
 
 neglect of shipper to disclose contents or value, 483. 
 
 fraudulent, not to disclose in some cases. 483. 
 
 intermeddling on part of shipper, 483. 
 
 negligence of the carrier, 484. 
 Where the Loss or Injury Caused by Inherent Nature of 
 Property. 
 
 the exception, 485. 
 
 animate freight, 486. 
 Carriers op Live-stock, 487-491. 
 
 the exception applies, 487. 
 
 Michigan rule, not common carriers, 488. 
 
 duty of carrier of live-stock, 489. 
 
 facilities for shipping live-stock must be furnished, 489. 
 
 feed and water, 489. 
 
 running of train and duties incident, 489. 
 
 United States statute as to duties of carrier, 490. 
 
 shipper must deal fairly with carrier, 491. 
 
 injury resulting from neglect to so deal, 491. 
 Where the Loss or Injury Result of Exercise of Public Au- 
 thority. 
 
 reason for exception, 493. 
 When Loss or Injury Result of Deviation or Delay (Ch. VII, 
 Part V). 
 
 implied undertaking of carrier, 493. 
 
 to transport within reasonable time, 493-496. 
 
 to transport by his own route, 493. 
 
 bound to know when he receives goods that he can ship them, 493w 
 
 cannot receive and hold in warehouse, 493. • 
 
 if press of business, may be excused, etc., 493. 
 
 notice to the carrier, 494 
 
 if carrier has notice goods are to fill contract, 494 
 
 when not governed by rule that damage too remote, 494. 
 
 if property understood to be shipped for immediate use, 494 
 
 unreasonable delay, what, 495. 
 
 reasonable diligence, 496. 
 
 delay from deviation from route, 497. 
 
 such deviation act of God, public enemy, 498. 
 
INDEX. 767 
 
 Eeterenoes are to seotiona. 
 
 CARRIERS (continued) — 
 
 duty often to deviate from course, 499. 
 
 strikers, deviation for, 500. 
 
 perishable goods, may discriminate for, 501. 
 
 goods after disaster, duty of carrier, 502. 
 Contract Regulating the Transportation of Goods (Oh VIIL 
 Part V). 
 
 object of the chapter, 503. 
 
 imposing obligations upon carrier, 504. 
 
 act of God and other causes not excuse for fulfilling contract, when, 
 504, 505. 
 
 contract by certain route, must so carry, 505. 
 
 if loss by another route, carrier liable when, 505. 
 
 contract to deliver in certain time, 506. 
 
 contract to carry by water not answered by carriage by land, 507. 
 
 when carriage is fault of shipper, 508. 
 Contract LmiTiNG the Liability of the Carrier, 509. 
 
 cannot limit liability when result of negligence of carrier or serv- 
 ants, 510. 
 
 rule in different states as to limiting liability, 511. 
 
 limiting as to amount, 513. 
 
 consideration of contract for limiting liability, 513. 
 
 option of shipper to accept contract limiting, 514 
 
 shipper may insist that carrier's liability be that of an insurer, 514. 
 
 contract must be reasonable, fair, without fraud, 515. 
 
 contract limiting, how made, 516. 
 
 limiting time for presenting claims, 517. 
 
 construction of contract limiting liability, 519. 
 
 contract implied from notice, 520. 
 
 limiting by general notice, 520, 521. 
 
 notice written or printed on bills of lading, 533. 
 
 representations of the shipper, 523. 
 
 when limitation of contract inures to connecting carrier, 524, 
 
 English rule, limitation by notice, 525. 
 
 act of parliament regulating as to notice, etc., 525. 
 
 the result of the act, 526. 
 
 carrier liable only over own line except contract otherwise, 537. 
 
 if no contract for liability beyond own line, 528. 
 
 English rule, 539. 
 
 if goods directed beyond linie, contract implied, 529. 
 
 decisions of states not harmonious, 580. 
 
 some states holding English rule, 530. 
 
 conditions, etc., through shipment implied, 581. 
 Connecting Carriers, Who Are, 533. 
 
 relation between shipper, initial and connecting carriers, 533. , 
 
 duty of connecting carrier, 584. 
 authority to bind connecting carrier, 535. 
 against which carrier shall it be brought, 536. 
 
758 INDEX. 
 
 Eeferences are to sections. 
 
 CARRIERS (continued) — 
 
 Compensation — Disceimination — Lien (Ch. X, Part VX 
 
 compensation of carrier, 537. 
 
 amount depends upon goods delivered, 538. 
 
 if prevented from delivery by act of God, 5"8. 
 
 carrier's special security in and right to possession of, 539. 
 
 carrier may protect his possession, 540. 
 
 carrier may insure the goods, 541, 
 
 when can sell the goods, 542. 
 
 when goods perishable and cannot carry through, 543. 
 
 In case of disaster, 543. 
 
 amount of compensation can charge, 543. 
 
 discrimination in charges, 543. 
 
 right to collect advances made to connecting carriers, 544. 
 
 who is liable to carrier for freight, 545. 
 
 when only carried part of the distance, 546. 
 
 pro rata itineris, 546. 
 Discrimination. 
 
 law forbidding, applies to all branches, 548. 
 
 relates to facilities for shipping, 549. 
 
 discrimination that is forbidden, 550. 
 
 regulation by statute of state, 551. 
 
 interstate commerce act, 552. 
 The Lien of the Carrier. 
 
 similar to the lieu of bailee, 553. 
 
 when does the lien attach, 554. 
 
 when shipment made by one without authority, 547, 555. 
 
 for what charges lien attaches, 556. 
 
 contract for shipment must be fulfilled, 557. 
 
 how lost, satisfied or discharged, 558. 
 
 lien satisfied, 559. 
 
 lien discharged, 560. 
 Termination of Carrier's Liability — Liability as Warehouse- 
 man, How Discharged (Ch. XI, Part V). 
 
 delivery of goods to consignee, 561. 
 
 may demand bill of lading before delivery of goods, 563. 
 
 rules as to delivery applicable to all carriers, 563. 
 
 requirements of carrier on arrival of goods, 564. 
 Express Companies. 
 
 requirements as to delivery, 565. 
 
 personal delivery, when, 565. 
 
 express company, warehouseman when, 566. 
 
 liability as warehouseman, 567. 
 
 duty of when goods refused by consignee, 568. 
 
 should notify consignee of refusal, 568 
 
 goods sent C. O. D., 569. 
 
 when consignee refuses to receive, 570. 
 
 right of consignee to inspect goods, 571. 
 
 carrier may assist in preventing fraud of consignor, 572. 
 
INDEX. Y59 
 
 References are to sections. 
 
 CARRIERS (continued) — 
 Carriers by Water. 
 
 termination of liability, 573. 
 
 carrier must be diligent in giving notice to consignee, 574. 
 must provide suitable place for landing and caring for goods, 575. 
 actual notice must be given, 576. 
 notice must be to receive goods at proper time, 576. 
 contract, usage, course of dealing, 577, 578. 
 
 consignee cannot prolong liability by inattention to notice, 579. 
 must attend to notice in reasonable time, 579. 
 Carriers by Railroad. 
 
 termination of liability, 580. 
 
 must deliver to consignee or person entitled to receive, 580. 
 
 liability for misdelivery, 580. 
 
 three distinct views as to termination of liabilitj', 581. 
 
 (1) The so-called Massachusetts rule, 581, 583. 
 
 (3) The New Hampshire rule, 583. 
 
 (3) The rule requiring notice to consignee, 584 
 what will excuse delivery, 585. 
 the causes that excuse liability, 585. 
 Stoppage in Transitu, 586. 
 
 law favors right of stoppage in transitu, 587. 
 some requisites to exercising rights, 588. 
 how exercised, notice, to whom, 589. 
 how can the right be defeated, 590. 
 lien of the carrier for freight has priority, 591. 
 duty of carrier when notice of stoppage in transitu, 593. 
 when carrier's control and liability terminates, 593. 
 Carriers of Passengers (Ch. I, Part VI). 
 the relation, 593. 
 who are passengers, 594. 
 definition, 594 
 
 status fixed by intention, 595. 
 
 not essential that persons should be in carrier's vehicle, 596. 
 passenger while at station, 596. 
 when entering vehicle, 596. 
 
 persons waiting in stations for arrival of passenger, 596. 
 express messengers and mail agents, 597. 
 mail agents are passengers, 598. 
 drovers when passengers, 599. 
 workmen and employees, 600. 
 
 requisite that carrier must receive person as a passenger, 601. 
 reasonable regulations, persons violating, 603. 
 violation of regulations as to boarding trains, etc., 603. 
 when violation of regulation excuses liability, 603. 
 payment of fare not a requisite to become a passenger, 603, 
 fraud on carrier as to fare, 604. 
 termination of relation, 605. 
 
Y60 INDEX. 
 
 References are to sectioiia. 
 
 CARRIERS (continued) — 
 
 passenger on street-car, 606. 
 when becomes a passenger, street-car, 606. 
 when ceases to be a passenger, street-car, 606. 
 reasonable regulations, street-car, 607. 
 passenger must occupy usual place provided, 608. 
 Who Must the Carrier Accept and Carry — Certain Duties of 
 Carriers and Passengers (Ch. II, Part VI). 
 carriers quasi-puhlio servants, 009. 
 carrier bound to receive and carry all who apply, 609. 
 exceptions to the general rule, 610. 
 carrier must protect passengers, 611. 
 right to separate passengers as to sex, 613. 
 separation of races as a reasonable regulation, 613. 
 constitutional amendment, 613. 
 interstate commerce commission, 613, note. 
 civil rights cases, 618. 
 
 certain duties incumbent on carrier, implied obligation, 614 
 duty as to vehicle, machinery, roadway, track, etc., 615. 
 as to stational facilities, 616. 
 as to running and managing trains, 617- 
 passenger's duty, 618. 
 Passenger Carrier's Liability (Ch. Ill, Part VI). 
 the purpose of the chapter, 619. 
 general principles governing the liability: 
 
 the basis of the liability, 620. 
 
 failure of carrier to do his dutj', basis, 630. 
 
 diligence of carrier in employment of servants. 631. 
 
 safe and sufficient means of transportation, 623. 
 passenger elevators, 633. 
 
 passenger carriers must adopt approved mac)>inery, 634 
 
 latent defects in, liability affected by, how, 635. 
 
 English rules as to, 636. 
 
 defects discoverable by manufacturers, 627. 
 liability growing out of duty to passengers while in transit: 
 
 the degree of care required, 628. 
 
 depots, waiting-rooms, approaches and exits from premises 
 and vehicles, 639, 680. 
 
 overloading and overciowding vehicles, 631. 
 
 abuse of passengers, liability of carrier for, 632. 
 
 fares, tickets, contract for carriage, 633. 
 
 conditions printed on the ticket, 633. 
 
 consideration for such agreement, 633. 
 
 excursion tickets, conditions in, etc., 633. 
 
 acceptance of such ticket, accepts conditions, 633, 
 
 when passenger violates conditions, 688. 
 
 when the carrier or agent is at fault, 684 
 
 when passengers' violation attributable to carrier, 634 
 
INDEX. 761 
 
 • References are to sections. 
 
 CARRIERS (continued) — 
 
 exhibition or surrender of tickets, 635. 
 
 when ticket is lost or mislaid, 636. 
 
 reasonable time to find ticket, 636. 
 
 stop-over tickets, time limit, train limit, 637. 
 
 .continuous journey, the presumption, 637. 
 
 tickets over connecting lines, 638. 
 
 may stop over at termination of each line, when, 688. 
 
 time within which must use the ticket, 638. 
 
 passenger delayed by wreck or fault of carrier, 639. 
 
 tickets, passes, etc., fraudulently obtained or used, 640, 
 Sleeping-car Companies, 641. 
 
 as to becoming liable for carriage of passengers, 641. 
 not liable as common carriers, 641. 
 their liability, what is it, 641. 
 not liable as innkeeper, 641, 643. 
 baggage, liability for, 641. 
 
 ejection of passengers and intruders from vehicle of carrier, the 
 right of, the manner of, by whom. 643. 
 
 numerous causes for, 641 
 
 can only be expelled for misconduct, 644 
 
 refusal to produce ticket. 644. 
 
 drunkenness, disorderly conduct, offenses, crimes and misde- 
 meanors, 644. 
 
 father refusing to pay for child, may eject both, 644. 
 
 as to passengers relying upon statements of servants, 645. 
 
 tendering fare to avoid ejection, 646. 
 
 when tender of fare will not avoid, 646. 
 
 the manner of ejecting the passenger, 647. 
 
 no more force than necessary, 647. 
 
 must take into account condition of passenger, 648. 
 When Cabeier Excused from Liability. 
 the act of God, the public enemy, 649, 650. 
 contributory negligence. 651. 
 strangers, trespassers, intruders, 653. 
 carrier must exercise certain care for, 653. 
 failure to warn passenger of danger, 653. 
 when question of fact for jury or law for court, 654 
 whether question of law or fact, 655, 656. 
 passenger sometimes excused for negligence, 657. 
 carrier's failure to carry within stipulated time, 658. 
 Limitations of Liability (Ch. IV, Part VI). 
 
 three classes of holdings as to right to limit, 659. 
 
 (1) cannot where injury result of negligence of carrier or serv- 
 ants, 660. 
 
 (3) can limit even though injury result of such negligence, 661. 
 
 (3) can limit for negligence, but not for gross n egligence, 663. 
 weight of authority as to right to limit liability, 663. 
 
762 INDEX. 
 
 References are to sections. 
 
 CARRIERS (continued) — 
 
 free passes, limiting liability, 664 
 
 if pass issued for a consideration, 664. 
 
 where pass is gratuitous, 664 
 
 where limitation signed by recipient of, 664 
 
 limitation growing out of that which is incident to the car- 
 riage, 665. 
 one riding on freight train assumes certain risk, 665. 
 
 see Baggage, oe the Passengee's Effects, Ch. V, Part IV. 
 CHATTEL MORTGAGE — 
 priority over lien, 165. 
 pledge distinguished from, 373. 
 CLASSIFICATION OF BAILMENTS, 26. 
 Roman classification, 26. 
 chart showing classification, 31. 
 
 chart classifying and showing duties and liabilities, 37. 
 COLLATERAL SECURITY (see Pledge oe Pawn, 330, 331, 286, 241, 243, 
 
 244 245, 246, 247, 248, 249, 350, 373). 
 COLLECT ON DELIVERY, 569, 570, 571, 573 (see Goods Sent C. O. D., 569; 
 
 Carriers op Goods). 
 COMMODATUM, 36, 28 (see Bailments, Ordinary). 
 COMMON-LAW FORECLOSURE OF PLEDGE, 302. 
 COMPENSATION — 
 bailee's right to, 65. 
 bailee's lien for, 66, 68. 
 possession of property essential to, 70. 
 finder of property may have, 71. 
 extinction of lien, 72. 
 how waived, 73. 
 
 when possession claimed for reason inconsistent with, 73. 
 by parting with possession of property, 73. 
 cannot be revived if lost, 74. 
 enforcement of bailee's lien, 76. 
 enforcement and foreclosure, 76. 
 bailor's right to, 75. 
 in locutio bailments, 161, 162. 
 quantum, meruit, 147. 
 if failure fault of bailor, 148. 
 compensation and lien of innkeeper, 375, 384 
 compensation and lien of carrier, 537, 560. 
 
 see Passenger Carriers, 603; Ejecting Passenger, 644; Tender- 
 ing Fare to Avoid Ejection, 646; Baggage, Pay foe Excess, 
 675. 
 fare paid, consideration for carriage of, 675. 
 lien of innkeeper lost or waived, 385. 
 lien lost, 386, 387. 
 lien of warehousemen and custodice bailees, 315. 
 
INDEX. 763 
 
 Eeterences are to sections. 
 
 COMPENSATION (continued) — 
 lien of agisters, 163, 164. 
 when chattel mortgage takes precedence of, 165. 
 
 see Bailments, Ordinary; Innkeepers; Carriers. 
 CONNECTING CARRIERS — 
 of goods, 532, 533, 534, 535, 536. 
 of passengers, 637, 638, 639, 640. 
 CONSIGNMENT — GOODS ON A BAILMENT. See Common Carriers 
 
 OP Goods, 430, 431, 440; Bill of Lading (Ch. V, Part V). 
 CONTRACT (see Bailment, Ordinary, 34, 45) — 
 
 bailee cannot contract against his own fraud or gross negligence, 60. 
 
 bailment a contract relation, 93. 
 
 pledge and pawn, 316, 230. 
 
 innkeeper's limitation of liability, 359, 373, 374. 
 
 carriers, increasing and diminishing liability by contract, 400, 404, 442, 
 
 509, 513. 
 consideration of contract for limiting, 513. 
 must be reasonable and fair, without fraud, 515. 
 contract limiting, how made, 516. 
 for limiting time for presenting claims, 517. 
 construction of contract limiting, 519. 
 contract implied from notice, 530. 
 as to limiting by general notice, 530, 521. 
 notice written or printed on bills of lading, 523. 
 no contract for liability beyond own line, 528. 
 English rule, 529. 
 
 decisions of states not harmonious, 530. 
 conditions, etc., for through shipment implied, 581. 
 cpntract for shipment must be fulfilled, 557. 
 
 carriers by water, contract as to delivering goods, usage, course of 
 dealing, 577. 578. 
 see Passenger Carriers; Contract Limiting Liability; Pas- 
 senger Riding on Pass, 644. 
 as to time agreed to complete journey. 658. 
 limitations of liability, 659, 663. 
 baggage, implied contract to carry, 675. 
 if free pass, no consideration, 680. 
 
 see Cakriees of Goods; Innkeepers. 
 CONTRACTS REGULATING THE TRANSPORTATION OP GOODS 
 
 (Ch. VIII, Part V), 503, 536. See Carriers of Goods. 
 CONTRIBUTORY NEGLIGENCE. See Negligence or Diligence; 
 Pledge or Pawn; Innkeepers; Carriers of Goods; Carriers of 
 Passengers; Carriers of Baggage; Actions; Negligence; Con- 
 tribution. 
 CONVERSION, 64. 
 
 what amounts to, 64. 
 
 when assignment by bailee considered as, 131. 
 
 bailor may bring action for, on failure of bailee to redeliver, 61. 
 
764 INDEX. 
 
 References are to sections. 
 
 CONVERSION (continued) — 
 
 what constitutes, 137, 138. 
 
 assertion of dominion, etc., 127, 128. 
 
 as driving horse beyond place hired for, 187. 
 
 see Bailments, Ordinaet; Locatio Operis; Warehousemen; 
 Storage-house Keepers; Safety aud Deposit Vaults. 
 CORPORATIONS — 
 
 may become bailor or bailee, 16. 
 
 act through agents, 16. 
 
 the act of the agent is ultra vire.i, 16. 
 
 property received though agent's act is unauthorized, 16. ^ 
 see Bailments, Ordinary; Pledge or Pawn. 
 CRIMINAL — 
 
 liability of bailee, 213. 
 CUSTODY BAILMENTS. See Bailments. Ordinary; Locatio Custodi^ 
 
 Bailments (Ch. XI, Part I, sees. 107, 206). 
 CUSTOM (see Bailment; Pledge and Pawn) — 
 
 custom, usage, etc., stock brokers, 331. 
 
 foreclosure of stocks on margins, 333. See Contracts. 
 DAMAGES. See Actions. 
 
 DEATH. See Termination of Bailment by, 83. 
 
 DELIVERY (see Bailments, 13, 19, 69: Pledge and Pawn, 237a!, 238, 239, 
 240, 247, 263, 263, 265, 270, 371, 328; Innkeepers, 860, 361, 363; Carriers 
 OP Goods, 430. 431, 433, 433, 434, 435, 436, 437, 438) — 
 
 delivery of goods, constructive, 19, 439. 
 
 custom of carrier as to, governs, 439. 
 
 rules permitting constructive, applied with caution, 440. 
 
 delivery of goods to consignee, 561. 
 
 carrier may demand bill of lading before such delivery, 563. 
 
 rules as to delivery applicable to all carriers, 563. 
 
 required by carrier on arrival of goods, 564. 
 
 express companies, requirements as to delivery, 565. 
 
 C. 0. D. goods, 569. 
 
 carrier by water, 573, 579. 
 
 carrier by railroad, must deliver to consignee, 580. 
 
 liability for misdelivery, 580. 
 
 requirements as to delivery, 581, 585. 
 
 baggage, 681, 682, 683, 686. 
 
 steamship companies, baggage, 686, 688. 
 DEPOSITS — 
 
 depositiim, 87. 
 
 use of deposit. 88. 
 
 special, not general, 89. 
 
 <2«osi-deposits, 90. 
 
 distinction between depositum and inandatum, 93. 
 
 safe-deposit and trust companies, 196, 197. 
 
 nature of and diligence required, 198. 
 
 general deposits in banks, 51, 89. 
 
 as to diligence required, 51, 92. 
 
INDEX. 765 
 
 Eeferences are to sections. 
 DEPOSITARY, 87, 88, 94, 99. 
 DEPOTS. See Passenger Carriers, 616, 629, 630. 
 DEVIATION AND DELAY (Ch. VII, Part Vj. See Carriers Off Goods, 
 
 493, 503. 
 DILIGENCE — 
 
 bailments, degree of, required, 86. 
 what is diligence, 38. 
 definition generally accepted, 39. 
 each case ruled by its own circumstances, 40. 
 high diligence, gross negligence, 41. 
 when diligence and negligence questions of law, 4a 
 classification of conditions and circumstances, 43. 
 in bailments for sole benefit of bailor, 94 
 for sole benefit of bailee, 103. 
 in mutual bailments, 130, 143. 
 loeatio rei bailments, 130. 
 locatio operis bailments, 155, 156. 
 what is ordinary, for skilled workmen, 157, 158. 
 locatio ciLstodice bailments, diligence required, 198, 199, 300 
 diligence must keep pace with improvements, 203. 
 proof of, 204. 
 
 does the burden of proof shift, 305, 206. 
 pledge and pawn, diligence, 375, 293, 316. 
 innkeepers, 352, 854 
 postal service, 390. 
 carriers, private carriers, 399. 
 private carriers, gratuitous, 405. 
 public or common carriers, 896, 466, 475, 476. 
 carriers of passengers, 614, 617, 620. 
 DISORDERLY PERSONS. See Innkeepers, 843, 344, 348; Carriers of 
 
 Passengers, 644, 647, 648. 
 DISCRIMINATION. See Innkeepers, 343; Carriers op Goods, 442, 443, 
 
 444; Carriers of Passengers, 609, 610, 611, 613, 613. 
 DROVERS — 
 
 riding on pass, 660. 
 
 contract with carrier limiting liability, effect of, 660. 
 a consideration for pass to carrier, 664. 
 see Carriers of Passengers, 599. 
 DRUNKENNESS — 
 innkeepers, 344, 348. 
 
 carriers of passengers may eject for, 644 
 duty of carrier toward, 647, 648. 
 EJECTION — 
 
 passenger carriers, the right, the cause, the manner, by whom, 643. 
 numerous causes, 644 
 
 misconduct, refusal to pay fare, produce ticket, drunkenness, disor- 
 derly conduct, committing offenses, crimes or misdemeanors on other 
 passengers, gamblers, persons affected with disease, refusing to com- 
 ply with reasonable rules and regulations, 644 
 
T6G INDEX. 
 
 References are to sections. 
 
 EJECTION (continued) — 
 
 passenger's reliance upon servants and agents, 645, 
 
 tendering fare to avoid ejection, 646. 
 
 when carrier may refuse pay or tender of fare, 646, 
 
 the manner of ejecting, 647. 
 
 no more fare than necessary, 647. 
 ondition of the passenger must be taken into account, 648. 
 
 when parent must pay fare for, 644. 
 EQUITY — 
 
 foreclosure of pledge in, 310, 311. 
 
 proceedings in, to enforce the receiving and shipping of freight, 449. 
 
 will enforce transfer of stock on books, when, 349, 326. 
 
 when stock entered in books of company as pledgee's property, equity 
 will undo, 326. 
 
 when pledgee refuses to reconvey stocks so entered, equity will decree 
 it, 326. 
 EVIDENCE. See Actions. 
 EXPENSES — 
 
 bailments, ordinary; extraordinary expense, when can pay, 110, 132. 
 
 ordinary expense, bailee must pay, 110. 
 
 extraordinary, may collect of bailor, 110. 
 
 extraordinary expenses, borrower not compelled to pay, 112. 
 
 extraordinary expenses rendered, must pay, 112. 
 
 pledge and pawn, pledgee must pay usual and necessary expenses, 291. 
 extraordinary, pledgor must pay, 291. 
 pledgee must make usual and necessary repairs, 291. 
 unusual improvements, pledgor must pay, 291. 
 EXPRESS COMPANIES — 
 
 are common carriers, 421. 
 
 expected to deliver consignments to consignee in person, or at resi- 
 dence or place of business, 421, 565. 
 
 until delivered, unless reasonable excuse, liable as common carriers, 565, 
 
 as to what effort company must make to deliver, 565. 
 
 must make reasonable effort to deliver, 565. 
 
 when company becomes warehouseman, 567. 
 
 (1) when goods delivered not for immediate shipment, 567. 
 
 (2) when cannot for good reason be delivered at destination, 567. 
 duty when goods refused by consignee, 568. 
 
 should at once notify consignor, 568. 
 goods sent C. O. D., 569. 
 as to payment for goods so delivered, 569. 
 when company liable for, 569. 
 
 when consignee fails to receive the goods, or refuses, 570. 
 consignee's right to inspect goods so sent, 571. 
 company may assist to prevent fraud of consignor, 572. 
 as where goods sent are valueless, company may allow inspection, 573. 
 when collection made by company and goods found of no value, 572. 
 EXPRESS COMPANY'S RECEIPT, 482. 
 shipper bound by stated value in, 482. 
 
INDEX. 767 
 
 References are to sections. 
 
 FACTORS — 
 
 may be bailees, 8, 5. 
 
 belong to locatio custodice bailments, 189. 
 
 factors and commission merchants must exercise good faith and ordi- 
 nary diligence, 189. 
 cannot substitute other goods for goods delivered to him, 189. 
 must follow implicitly directions, 188. 
 must follow the general usage of trade, 189. 
 see Storage-house Keepers, 190, etc. 
 FAST-FREiaHT LINES, DISPATCH COMPANIES, ETC.— 
 
 are common carriers of goods, 433. 
 FERRIES. See Common Caeriees, 416. 
 FINDER — 
 
 may be bailor, 105. 
 may have lien on goods found, 71. 
 FORECLOSURE — 
 
 after default pledgee may foreclose, 396. 
 when pledge or corporeal property, 301 
 several ways of foreclosure, 301. 
 
 when may sell under power in contract of pledge, 303. 
 when power to sell implies, 303. 
 common-law foreclosure, 302. 
 sale must be public, 303. 
 notice of sale, 304, 306. 
 purchaser at sale, 305. 
 pledgor cannot compel pledgee to sell, 307. 
 his remedy is to redeem, 307. 
 as to surplus after sale, 308. 
 statutory foreclosure, 309. 
 in equity, 810, 311. 
 
 when property pledged negotiable instruments, 818. 
 not usual to sell at public auction, 313. 
 English rule, 314 
 
 pledgee must collect securities, 315. 
 pledgee must recover in an action on, 317. 
 securities liable to equities, 317. 
 compromise, 318. 
 when pledged property consists of stocks and bonds, 319. 
 stocks held on margins by corporations, 330. 
 as to foreclosure of, 330, 333. 
 FRAUD — 
 
 bailments, fraud will terminate, 80. 
 carriers. See Bill of Lading, 463, 468. 
 failure to disclose value of goods, 483. 
 contract limiting liability of carriers, 401, 515. 
 carrier of passengers, fraud on as to fare, 604» 
 FREIGHT TRAINS, 665. 
 GENERAL LIENS. See Liens. 
 
768 INDEX. 
 
 Eeterenoes are to sections. 
 
 GIFTS — 
 
 bailment or sale, 35. 
 GRAIN — 
 
 stored in elevator, exception to rules required, redelivery, 19. 
 
 for that mixed with other grain not evidence of sale, 34 and nota 
 
 see LocATio Custodi^ Bailments. 
 GRATUITOUS BAILMENTS, 33 (see Bailments for Sole Benefit of 
 Bailee, 102, etc.) — 
 death of bailee terminates, 83. 
 for sole benefit of bailor, 80. 
 
 see Index, Bailments. 
 GUESTS (see Index, Innkeepers; Guests, 334, etc.; BAaaAOE) — 
 who are, 334, 335. 
 guest or boarder, 336, 337. 
 
 personal presence of, not always necessary, 338. 
 leaving of horse and vehicle enough, 338. 
 taking lodgings only, may make one a guest, 339. 
 accommodations furnished not necessary to, 339. 
 mere visitor not, 340. 
 length of stay not material, 341. 
 must use inn for legitimate purpose, 343. 
 who must the innkeeper receive, 343. 
 limitations and exceptions, 344. 
 liability for refusing to receive, 345. 
 when may turn guest away, 346, 348. 
 as to loss of, innkeeper's liability, 343-350. 
 exceptions and limitations of liability, 350-358. 
 when property of goods for sale or show, 367. 
 limitations of liability of innkeeper for loss of property, 873. 
 
 may limit, but not for gross negligence, 373. 
 
 requiring guest to deposit valuables, 373. 
 
 reasonable regulations applicable to, 373. 
 
 must compensate innkeeper, 375. 
 
 lien upon property and baggage of, 375. 376. 
 
 when guest an infant, compensation, lien, 378. 
 
 when property belongs to third person, 379, 380. 
 
 when guest an agent, 381. 
 
 animate property, 383. 
 HACKMEN. See Omnibus. 
 HAGKMEN, CARTMEN AND OWNERS OF WAGONS — 
 
 are common carriers, 419. 
 HIRE — 
 
 bailments for, 114, 130. 
 locatio ret bailments, 131, 133. 
 locatio operis bailments, 134, 165. 
 locatio custodice bailments, 167, 315. 
 
 see Index, Bailments. 
 
INDEX. 769 
 
 Eef erenoes are to sections. 
 
 HIRE (continued) — 
 
 carriers may be gratuitous, 393, 405. 
 private for hire, 398, 399. 
 public or common carriers, 406, 407, 411. 
 compensation of carrier, 587, 546. 
 
 see Passenger Caeeiers; Sleeping-cae Companies. 
 HOTEX.. See Innkeepers. 
 INFANTS — 
 
 as party to bailment, 18. 
 1 A disability a shield, not a sword, 14. 
 I bailed property in possession Ojt, must care for, 14. 
 
 liable for tortious use of, 14. 
 INEVITABLE ACCIDENT. See Accident, Inevitable. 
 INNKEEPERS (Ch. I, Part III) — 
 inns, origin, history of, 329. 
 innkeepers, who are, 380, 831. 
 essential characteristics of, 333. 
 restaurants, cafes, are not inns, 333. 
 sleeping-car companies not innkeepers, 333. 
 Guests, Who Are, 334 (Ch. II, Part III), 
 
 distance traveled immaterial, 335. 
 
 guest or boarder, which, 336. 
 
 length of time, contract for rates, does not determine, 337. 
 
 personal presence of, not always necessary, 338. 
 
 leaving of horse and vehicle enough, 338. 
 
 taking lodgings only may make one a guest, 339. 
 
 accommodations furnished not necessary to render one a guest, 339. 
 
 mere visitor not a guest, 340. 
 
 length of time one remains immaterial, 341. 
 
 must use inn for legitimate purposes, 343. 
 
 if practicing illegal pursuits, not a guest, 343. 
 Who Must Innkeeper Receive as Guest, 343. 
 
 all who apply must be received, general rule, 343. 
 
 limitation and exceptions to this rule, 344 
 
 may refuse to receive if house is full, 844. 
 
 disorderly persons, may refuse to receive them, 344. 
 
 persons with contagious diseases, may refuse to receive them, 344. 
 Liability eoe Refusing to Receive Guest, 845. 
 
 when may turn guest out, 346. 
 
 when guest is taken ill with contagious disease, 347. 
 
 when guest is disorderly, 348. 
 Liability of the (1) Innkeeper, (3) of the Guest (oh. Ill, Part III). 
 
 liability of the innkeeper, 343. 
 
 several instances classified, 849. 
 
 an extreme case, Hulett v. Swift, 849. 
 
 extraordinary liability because of public policy, 350. 
 
 liability and exceptions analyzed, 851. 
 
 where loss by accidental fire, in no way fault of innkeeper, 353. 
 49 
 
770 INDEX. 
 
 References are to sections. 
 
 INNKEEPERS (continued) — 
 
 where loss occasioned by act of God or public enemies, 353. 
 
 where loss occasioned by irresistible force without fault of inn- 
 keeper, 354. 
 
 where loss occasioned by robbery, riots, etc., 355. 
 
 where loss from force from within, 356. 
 
 where loss by reason of inherent nature of property, 357. 
 
 where loss because of fault of guest or companion, 358. 
 Reasonable Regulations of Inn, 359. 
 
 limitation of liability by, 359. 
 What Propeety Innkeeper Liable for, 360. 
 
 owner of property must be guest and property within the inn, 361. 
 
 property within the inn, 362. 
 
 not necessary guest should bring property himself within the inn, 
 363. 
 
 when servant takes property within or without the inn, 363. 
 
 as loads of grain, or property given to hostler, 363. 
 
 theft by servant, 363. 
 
 if person sustaining loss be boarder or a guest, 364 
 
 if property lost the property of third person, 365. 
 
 corporation's property lost by an agent, 366. 
 Exceptions to Liability — Goods for Sale or Show, 367. 
 
 liability for personal injury to guest, 368. 
 
 defective or unsound premises, 369. 
 
 injuries from fire, liability for, 370. 
 
 unsanitary conditions, unwholesome food, 37L 
 Limiting Liability, 373. 
 
 may limit, but not for gross negligence, 373. 
 
 may limit by reasonable regulations, 373. 
 
 as requiring guests to deposit valuables, 373. 
 
 by notice to guest, 372. 
 
 must bring notice home to guest, 373. 
 
 liable as ordinary bailee, when, 373. 
 
 liable as gratuitous bailee, when, 374. 
 Compensation and Lien op Innkeeper (Ch. IV, Part III) — 
 
 compensation and lien, 375. 
 
 to what property lien attaches, 375. 
 
 the lien a common-law lien, 376. 
 
 compensation, amount of, 377. 
 
 when guest an infant, compensation, lien, 378. 
 
 third person's property, when lien attaches, 379. 
 
 subject of lien, holdings discussed, 380. 
 
 when guest agent, servant of bailee or owner, 381. 
 
 if in course of business of principal or bailor, lien attaches, 881. 
 Animate Property, when lien attaches, 383. 
 
 when property wrongfully in possession of guest, 383. 
 
 when property is stolen, lien cannot attach as against owner, 383. 
 
 lien generally fixed by statute, 384. 
 
INDEX. 771 
 
 References are to sections. 
 
 INNKEEPERS (continued) — 
 
 Lien Lost or Waived, How, 885. 
 
 by tender to the innkeeper of amount due, 385. 
 by placing the refusal to deliver on different grounds, 385. 
 by agreement to give to guest credit, 385. 
 by delivery of goods to third party, 385. 
 by vcroDgful sale or pledge of property by innkeeper, 385. 
 lien once lost cannot be revived, 386. 
 lien is not extended to boarding-house keeper, 387, 
 INSURANCE. 
 
 policy of subject of pledge, 266. 
 delivery a requisite, 267. 
 mere promise to deliver not enough, 267. 
 how delivered, 268. 
 
 by assignment of, entered on books of company, 268. 
 Indorsement in blank of policy and delivery, 269. 
 carrier may Insure the goods, 541. 
 
 if lost may collect the amount of insurance, 541. 
 all over amount due carrier inures to owner, 541, 
 warehouseman may insure the property, 177. 
 generally not bound to insure, 177. 
 but ordinary diligence might require it, 177. 
 INTERSTATE COMMERCE ACT, 553. 
 LIEN (Bailments) — 
 
 bailee's right to lien on property bailed, 65. 
 agreement necessary to create, 66. 
 if no statute or express contract, common-law lien, 67. 
 two kinds of liens, 68. 
 
 (1) particular or specific, 68. 
 
 (2) general lien, 68. 
 
 delivery necessary to establishment, 69. 
 
 possession obtained without consent of owner not suflScient to support, 
 
 69. 
 not necessary that delivery be actual, 69. 
 possession of property an essential to, 70. 
 finder of property may have, 71. 
 extinction of lien, payment or tender of debt, 73. 
 waiver of lien, 73. 
 
 waived by placing refusal to deliver on grounds inconsistent 
 with, 73. 
 
 by agreement to give credit, 73. 
 
 by voluntarily parting with possession of property, 73, 
 
 lien lost cannot be revived, 74. 
 
 indorsement of lien, 76. 
 LIEN (Innkeeper's)- 
 
 upon property infra hospitiwn, 375. 
 
 on animals and property of guest, 375. 
 
 not only for guest's keep but for keeping of animals or property, 875. 
 
 lien attaches to exempt property, 375. 
 
7Y2 INDEX. 
 
 References are to sections, 
 
 LIEN, Innkeeper's (continued) — 
 
 property of married women liable to, 375. 
 the English rule, 375. 
 the lien a common-law lien, 378. 
 LIEN (Carrier's) — 
 
 private carriers have no lien, 404. 
 discussion as to lien of private carrier, 404. 
 common carriers may have lien similar to bailee, 558. 
 special, not general, 558. 
 
 lien gives authority to retain goods till charges paid, 553. 
 when the lien attaches, 554. 
 
 when shipment of goods by one without authority, 555. 
 for what chattels the lien attaches, 556. 
 carrier's contract must be fulfilled, 557. 
 lien, how lost; satisfied or discharged, 558, 559, 560. 
 LocATio CusTODi^ Bailments — Warehousemen, Elevator Men, 
 Storage-house Men, Wharfingers, 315. 
 see Bailee's Lien. 
 LIMITATION OF ACTION (see Actions) — 
 
 limitation runs against pledgor, 280. 
 LIVERY-STABLE KEEPERS — 
 no lien at common law, 163. 
 general lien by statute, 164. 
 liability for injury to hirer of livery, 125. 
 LIVE STOCK See Carriers of Goods, 486: Carrying of Live-stock 
 
 287-291. 
 LOAN. See Bailments — For Sole Use of Bailor; For Sole Use of 
 
 Bailee; Mutual Bailments; Locatio Bailments. 
 LOCATIO BAILMENTS. See Locatio Rei, 121, 183; Locatio Operis, 134- 
 
 166; Locatio Custodi^, 167-215. 
 LODGING-HOUSE. See Innkeeper. 
 LUGGAGE. See Baggagk 
 MANDATUM, 26, 28, 86. 
 
 definition, how created, 26, 86. 
 see Bailments. 
 MODERN CLASSIFICATION OF BAILMENTS, 37. 
 MORTGAGE — 
 
 chattel, priority over lien, 165. 
 mortgage subject of pledge, 370. 
 MUTUUM, ROMAN, 8. 
 NEGLIGENCE. See Diligence. 
 what is negligence, 38, 40. 
 gross negligence, 41. 
 a question of law and fact, 43. 
 negligence of skilled bailee, 49. 
 of banks and banking officers, 51. 
 how determined, 53. 
 
 see Bailment for Sole Benefit op Bailor, 94; For Sole Bene- 
 fit op Bailee, 103; Mutual Benefit Bailments, 130, 143. 
 
INDEX. 773 
 
 References are to sections. 
 
 NEGLIGENCE (continued) — 
 
 in case of special deposits, 53. 
 
 bailee may modify liability for. 59, 60. 
 
 bailee cannot excuse gross negligence, 60. 
 see LocATio Bailments. 
 
 proof of, in locatio ciistodice, 204. 
 
 burden of proof of, 204. 
 
 does burden of proof of, shift, 205, 206. 
 
 when does, in bailment cases, 307. 
 see Contributory Negligence. 
 NEGLIGENCE, CONTRIBUTORY — 
 
 bailments, contributory negligence as defense in, 207. 
 
 warehousemen, storage-house keepers, contributory negligence, 207. 
 
 carriers, contributory negligence, defense, 479. 
 
 property lost on account of negligence of shipper, 479, 480, 481, 483. 
 
 passenger carriers, contributory negligence a defense, 661. 
 see Actions, 722. 
 NEGROES. See Carriers of Passengers; Discrimination, 613. 
 NEGOTIABLE PAPER — 
 
 pledging of ^Ch. II, Part II). 
 
 subject of pledge or pawn, 241. 
 
 delivery necessary, 241. 
 
 equitable assignment. 243. 
 
 good pledge as between parties, 243. 
 
 pledgee holder for value, when, 343. 
 
 rules applicable to pledgor obtained in pledge of, 343. 
 
 pre-existing debt as consideration, 244, 
 
 when sufficient consideration, 344. 
 
 foreclosure of such pledge, 313. 
 
 not usual to sell at public auction, 313. 
 
 Englisli rule, sale same as if corporeal property, 314 
 
 pledgee's recourse to pledged securities, what, 315. 
 
 duty of pledgee to collect securities, 315. 
 
 must use diligence in collecting, 316. 
 
 liable for negligence in collecting, 316. 
 
 pledgee may recover in an action on, 317. 
 
 securities liable to equities in maker, 317. 
 
 compromise, pledgee can, 380. 
 NON-NEGOTIABLE AND QUASI-NEGOTIABLE INSTRUMENTS (see 
 Pledge and Pawn, Ch. Ill, Part II) — 
 
 nature and effect of such instruments, 345. 
 
 indicia of ownership of property, 345. 
 
 corporate stock, pledging of, 846. 
 
 certificate of, not the property, but represents it, 346. 
 
 what a sufficient delivery of, 347. 
 
 indorsement in blank, when sufficient, 247, 348. 
 
 equity will enforce transfer on books, when, 349, 
 
 charter and by-laws, importance of, 350. 
 
 pledgee of stock may transfer the title, 253. 
 
774 INDEX. 
 
 References are to sections. 
 
 NON-NEGOTIABLE AND QUASI-NEGOTIABLE INSTRUMENTS (con- 
 tinued) — 
 pledgor's remedy for wrongful transfer, 252. 
 transferee in blank may write transfer over indorsement, 352. 
 transferee having apparent title may confer title, 252. 
 pledgee's rights and liabilities after default, 319. 
 
 pledgee may obtain judgment, may sell property on execution, may 
 foreclose pledge, 319. 
 
 bailor may redeem stocks, 321, 333. 
 Foreclosure of such Pledge. 
 
 broker, bailee, may foreclose or sell stock, when, 332. 
 
 when foreclosure may be made, custom, usage, 322. 
 
 may foreclose for value to pay margins, 322. 
 
 sale not public but in stock market by broker, 322. 
 
 irregularity in foreclosure, may waive, 334. 
 
 tender of amount when pledgee refuses payment, 333. 
 
 when stocks are entered in books of company as pledgee's property, 
 326. 
 Bill op Lading Subject op Pledge, 353. 
 
 delivery of, 254. 
 
 with draft attached, 256. 
 
 how far negotiable, 257. 
 
 bonaflde holder of, 258. 
 Warehouse Receipt Surject of Pledge, 261. 
 
 delivery of, 262, 263, 265. 
 Insurance Policy Subject op Pledge, 266. 
 
 delivery a requisite, how made, 267, 268, 269. 
 Notes, Mortgages, Bonds and Mortgages, 270. 
 
 delivery of, indorsement, 370. 
 
 effect of delivery without indorsement, 371. 
 
 pledge distinguished from chattel mortgage, 373. 
 NOTES AND MORTGAGES, BONDS AND MORTGAGES — 
 subject of pledge, 370. 
 
 transferable by indorsement of note in blank, 270. 
 the note carries with it its security, 370. 
 mere delivery as pledge without indorsement, 371. 
 assignment and transfer, 372. 
 for foreclosure of pledge of, 313, 314, 315, 316, 317. 
 pledgee may compromise, 318. 
 NOTICE — 
 
 of intention to terminate gratuitous bailment, 80. 
 
 pledge or pawn, bailor's notice of intention to redeem, 282. 
 
 notice of sale on foreclosure of, 304, 306. 
 innkeepers, limiting liability, 372. 
 
 notice must be brought to personal attention of guest, 373. 
 common carriers, limiting liability by notice, 520. 
 
 cannot limit by mere general notice. 530. 
 
 as to general notice written or printed on receipt or bill of lading, 
 522. 
 
INDEX. 775 
 
 References are to sections, 
 NOTICE (continued) — 
 
 as to notice of arrival of goods at destination, 581, 583, 583, 584. 
 notice requisite, stoppage in transitu, 589, 590, 592. 
 passenger carriers, 683. 
 
 carriers by water, notice to consignee of arrival of goods, 573. 
 must be reasonably diligent in giving notice, 574. 
 notice must be actual for removal of goods at proper time and 
 
 place, 576. 
 notice dispensed with by contract, 577. 
 usage, course of dealing, etc., excuses, 578. 
 inattention of consignee to notice will not prolong liability, 579. 
 OMNIBUS — 
 
 are carriers of goods and carriers of passengers, 418, 
 ORDINARY BAILMENTS, 29. See Bailments. 
 OWNERSHIP — 
 
 bailor's title to the property bailed, 20. 
 absolute title in bailor not necessary, 30. 
 one having special property in, may bail, 20. 
 bailee cannot dispute bailor's title, 30. 
 bailor may sell or incumber, 21. 
 PARTICULAR OR SPECIFIC LIEN. See LlKN. 
 PARTIES — 
 
 to bailments, 11. 
 who may be, 12. 
 competency of, 18. 
 
 disabilities of, a shield, not a sword, 14 
 agents may create, 15. 
 corporation may be, 16. 
 PASSENGERS. See Carriers of Passengers. 
 PASSES — 
 
 drovers riding on, are passengers, 599. 
 fraudulently obtained, 640. 
 
 one riding on, not entitled to rights of passenger, 640. 
 limitation of liability to persons riding on, 664. 
 gratuitous passes, 664. 
 passes for consideration, 664. 
 
 the effect of passenger's signing conditions limiting liability, 664 
 PAWN. See Pledge and Pawn. 
 
 PAYMENT — 
 
 pledge and pawn, where several debts secured by pledge, 336, 
 the application of payments in case of, 236. 
 pledgee may apply payments, 236. 
 if pledgee does not make application pledgor may, 336. 
 pledge terminated by payment of debt, 338. 
 innkeeper, lien of discharged by payment, 383. 
 
 carrier's goods, payment or tender required before action for re- 
 fusal to carry goods, 453. 
 
776 INDEX. 
 
 References are to sections. 
 
 PAYMENT (continued) — 
 
 carriers, amount due depends upon goods delivered, 538. 
 payment a condition precedent to carrying goods, 537. 
 lien of, satisfied and discliarged by payment of freight, 559, 580. 
 carriers of passengers, payment of fare not requisite to becoming a 
 passenger, 603, 604. 
 fraudulently evading payment, 604. 
 
 payment of fare when ticket lost, 636. 
 
 ejection of passenger for non-payment, 644 
 
 payment for extra baggage, 675. 
 PIRATES UPON THE HIGH SEAS — 
 
 are considered public enemies, 474. 
 PLEADING. See Actions Against Carribks. 
 PLEDGE OR PAWN (Part II) — 
 pignus, pledge or pawn, 26, 28, 216. 
 the relation, 316. 
 
 mutual-benefit bailments, 114, 216. 
 scope of business, 217. 
 definition, 218. 
 essentials, 4, 219. 
 parties competent, 220. 
 
 certain persons not competent at common law, 320. 
 must be assent of parties, 231. 
 corporations, partnership, agents, as parties, 333, 
 property the subject of the pledge, 233. 
 corporeal or incorporeal property, 224. 
 property not in existence or not acquired. 225. 
 potential existence or ownership sufficient, 236. 
 natural increase of property, subject of pledge, 336. 
 exempt property may be pledged, 337. 
 pensions, officer's pay, soldiers, 328. 
 ^Debt, Obligation or Engagement, 229. 
 
 collateral security, pledge, 330. 
 
 debt secured, contract should specify, 231. . 
 
 past, present or future debt may be secured by, 233. 
 
 debt of another may be secured by, 233. 
 
 as to holding property for another or former debt, 234. 
 
 no authority to so hold if no contract, 234. 
 
 continuing security, pledge may be for. 23o. 
 
 when several debts, application of payment, 336. 
 
 pledgee may make application of payments, when, 236. 
 
 where the same debt is secured by other collateral, 236. 
 
 sureties cannot be subrogated to pledgee's right, etc., 336. 
 
 such subrogation obtained by paying debt, 336. 
 
 pledgee may hold for other debts secured by it, 236. 
 
 interest of debt secured as well as principal, 237. 
 
 delivery of property by pledgor, acceptance by pledgee, 337a. 
 
 possession, notice to world, 337a. 
 
 pledge good between parties if no delivery, when, 238. 
 
INDEX. 777 
 
 References are to sectiona, 
 PLEDGE OR PAWN (continued) — 
 Delivery, what should it be, 239. 
 
 constructive or symbolical delivery, 240. 
 Negotiable Paper, Pledge op (Ch. II, Part II), 341. 
 
 delivery of, when sufficient, 241. 
 
 pledgee holder for value, when, 243. 
 
 rules applicable to purchaser of, obtain, 243. 
 
 pre-existing debt as consideration, 344. 
 NOM-x\EGOTIABLB INSTRUMENTS (Ch. Ill, Part II), 345. 
 
 nature and effect of such instruments, 345. 
 
 corporate stock, pledging of, 346. 
 
 delivery of, what suflSoient, 347. 
 
 indorsement in blank, when sufBcient, 247, 248. 
 
 equity will enforce transfer, when, 349. 
 
 charter and by-laws, importance of, 250. 
 
 pledgee of stock may transfer title, apparent owner, 253. 
 
 pledgor's remedy for wrongful transfer by pledgee, 253. 
 
 bill of lading subject of pledge, 353. 
 
 delivery of, 354. 
 
 when draft attached, 356. 
 
 how far negotiable, 357. 
 
 bona fide holder of, 358. 
 
 warehouse receipt subject of pledge, 360. 
 
 delivery of, when sufficient, 263. 263, 265. 
 Insurance Policy Subject to Pledge, 366. 
 
 delivery requisite, how made, 367, 268, 269. 
 Notes and Mortgages, Bonds and Mortgages, 270. 
 
 delivery of, indorsement, 270. 
 
 effect of mere delivery without indorsement, 271. 
 
 pledge distinguished from chattel mortgage, 273. 
 Pledgor's Rights and Liabilities (Ch. IV, Part II). 
 
 depends upon contract creating pledge, 274. 
 
 pledgor's rights generally, 275. 
 
 may require ordinary diligence, 276. 
 
 may protect the pledged property, when, 277. 
 
 may require pledgee to collect pledged securities, 377. 
 
 purchaser of property takes all the rights of the pledgor, 277. 
 
 the purchaser may redeem the pledge and take the property, 277, 
 333. 
 
 the purchaser should give the pledgee notice, 377. 
 
 pledgor's interest subject to legal process, 378. 
 
 when debt barred by statute of limitations, 379. 
 
 when statute of limitations will run against pledgor, 280. 
 
 notice of intention to redeem, when necessarj^ 282. 
 
 warranty of title of property by pledgor, 383. 
 Pledque's Rights, Duties and Liabilities, 384. 
 
 possession of property necessarily with pledgee. 285. 
 pledge an incident of the debt and assignable, 286. 
 
778 INDEX. 
 
 References are to sections. 
 PLEDGE OR PAWN (continued) — 
 
 assignment of debt equitably assigns pledge, 287. 
 
 assignee's rights subject to contract of pledge, 288. 
 
 pledgee's right to repledge, 289. 
 
 pledgee's right to use the pledged property, 290. 
 
 expenses and profits on account of pledge, 291. 
 
 usual and necessary expenses pledgee may pay, 291. 
 
 profits and increase pledgee must account for, 291. 
 
 pledgee's liability for loss and damages, 292. 
 
 ordinary care and diligence required, 293. 
 
 perishable goods, ordinary care to preserve, 293. 
 
 property lost by theft, 293. 
 
 payment of debt releases pledged property, 293. 
 
 pledgee cannot retain property after payment of debt to secure 
 other debts. 293. 
 
 tender of amount due will release property from lien of pledge. 294. 
 
 the lien is discharged but not the debt, if tender is not accepted, 
 294, 298. 
 Pledgee's and Pledgor's Eights and Obligations After Default 
 (Ch. V, Part II). 
 
 subdivision of the subject, 295. 
 
 after default pledgee may foreclose pledge, sue debt, obtain judg- 
 ment, levy execution, 296. 
 
 If judgment and execution obtain, may levy on other property, 296. 
 
 pledged security not lost by suit, judgment and execution, 297. 
 
 tender discharges lien but not debt, 298. 
 
 pledgee by attaching pledged property, or levying execution may 
 waive lien, 299. 
 
 pledgor's defense to action of pledgee on debt, 300. 
 
 pledge is not affected by an action upon the debt, 300. 
 
 the pledgor cannot offset property pledged in a suit for the debt, 
 300. 
 
 if the property has been converted, may offset, 800. 
 Foreclosure of Pledge of Corporeal Property, 301. 
 
 pledgor may redeem at any time before sale, 301, 304. 
 
 several ways of foreclosure. 301. 
 
 when may sell under power in contract of pledge, 303. 
 
 power to sell implied if no written contract, 803. 
 
 common-law foreclosure, 803. 
 sale must be public, 802, 303. 
 
 sale, notice of, good faith, 304, 306. 
 
 pledgee cannot be purchaser at sale, 305. 
 
 may be if fair and acquiesced in by pledgor, 305. 
 
 pledgor cannot compel pledgee to sell, 307. 
 
 his remedy is to redeem, 307. 
 
 as to surplus after sale and debt paid, 308. 
 
 statutory foreclosure, 309. 
 
 foreclosure in equity, 310, 311. 
 
 when pledgor a bankrupt, 312. 
 
INDEX. 779 
 
 Eeterences are to sections. 
 
 PLEDGE OR PAWN (continued) — 
 
 When the Property Pledged Negotiable Instruments. 313. 
 
 how foreclosure differs when negotiable instruments, 313. 
 
 not usually sale of at public auction, 313. 
 
 under English rule sell the same as though corporeal, 314 
 
 pledgee's recourse to pledged securities, what, 315. 
 
 pledgee must collect securities, 315. 
 
 must use diligence in collecting, 316. 
 
 for negligence in collecting, liable, 316. 
 
 pledgee may recover in an action on, 817. 
 
 securities liable to equities in maker, 317. 
 
 compromise; pledgee can, when, 318. 
 When Pledged Property Consists of Stocks and Bonds. 
 
 pledgee's rights and liabilities after default, 319. 
 
 pledgee may obtain judgment, 319. 
 
 pledgee may sell on execution, 319. 
 
 or may foreclose pledge, 319. 
 Stocks Held on Margins, Purchased by Brokers, 320. 
 
 such stocks held as pledge for advancements by broker, 320. 
 
 custom, usage, course of business as to margins, 321. 
 
 customary, the bailor may redeem stock, 321. 
 
 broker, bailee, may foreclose or sell stock, when, 332. 
 
 margins must be paid or kept up, 322. 
 
 when foreclosure may be made; custom, usage, 322. 
 
 failure to pay margins after notice, foreclosure, 322. 
 
 sale not public, but in stock market by broker, 322. 
 Rights and Liabilities of Pledgor After Default, 323. 
 
 may redeem at any time before foreclosure, 323. 
 
 may tender amount due if pledgee refuses payment, 328. 
 
 irregularities in foreclosure, may waive, 334. 
 
 redemption in equity, 835, 326. 
 
 when stocks ai-e entered in books of company as pledgee's prop- 
 erty, 336. 
 
 equity will undo, 336. 
 
 when pledgee refuses to reconvey stocks so entered, equity will 
 decree it, 336. - 
 
 pledgor is entitled to an accounting from the pledgee, 337. 
 Termination of the Relation of Pledge, 338. 
 
 the several ways of, 338. 
 
 by redelivery of the property, 338. 
 
 by payment of the debt, 338. 
 
 by tender of the amount due, 328. 
 
 loss or destruction of the pledged property, 388. 
 
 by sale of the pledged property, 329. 
 
 merger; pledgee purchasing property, 338. 
 
 by conversion of the property by pledgee, 338. 
 
 when duty of pledgee to redeliver property, 338. 
 
780 INDEX. 
 
 References are to sections. 
 
 POSTOFFICE DEPARTMENT — POSTAL SERVICE (Ch. I, Part IV) — 
 liability of postoffioe department, 388. 
 postmasters, 389. 
 liability of postmasters, 390. 
 carriers of mail, liability, 391. 
 POSTMASTERS. See Postal Service, 389. 
 POSTOFFICE DEPARTMENT, 388. 
 POSTAL SERVICE (Ch. I, Part IV) — 
 liability of postoffioe department, 388. 
 postmasters and their liability, 389, 390. 
 carriers of mail, 391. 
 PROPERTY — 
 
 bailment; kind of property subject of, 18. 
 
 personalty, not realty, subject of, 18. 
 
 expenditure to preserve property, when bailor liable, 44 
 
 bailee, right to use property bailed, 46. 
 
 often duty of bailee to use, 46. 
 
 unwarranted use of, by bailee, 47. 
 
 bailee may compel adverse claimants to interplead, 54 
 
 bailor may have action for injured property, 57, 139. 
 
 bailee must redeliver property, 61. 
 
 redelivery not always required, 4, 5, 63. 
 
 excuse tor non-delivery by bailee to bailor, 63. 
 
 lien of bailee for compensation, 68. 
 
 delivery of property for the purpose ; bailment a requisite to lien, 69. 
 
 possession of property requisite to lien, 70. 
 
 finder of property may have lien, 71. 
 
 extinction of lien upon, 73. 
 
 cannot modify the lien, 74. 
 
 by destruction of property, bailment terminated, 83. 
 
 bailee cannot retain for other debts due him, 113. 
 
 bailor may defend title to, 139. 
 
 negotiable paper, property subject of the pledge, 341. 
 
 non-negotiable paper, property subject of pledge, 345. 
 
 bill of lading, property subject of pledge, 353. 
 
 bill of lading with draft attached, 356. 
 
 warehouse receipts, property subject of pledge, 361. 
 
 insurance policies, 366. 
 
 notes, mortgages, bonds, 270. 
 RAILROAD COMPANIES (see Carriers of Goods; Carriers of Pas- 
 sengers] — 
 are common carriers of goods and passengers, 434. 
 not all railroad companies are common carriers, 426. 
 railroads built for private use, 426. 
 RECEIVERS AND TRUSTEES — 
 
 common carriers, when, 434. 
 REDELIVERY — 
 
 of bailed property, not always necessary, 4, 5, 63. 
 
 necessity of redelivery detei'mined by contract express or implied, 6, 7. 
 
INDEX. 781 
 
 References are to sectiona. 
 
 REDELIVERY (continued) — 
 
 redelivery at termination of bailment, 111. 
 
 must redeliver with all natural accessions, 111. 
 
 if bonds or securities, with interest accumulated or collected. 111. 
 
 bailee cannot retain property or accessions for debts due him, 113. 
 
 exceptions where compelled to pay ordinary expenses, 113. 
 
 may in some cases have lien on property, 113, 
 an exception to the rule that must redeliver, 7. 
 
 money deposited in banli, not necessary, 7. 
 
 money loaned, not necessary, 7. 
 
 grain stored in elevators, not necessary, 9. 
 
 grain stored in flouring-mills, not necessary, 10. 
 bailor may bring replevin for failure to deliver, when, 61. 
 excuse for non-delivery, 63. 
 
 pledge and pawn, redelivery of property terminates, 338. 
 RIGHTS AND LIABILITIES — 
 
 bailments; gratuitous and non-gratuitous bailments, 33. 
 
 liability rests on benefit to the parties, 35. 
 
 charter showing duties and liabilities, 37. 
 
 see Bailments; Liability op Bailor and Bailee; Locatio 
 Bailments; Redelivery; Carriers, Public or Common; 
 Carriers of Goods. 
 liability of carrier of goods that of an insurer, 466. 
 limitation of liability, 466. 
 reasons for liability, 467. 
 animate and inanimate freight, 468. 
 
 when loss the result of the act of God, 469, 470, 471, 473, 473. 
 when loss occasioned by public enemy, 474, 475, 476. 
 when occasioned by strikers, rioters, robbers, 477. 
 when lost by reason of the acts of the shipper, 479, 480, 481, 483, 483. 
 negligence of the carrier, 484. 
 where the loss occasioned by the inherent nature of the property, 485, 
 
 486. 
 carriers of live-stock, 487, 491. 
 
 the loss the result of exercise of public authority, 493. 
 for deviation or delay, 493, 503. 
 contract limiting liability of carrier, 509, 533. 
 connecting carriers, 533, 536. 
 
 see Carriers of Passengers. 
 duties of carriers and passengers, 609, 618. 
 passenger carrier's liability, 619, 643. 
 
 see Sleepino-car Companies, 641, 643; Limitation of Liability; 
 Carriers of Passengers, 659, 665. 
 Baggage — 
 
 liability of carrier for, 681, 689. 
 ROBBERY — 
 
 excuses liability, when, 55. 
 
 robbers are not considered as the public enemy, 474. 
 
r82 INDEX. 
 
 References are to sections. 
 
 SALES (see Bailments, 33, 24, 25) — 
 
 sale of property by bailee, conversion, 64. 
 enforcement of lien by, 76. 
 
 grain stored in elevators or flouring-mills, vphen a sale, vrhen bail- 
 ment, 24. 
 delivery to warehouseman, whether sale or bailment, 175. 
 pledge and pawn, sale of property pledged under power of sale in con- 
 tract, 303. 
 power to sell implied if no written contract, 303. 
 notice of sale, 804-306. 
 pledgee cannot be purchaser, 305. 
 under what circumstances may be purchaser, 305. 
 pledgor cannot compel pledgee to sell property, 307. 
 his remedy is to redeem, 307. 
 surplus after sale and debt paid, 308. 
 foreclosure and sale in equity, 310, 311. 
 negotiable instruments, sale of at public auction on foreclosure of 
 pledge not usual, 313. 
 under English rule same as though property corporeal, 814. 
 what is the pledgee's recourse to pledged securities, 315. 
 duty of pledgee to collect, not sell securities, 315. 
 when pledged property consists of stocks and bonds, 319. 
 stocks held on margins, purchased by brokers, 330, 323. 
 
 sale of, not a public sale on foreclosure, 333. 
 pledge relation terminated by sale of the pledged property, 328. 
 carriers of goods; when cairier can sell goods to satisfy lien, 543. 
 his duty to sell goods under certain circumstances, 543. 
 when he cannot carry them to their destination because perishable, 
 542. 
 SAFE-DEPOSIT AND TRUST COMPANIES — 
 
 not gratuitous; diifers from mere depositum, 197r 
 the nature of the bailment and the diligence required, 198. 
 bound to exercise high degree of ordinary diligence, 198. 
 see Bailments; Locatio Custodije. , 
 SPECIAL DEPOSIT — 
 in banks, 51. 
 
 determining negligence as to, 53. 
 special, not general deposit, 89. 
 
 see Deposits; Safe-deposit and Trust Companies. 
 STAGE-COACHES — 
 
 drivers of stage-coaches, diligence in selecting, 631. 
 liability as common carriers, 621, note 3. 
 
 bound to furnish strong vehicles, well-broken horses, skilful and prudent 
 drivers: liable for slightest degree of negligence, 621, note 3. 
 STEAMBOATS — 
 
 is the liability of innkeepers and steamboat companies the same, 686. 
 STOCKS — 
 
 the pledging of corporate stocks, 246. 
 requirements of such pledge, 246. 
 
INDEX. 783 
 
 Eeferenoeg are to sections. 
 
 STOCKS (continued) — 
 
 as to sufficient delivery, 247. 
 
 transfer in blank, efCect of, 348, 249. 
 
 how affected by loans; charter of company, 250. 
 
 pledgee of, protected against creditors, 251. 
 
 pledgee of by indorsement, may transfer title, when, 252. 
 
 equity court invoked to protect pledgor vchen stock transferred on 
 
 books by pledgee, 252. 
 rights of pledgee of stock after default, 319. 
 foreclosure and other remedies, 319. 
 stocks held on margins, 320. 
 
 liabilities of parties, custom, usage, course of business, 331. 
 foreclosure of pledge of stocks held on margins, 322. 
 not by public sale, but sale in stock market, 323. 
 STOPPAGE IN TRANSITU. See Carriers op Goods, 587-593. 
 STREET-CAR COMPANIES — 
 
 are common carriers of passengers, 430. 
 liability differs from common carriers, 430. 
 see Carriers of Passengers. 
 STRIKERS — 
 
 are not deemed to be the public enemy, 477. 
 
 their action -will not relieve carrier from extraordinary liability, 477. 
 act of, vsrill excuse deviation and delay, 477. 
 see Carriers of Goods. 
 TENDER — 
 
 pledge or pawn, discharge of lien of by tender, 398. 
 
 does not discharge debt, 298. 
 innkeepers; lien of, discharged by tender, 385. 
 
 carriers of goods; tender of freight necessary before action for non- 
 transportation, 454. 
 tender discharges carrier's lien, 560. 
 TERMINATION — 
 
 bailments, the relation of, 77, 213. 
 several ways of, noted, 78-84. 
 
 if bailment gratuitous, generally at will of bailor, 80. 
 bailor must be reasonable as to, 80. 
 bailee may terminate, when, 80 (b). 
 for abuse or injury of property, 80 (g). 
 if commodatum, at will of bailee, 80 (h). 
 of termination of custody for hire, warehouseman, 313. 
 may be at will of bailor by paying for custody, 313. 
 several ways of terminating. 105. 
 pledge and pawn, several ways of, 338. 
 common carriers, 561-564. 
 THIEF — 
 
 in possession of property, may be bailor, lOi 
 TICKETS — 
 
 issued as evidence of payment of fare, 638. 
 is both a receipt and a contract, 633. 
 
784 INDEX. 
 
 Eeferences are to sections. 
 
 TICKETS (continued) — 
 
 carrier will be held strictly to contract in, 633. 
 
 ambiguous lien is construed favorably to passenger, 633. 
 
 amount charged for must be reasonable; regulated by statute, 633. 
 
 cannot charge more than reasonable amount but may charge less, 633. 
 
 excursion tickets; stipulation in must be reasonable, 633. 
 
 stipulation in, consideration for, 633. 
 
 when agent of carrier violates conditions, 634. 
 
 when passenger violates conditions through fault of carrier or agent 
 644. 
 
 exhibition and surrender of, 635. 
 
 lost or mislaid ticket, 636. 
 
 reasonable time to find arid produce it, 636. 
 
 stop-over tickets, time limit, train limit, 637. 
 
 when passenger boards train knowing time on ticket has expired, 637. 
 
 over connecting lines. 638. 
 
 may stop off at terminus of any line, 638. 
 
 may continue journey if passenger starts within limit of ticket, 638. 
 
 if delayed by wi-eck or by fault of carrier, 639. 
 
 if voluntarily obtained, 640. 
 
 if a free pass voluntarily obtained, 640. 
 
 limitations of liability, 659-665. 
 TITLE — 
 
 bailments, 30. 
 
 by bailor not necessary, 20. 
 
 finder of goods sufficient for bailment of, 20. 
 
 bailee cannot dispute his bailor's title, 20. 
 
 title of bailee, 21, 
 
 locatio operis, bailee has special property in thing, 138. 
 
 can maintain action against third parties for injury to, 188. 
 
 to product, when material furnished and labor to be sold and profits 
 divided, 140. 
 
 if thing destroyed during the carrying out of the agreement, or after 
 furnished, 141. 
 
 if work to be performed by the job on the thing, 143. 
 
 title to material used by bailee passes to bailor by accident, 160. 
 
 pledgor warrants title to property pledged, 283. 
 TRANSFER COMPANIES — 
 
 are common carriers, 423. 
 WAIVER — 
 
 bailments; waiver of bailee's lien, 73. 
 
 innkeepers; of lien upon property within the inn, 375. 
 
 common carriers; waiver of lien, 558. 
 WAREHOUSEMEN, STORAGE-HOUSE KEEPERS — 
 
 a mutual-benefit bailment, 114, 171. 
 
 defined and explained, 171. 
 
 public warehouses, 172. 
 
INDEX. 785 
 
 References are to seotiona 
 
 WAREHOUSEMEN, STORAGE-KEEPERS (continued) — 
 bonded warehouses, 17S. 
 
 delivery requisite to liability, 174. 
 
 when delivery of property to, a sale, when a bailment, 175. 
 
 the warehouse rex;eipt, 176. 
 
 assignment of, as against creditors, 176. 
 
 warehouseman may insure property, 177. 
 
 when diligence requires warehouseman to insure property, 177. 
 
 usage and general course of business, effect of, 178. 
 
 receipt of, technically not negotiable, 179. 
 
 receipt of, stands for the property itself, 179. 
 
 statutes providing negotiability of, 181. 
 
 warehouseman estopped from impeaching his own receipt, 180. 
 common carrier, when a warehouseman, 183, 183. 
 wharfingers similar to warehouseman, 186. 
 
 storage-house keepers like warehouse keepers, 190. 
 
 duty of bailor toward, 191. 
 
 as to dangerous articles in, 193. 
 
 when liability begins and ends, 193, 194. 
 
 proper place and kind of storage, 302. 
 
 diligence must keep pace with improvements, 303, 
 
 the diligence required, 203. 
 
 proof of negligence, 304 
 
 burden of proof, 204. 
 
 does the burden of proof shift, 304, 306. 
 
 contributory negligence a defense, 807. 
 
 the negligence of servants of, 308. 
 
 master liable for negligence of servants, 208. 
 
 bailee's right to use the bailed property, 309. 
 
 delivery, misdelivery, non-delivery, 310. 
 
 bailee cannot dispute bailor's title except, 210. 
 
 confusion of goods, when allowed, 311. 
 
 embezzling property, criminal, 313. 
 
 termination of relation, 313. 
 
 conversion of property, 314. 
 
 compensation and lien of, 315. 
 
 see Safe-deposit and Trust Companies. 
 WAREHOUSE RECEIPTS. See Warehousemen, STORAaEHOUSE Keei»- 
 
 ERS. 
 
 WHARFINGERS — 
 
 duties and liabilities like those of warehousemen, 186. 
 
 must exercise ordinary diligence, 186. 
 
 when liability begins, 187. 
 
 cannot charge with responsibility until goods delivered, 187. 
 
 mere delivery of goods at wharf not sufficient to be put in control of 
 
 wharfinger, 187. 
 as to notifying of delivery of goods, 187. 
 when liability ends, 188. 
 50