consignee promised that if he would deliver them he would pay the freight. The delivery was made, but the consignee then refused to pay unless the carrier would reduce his charges; whereupon the latter retook the goods by a writ of replevin, and it was held that he was entitled to the action and to the repossession of the goods, upon the same ground which entitles the vendor of chattels to recover them from the vendee, the sale was for cash, and the latter, after delivery to him r fuses to pay the price.45

Sec. 872. ($ 482.) Lien takes precedence of claims of consignor or creditors.-The lien takes precedence of the claims of the general creditors of the owner or consignee of the goods, and the plaintiff in an action against him, who seizes or levies upon them, must pay the carrier his freight before he can legally take them from his possession; but the plaintiff or officer who pays the carrier will be substituted to his lien upon the, goods.+ 46 So the lien of the carrier is pro tanto superior to the right of the vendor to his stoppage in transitu, and when the latter undertakes to enforce his right to stop the goods on account of the insolvency of his vendee, by taking them from the possession of the carrier, he must first tender to him his freight, and he has no right to their possession until he has done so.47

45. 150 Tons of Coal, 4 Blatch. 368; Wallace v. Woodgate, Ryan & M. 193; Hays v. Riddle, 1 Sandf. 248; Ash v. Putnam, 1 Hill, 302; Bristol v. Wilsmore, 1 B. & C. 514; Anchor Mill Co. v. Railroad Co., 102 Iowa, 262, 71 N. W. Rep. 255. 46. Rucker v. Donovan, 13 Kan. 251; Railroad Co. v. Bossut, 62 Pac. Rep. 977, 10 N. Mex. 322.

The lien of a carrier and warehouseman for keeping property is superior to that of a pledgee who has procured the property to be transported and stored. Cooley v. Railway Co., 53 Minn. 327, 55 N. W. Rep. 141, 39 Am. St. Rep.

A common carrier, who accepts freight for transportation without first securing its charges, stands inferior, with respect to its lien therefor, to a mortgagee of such freight where it appears that the carrier had both constructive and actual knowledge of the mortgage before it accepted the freight for transportation. Owen r. Railway Co., 11 S. Dak. 153, 76 N. W. Rep. 302.

47. Pennsylvania R. Co. v. Oil Works, 126 Penn. St. 485; Oppenheim v. Russell, 3 Bos. & P. 42; Morley r. Hay, 3 M. & Ryland, 396; 2 Kent's Com. 541,

And even after a part delivery the carrier may maintain his lien for the whole charges upon the balance undelivered, even as against the vendor's right of stoppage in transit.48 But a lien by usage for a general balance due the carrier, while it may be good as between the carrier and the consignee, cannot, it is held, prevail against the vendor's right of stoppage.49

Sec. 873. Rights of conditional vendor who authorizes shipment of goods. When a vendor makes a conditional sale of goods, and authorizes the vendee to ship and use them, the vendor is estopped from disputing the carrier's lien for freight. To say that the giving of such authority does not contemplate or extend to the giving of credit for freight, but only to payments in advance, would be contrary to the universal course of business. The law presumes according to the usual order of things.50

Sec. 874. Lien lost where carrier is liable for damages to goods equal to or exceeding the freight charges.-The lien of the carrier being only co-extensive with his right to recover freight, it follows that if through any cause for which the carrier would be liable, the goods are injured to such an extent that the damage equals or exceeds the freight charges, the lien, it is held, will be destroyed; and should the carrier under such circumstances insist on reserving their possession to himself for the purpose of securing his charges, the detention will be unlawful.51

Sec. 875. (§ 483.) Lien may be waived by terms of payment. While the law will presume in favor of the continuance of the lien, the right to it may be waived by the carrier without an express agreement to that effect, and such an intention. may be inferred from the terms as to the payment of the freight agreed upon between the parties; as where the time agreed upon for the payment is postponed to a future day beyond the time

48. Potts v. Railroad Co., 131 Mass. 455.

50. Lake St. El. R. Co. v. Railroad Co., 66 N. Y. Supp. 455, 32

49. Farrell v. Railroad Co., 102 Misc. 669. N. C. 390.

51. Dyer v. Railway Co., 42 Vt.

at which the goods are to be delivered, or where such payment is to be made at such time or place as necessarily presupposes that the delivery is to be first made. And it will be considered as waived by implication whenever any provision in the bill of lading or other contract in relation to the affreightment is inconsistent or irreconcilable with the payment of the freight as a condition precedent to the delivery.52 But no special agreement as to the carriage and delivery, which does not expressly or by clear implication amount to a waiver of the lien, will have that effect, though it was formerly thought otherwise.53

Sec. 876. (§ 484.) Same subject-Waiver by taking acceptance payable after delivery.-Accordingly, where the contract was for a voyage from Liverpool to San Francisco, and that the freight should be paid, part by the shipper's acceptance at six months from the sailing of the vessel, and the remainder by his acceptance at three months from the date of the delivery of the cargo at destination, it was held that the lien was not waived or displaced as to that portion of the freight covered by the six months' acceptance from the date of the sailing of the vessel, the shipper having become insolvent, and the bill of exchange having been protested before the vessel's arrival at destination, a bill of exchange given for a debt not being a payment or an extinguishment of the debt except by the express agreement of the parties; but it was held that, as to the freight intended to be secured by the bill payable at three months from the date of the delivery, the lien had been waived, and that to that extent the carrier had no interest in the cargo.54 Sec. 877. (485.) Same subject-What does not amount to waiver. But unless the stipulation is that the delivery shall

441; Miami Powder Co. v. Railway Co., 47 S. Car. 324, 25 S. E. Rep. 153, 58 Am. St. Rep. 880.

52. Raymond v. Tyson, 17 How. 53; Chandler r. Belden, 18 Johns. 157; Schooner Volunteer, 1 Sumn. 551; The Eddy, 5 Wall. 481; Alsager v. Dock Company, 14 M. & W. 794; Foster r. Colby, 3 Hurl

stone & N. 705; Tamvaco v. Simpson, 19 Com. B. (N. S.) 453, L. R. 1 C. P. 363.

53. Chase v. Westmore, 5 M. & S. 180; Lucas v. Nockells, 4 Bing. 729; Pinney v. Wells, 10 Conn. 104.

54. The Bird of Paradise, 5 Wall. 545.

precede the payment of the freight, or the terms of the agreement as applied to the subject-matter and the surrounding circumstances are such as clearly to show that the claim to the lien has been waived or abandoned, the carrier will not be deprived of the security which it is intended to afford him, as the presumption will be in favor of its existence, and will prevail where the terms of the special agreement are not absolutely inconsistent with the retention of the goods.55 Accordingly, where the stipulation was that the freight should be paid within ten days after the vessel returned to the port of departure, it was held that the lien was not displaced on the return cargo, as its delivery might be rightfully postponed beyond the ten days after the return of the ship, when by the terms of the contract the freight would become due.56

Sec. 878. (§ 486.) Same subject-Other illustrations. So where the freight was to be paid in five days after the vessel's return to and discharge in the return port of the voyage, it was held that the word discharge, as used by the parties, meant merely the unlading of the cargo from the ship, without any reference to a delivery to the owner or consignee.57 And where the agreement was that the freight was to be paid, "one-half in five and one-half in ten days after the discharge of the homeward cargo," and notes were given for the accommodation of the carrier, payable near the time when it was expected the ship would arrive, and which it was agreed were to be held over or renewed in case they fell due before the ship reached home, and shortly before the arrival of the vessel, and before the notes became due, the freighter failed, it was held that there was nothing in this arrangement between the parties, so inconsistent with the carrier's retention of the goods after their

55. Crawshay v. Homfray, 4 B. & Ald. 50; Pinney v. Wells, 10 Conn. 104; Wilson v. Kymer, 1 M. & S. 157; Neish v. Graham, 8 El. and B. 505; Campion . Colvin, 3 Bing. N. C. 17; The Bird of Paradise, supra; Clarkson v.

Edes, 4 Cow. 470; Drinkwater v. Brig Spartan, 1 Ware, 145; Howard v. Macondray, 7 Gray, 516. 56. The Volunteer, 1 Sumn.

551.

57. Certain Logs of Mahogany, 2 Sum. 589.

arrival as to destroy or displace his lien, although the notes by their terms did not fall due until about five weeks after the arrival of the vessel.58

Sec. 879. (§ 487.)

Same subject-Other illustrations.— And although the carrier may have agreed to extend the time for the payment of the freight beyond that of the delivery, yet if the agreement is that the credit is to be given upon condition that the freighter shall furnish security for its payment, or deliver to the carrier bills or notes for the amount, the lien will attach to the goods, and will not be discharged so that the shipper will be entitled to them until he has given the security or has tendered or offered to deliver the notes or bills to the carrier, according to the agreement. In such cases, the offer of the security, or the payment by bill or note, and the delivery of the goods, are to be concomitant acts which neither party is obliged to perform without the other's being ready to perform the correlative act.59

Sec. 880. ($488.) Carrier may store goods subject to lien when consignee fails or refuses to pay freight. If, after the arrival of the goods at their destination, the owner or consignee fail or refuse to pay the freight and accept them within the time provided by the contract of affreightment, or if, in the absence of any stipulation upon the subject, he fail to do so after a reasonable opportunity has been afforded him, the carrier may store the goods by depositing them with a storekeeper or warehouseman, at the expense of the consignee, subject to his lien for freight. When this is done, the warehouseman will hold the goods under the authority of the carrier, and his possession will be regarded as that of the carrier for the purpose of preserving the lien.60 The deposit may be made in the name

58. The Kimball, 3 Wall. 37. 59. Per Gibbs, C. J., in Tate v. Meck, 8 Taunt 280; Tamvaco v. Simpson, 19 Com. B. (N. S.) 453; Brown v. Tanner, L. R. 3 Chan. 597.

ber, 56 N. Y. 544; The Eddy, 5 Wall. 481; Brittan v. Barnaby, 21 How. 527; Alden v. Carver, 13 Iowa, 253; Davidson S. S. Co. v. 119,254 Bushels of Flaxseed, 117 Fed. 283; Gregg v. Railroad Co.,

60. Western Trans. Co. v. Bar- 147 Ill. 550, 35 N. E. Rep. 343, 37