of the carrier, and not on account of or for the owner or consignee; and being made in consequence of the default of the latter, it will neither be a conversion of the goods nor a discharge of the lien; and the warehouseman being, under such circumstances, the agent of the carrier, cannot deliver the goods except upon the condition of the payment of the freight; and if he do, it has been held that he will be liable to the carrier for a conversion of them, and for the full amount of his freight.61 Sec. 881. (§ 488a.) Liability of carrier while so holding goods. While holding the goods in pursuance of his lien the carrier is not an insurer and is bound to use reasonable care in respect of the goods, but he is not liable if they are lost or injured without fault or neglect on his part.62 Sec. 882. (§ 489.) Whether the carrier has a lien upon goods wrongfully shipped by one who is not the owner. The question whether the carrier can acquire a lien for his charges, as against the right of the true owner of the property to its possession, upon property which has been intrusted to him by a wrong-doer, who was unlawfully in its possession, and has unlawfully and without authority bailed it to the carrier, has been much mooted. In England it seems to be settled beyond controversy that the lien attaches to the goods under such circumstances in favor of both the carrier and an innkeeper. Many cases have there occurred in regard to the right of the innkeeper to the lien, where goods of which he was unlawfully in possession have been brought by a guest to an inn, and it has been uniformly held that in such cases the innkeeper had the right to retain the goods for the board of the guest against the claim of the lawful owner,63 unless the innkeeper knew that the Am. St. Rep. 238, citing Hutch. on 61. Compton v. Shaw, 1 Hun, 441. 62. Georgia Railroad Co. v. Murray, 85 Ga. 393, 11 S. E. Rep. 779; St. Louis, etc., R. Co. v. Flanna gan, 23 Ill. App. 489. See ante. § 714. 63. Yorke . Grenaugh, 2 Ld. Raym, 866; Snead v. Watkins, 1 Com. B. (N. S.) 267; Butler v. Wolcott, 2 Bos. & P. N. R. 64; Proctor v. Nicholson, 7 C. & P. goods were not the property of the guest at the time of their being brought to his inn.64 But it is immaterial whether the chattel be animate or inanimate, or whether its keep is attended with expense to the innkeeper or not. The law gives him his lien upon the carriage as well as upon the horses which draw it, no matter to whom it may belong, if he did not know that it was not the property of the guest when it was brought to the inn, because, as was said, the principle on which an innkeeper's lien depends is that he is bound to receive travelers and their goods which they bring with them to the inn, and, inasmuch as the effect of such lien is to give him a right to keep the goods of one person for the debt of another, the lien cannot be claimed except in respect of goods which, in the performance of his duty, he is bound to receive.65 Indeed, so extensive were the rights of an innkeeper considered that, until the decision in Sunbolf v. Alford, the opinion prevailed that an innkeeper might detain the person of his guest or take off his clothes as security for his bill.67 66 Sec. 883. (§ 490.) Same subject-How compares with innkeeper. The right of the innkeeper to retain the goods, even of the true owner, for the bill of the guest to whom they do not belong, is put upon the ground that he is obliged to receive the wrong-doer and his goods, and therefore it is reasonable that the right should be co-extensive with the duty, and that he should have his remedy by retaining the latter, if necessary. And as the carrier is under the same legal compulsion, and cannot refuse the goods for carriage unless he knows that they are not the property of the person who offers them, he is, for the same reason, entitled to the same security. In fact, it was first held that, for this reason, the carrier was entitled to the lien upon property committed to him by the wrong-doer, and the innkeeper, being equally without the power to choose 67; Binns v. Pigot, 9 id. 208; Johnson 1. Hill, 3 Stark. 172; Smith r. Dearlove, 6 Com. B. 132. 64. Broadwood v. Granara, 10 Exch. 417. 65. Turrill v. Crawley, 13 Q. B. 197. 66. 3 M. & W. 248. 67. Bacon's Abridg., "Inns and Innkeepers, D." whether he would receive the guest and the goods or not, was, in consimili casu, brought within the same exception.68 Sec. 884. (§ 491.) Same subject-No lien where goods received from tortious holder.-In this country the law upon the question does not seem to be so well settled. But few cases have occurred, it seems, in regard to the right of innkeepers, under such circumstances, to retain the property of another, brought to the inn by a guest. Whenever the subject has been referred to, it has been conceded that the lien in favor of the innkeeper attaches to the goods even when not owned by the guest.69 But it has been held in several cases that a carrier acquires no right, by virtue of his employment as such, to hold the goods delivered to him by a wrong-doer, to whom they do 68. Yorke v. Grenaugh, 2 Ld. Raym. 866; Cross on Liens, 286. The language in the report of this case upon this point is as follows: "But divers exceptions were taken by Darnall, Queen's Sergeant, to the avowry. 1. That since the horse was brought to the inn by a stranger, the innkeeper cannot detain it for its meat against the right owner. For it may be that this traveler was a wrong-doer or a robber. Sed non allocatur. For, per curiam, supposing this traveler was a robber and had stolen this horse, yet if he comes to an inn and is a guest there, and delivers the horse to the innkeeper (who does not know it), the innkeeper is obliged to accept the horse; and then it is very reasonable that he shall have a remedy for payment, which is by retainer. And he is not obliged to consider who is the owner of the horse, but whether he who brings him is his guest or not. And Holt, chief justice, cited the case of the Exeter carrier, where A. stole goods and de livered them to the Exeter carrier to be carried to Exeter, and the right owner finding the goods in possession of the carrier demanded them of him; upon which the carrier refused to deliver without being paid for the carriage. The owner brought trover, and it was held that he might justify detaining against the right owner for the carriage; for when A. brought them to him, he was obliged to receive them and carry them; and, therefore, since the law compelled him to carry them, it will give him remedy for the premium due for the carriage. The same reason holds in this case. But Powell, justice, said that a carrier could not detain for his carriage; but note, the contrary has always been held by Holt, chief justice at Guildhall." See also, Brown Shoe Co. v. Hunt, 103 Iowa, 586, 72 N. W. Rep. 765, 64 Am. St. Rep. 198. 69. Fox v. McGregor, 11 Barb. 41; Manning v. Hollenbeck, 27 Wis. 202; King v. Richards, 6 Whart. 418. not belong, until his charges are paid, against the claim of the true owner, and that he therefore has no lien upon them, but must, on demand, surrender them to the owner. 70 This rule is 70. Fitch v. Newberry, 1 Doug. (Mich.) 1; Van Buskirk v. Purinton, 2 Hall, 561; Collman v. Collins, id. 569; Robinson v. Baker, 5 Cush. 137; Stevens v. The Railroad, 8 Gray, 262; Clark v. The Railroad, 9 id. 231; Gilson v. Gwinn, 107 Mass. 126; Travis v. Thompson, 37 Barb. 236; Marsh v. Railway Co., 3 McCrary, 236; Railway Co. v. Tolbert, 123 Ga. 378, 51 S. E. Rep. 401, citing Hutch. on Carr. But see King v. Richards, supra, where it is admitted that the lien exists, under such circumstances, in favor of the carrier. In Robinson v. Baker, Fletcher, J., after noticing several of the earlier cases upon the subject, thus states his reasons for denying the lien: "Thus the case stands upon direct and express authorities. How does it stand upon general principles? In the case of Saltus v. Everett, 20 Wend. 267, it is said: "The universal and fundamental principle of our law of personal property is, that no man can be divested of his property without his consent, and consequently that even the honest purchaser under a defective title cannot hold against the true proprietor? There is no case to be found, or any reason or analogy anywhere suggested in the books, which would go to show that the real owner was concluded by a bill of lading not given by himself, but by some third person, erroneously or fraudulently If the owner loses 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 purpose, 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. Upon this settled and universal principle, that no man's property can be taken from him without his consent, express or implied, the books are full of cases, many of them hard and distressing cases, where honest and innocent persons have purchased goods of others, apparently the owners, and often with strong evidence of ownership, but who yet were not the owners, and the purchasers have been obliged to surrender the goods to the true owners, though wholly without remedy for the money paid. There are other hard and distressing cases of advances made honestly and fairly by auctioneers and commission merchants upon pledge of goods by persons apparently having the right to pledge, but who, in fact, had not any such right, and the pledgees have been subject to the loss of them by the claim of the rightful owner. These are hazards to which persons in business are continually exposed by the operation of this universal principle, that a man's property cannot be taken from him without his consent. Why should the carrier be exempt from the cp based upon the universally recognized principle that no per son's property can be taken from him without his consent, expressed or implied. It is not a harsh rule, as applied to common carriers, since they always have the right to demand of the consignor their transportation charges in advance. And the rights of a connecting road are no better in this respect than those of the initial carrier.71 Sec. 885. (§ 491a.) Same subject-Lien exists where goods received from one clothed with apparent authority by owner.But where, on the other hand, the owner of the goods has clothed another with apparent authority to deal for him with reference to the goods, and the carrier receives the goods from such person, it is held that he is entitled to his lien.72 This question has most frequently arisen in cases where the last of two or more connecting carriers claims a lien upon the goods, which is disputed on the ground that the delivery to ered them to him, on the ground that the bailor was not the true owner, and therefore not entitled to the goods. The common carrier is responsible for the wrong delivery of goods, though innocently done, upon a forged order. Why should not his obligation to receive goods exempt him from the necessity of determining the right of the person to whom he delivers the goods, as well as from the necessity of determining the right of the persons from whom he receives goods?" eration of this universal principle? Why should not the principle of caveat emptor apply to him? The reason, and the only reason given, is, that he is obliged to receive goods to carry, and should therefore have the right to detain the goods for his pay. But he is not bound to receive goods from a wrong-doer. He is bound only to receive goods from one who may rightfully deliver them to him, and he can look to the title as well as persons in other pursuits and situations in life. Nor is a carrier bound to receive goods unless the freight or pay for the carriage is first paid to him; and he may in all cases secure the payment of the carriage in advance. In the case of King v. Richards, 6 Whart. 418, it was decided that a carrier may defend himself from a claim for 72. Vaughan v. Railroad Co., 13 goods by the person who deliv- R. I. 578. 71. Railway Co. v. Tolbert, 123 Ga. 378, 51 S. E. Rep. 401. And if the carrier sells the goods to satisfy his freight charges, he will be guilty of a conversion. Siefert v. Railway Co. (Tex. Civ. App.) 57 S. W. Rep. 899. See post, § 889. |