where it was the fault of the owner or shipper that such apparent cause for seizure existed.1 It has been held that the carrier of goods cannot defend against an action for injury to them, on the ground that the sender, a corporation, could not acquire legal title to them.(rr) Nor is the carrier liable where the goods are thrown overboard from necessity, to save life or property; (s) if to save property, all the property that is saved must contribute to make up the loss under what is termed in the mercantile law, a general average. (t) Nor if the goods perish from inherent defect, (u) (rr) Farmers Bank v. Detroit, &c. R. R. Co. 17 Wis. 372. swept overboard by the action of the wind or waves, or cast into the sea by command of the master, in order to protect the vessel and crew, is not entitled to the benefit of a general average. The cargo on deck, from its situation, increases the difficulty of navigating the ship, and is more exposed to peril than that which is under cover; and, if swept away or cast overboard, the owner must bear the loss, without contribution from the owners of the vessel and the cargo under hatches. But this case does not fall within the operation of this rule. Propellers are a class of vessels but recently introduced in the navigation of the lakes, to which, from the peculiarity of their construction, and the general usage respecting them, this general rule is not applicable. They are double-deckers with two holds. By the general custom prevailing in reference to them, goods stowed on the main deck, or upper hold, are regarded as under hatches, and as safe as those stowed in the lower hold, or where the cargo in ordinary vessels is only considered as under cover. The master is allowed by this general custom to stow the cargo either in the hold, or on the main deck, at his convenience. No distinction is made in the price of transportation by the carrier or in the rates of insurance by the underwriter. The cargo below and between decks is put on the same footing. This universal usage, resulting from the character of the vessel, must govern the rights and liabilities of the owners of the vessel and cargo. The owner of goods, which are stowed on the main deck of a propeller, and necessarily cast overboard by the direction of the master, to preserve the vessel and crew, is, therefore, entitled to the benefit of a general average, as much as the owner of goods that are stowed in the hold would be, under like circumstances." (s) Mouse's case, 12 Rep. 63; Bird v. Astcock, 2 Bulst. 280; s. c. 2 Roll. Abr. 567; Halwerson v. Cole, 1 Speers, 321. In Keurig. Eggleston, Aleyn, 93, it is said that Rolle, C. J., cited Barcroft's case, "where a box of jewels was delivered to a ferryman, who, knowing not what was in it, and being in a tempest, threw it overboard into the sea; and resolved that he should answer for it." But Sir William Jones, in commenting upon this case, says: "I cannot help suspecting that there was proof in this case of culpable negligence, and probably the casket was both small and light enough to have been kept 'onger on board than other goods; for in the case of a Gravesend barge, cited on the bench by Lord Coke, it appears that the pack which was thrown overboard in a tempest, and for which the bargeman was held not answerable, was of great value and great weight; although this last circumstance be omitted by Rolle, who says only that a master of the vessel had no information of its contents." See Jones on Bailm. 108. (t) But the owners of goods shipped on deck, and thrown overboard in a storm, are not entitled to general average; nor is the owner of the vessel liable for them as a carrier, in such case. Smith v. Wright, 1 Caines, 43; Lenox v. United Ins. Co. 3 Johns. Cas. 178; The Rowena, Ware, 322. But in Gillett v. Ellis, 11 Ill. 579, where goods stowed on the main deck of a propeller were necessarily cast overboard in a tempest by the order of the master, to preserve the vessel and crew, it was held, that the owner of the goods was entitled to the benefit of a general average. And per Treat, C. J. "It is insisted that the plaintiff cannot claim contribution, be cause his goods were stowed on the deck of the vessel. The general rule undoubt edly is, that the owner of the goods which are placed on the deck of a ship, and are But see Kiff v. Old Colony, &c. Ry. Co. 117 Mass. 591. See also ante, p. * 161 and note (rr). (u) Farrar v. Adams, Bul. N. P. 69; Clark v. Barnwell, 12 How. 272. *nor if the owner or shipper has been negligent or *203 fraudulent in not disclosing the peculiar nature of goods requiring peculiar care, by the want of which care they have perished or suffered injury. (v) But the carrier is bound to take all such reasonable care of goods as he knows or should know to be necessary for them. If the carrier, on the ground of his liability for damages to the goods he undertook to transport, pays for such damages, it is equivalent to a delivery of them in safety, and re-establishes his claim for freight. (w) SECTION X. WHERE A THIRD PARTY CLAIMS THE GOODS. One question in regard to the carrier's obligation to deliver goods to the shipper or consignor, has been much agitated, and perhaps is not quite settled. It arises in the case of another party claiming the goods as owner, and taking them in that character from the carrier. Will such taking excuse the carrier for non-delivery? If the goods are demanded from him by a third. party on this ground, can he deliver the goods and justify his conduct? It is quite certain that the carrier cannot himself raise the question of title in a third person, and on that ground refuse delivery to the party originally holding them. (x) And it is undoubtedly the general rule, that the carrier cannot deny *the title of the party from whom he has received the *204 goods for transportation. In general, no agent can defend against the action of his principal, by setting up the jus tertii in (e) Edwards v. Sherratt, 1 East, 604; Titchburne & White, 1 Stra. 145; Batson v. Donovan, 4 B. & Áld. 21. 101. (w) Hammond v. McClures, 1 Bay, (r) Anon., cited in Laclouch v. Towle, 3 Esp. 114. This was a case tried before Mr. Justice Gould, and was to the following effect. A carrier had a parcel of goods delivered to him, to be carried from Maidstone to London. While the goods lay at his warehouse, a person came there who said the goods were his, and claimed them from the carrier; the carrier said he could not deliver them; but that if he was indemnified he would keep them, and not deliver them according to order. An indemnity was given; and the goods not being delivered according to order, the party by whom they were delivered to the carrier brought an action against the carrier. The learned judge would not permit him to set up any question of property out of the plaintiff; and held that he, having received the goods from him, was precluded from questioning his title, or showing a property in any other person. And Lord Kenyon, before whom the case was cited, admitted it to be law. See also ante, p. * 142, note (f), and Great Western R. R. Co. v. McComas, 33 Ill. 185. his own favor. (y) On the other hand, if the carrier delivers them to a third party, and it can be shown in an action against him that this third party was the actual and lawful owner, and that the plaintiff, who delivered the goods to the carrier, had no right to them whatever, this certainly is a sufficient defence. (z) It is held, in general, that if he does not yield to an adverse claim by a third party, he is liable to an action, in case the title *205 of this party be good. (a) The carrier may have his interpleader in equity to ascertain who has the right; but it is not easy to see what adequate means of self-protection he has at common law. And yet he should be permitted, in some way, . (y) Nickolson v. Knowles, 5 Madd. 47; Myler v. Fitzpatrick, 6 Mad. & G. 360; Dixson v. Hammond, 2 B. & Ald. 310; Roberts v. Ogilby, 9 Price, 269; Hardman v. Willcock, 9 Bing 382, n. (a); Bates v. Stanton, 1 Duer, 79. () This was settled after much consideration, in King v. Richards, 6 Whart. 418. The defendants in that case were common carriers of goods between New York and Philadelphia, and had signed a receipt of certain goods as received of A, which they promised to deliver to his order. In trover by the indorsees of this paper, who had made advances on the goods, it was held, that the defendants might prove that A had no title to the goods; that they had been fraudulently obtained by him from the true owner; and that upon demand made, they had delivered them up to the latter. Kennedy, J., said: "It is said that it would be a breach of trust or an act of treachery, on the part of the bailee, to deliver the goods, even on demand, to the true owner, notwithstanding he has received them from a wrong-doer, because he promised to restore the goods to such wrong-doer. If the bailee in such case receive the goods from the bailor innocently, under the impression made by the bailor that he is the owner thereof, or has the right to dispose of them in the manner he is doing, and therefore promises to return the goods to the bailor, it is very obvious that such a promise ought not to be regarded as binding, because obtained through a false impression, made wilfully by the bailor; and truth, which lies at the foundation of justice, as well as all moral excellence, would seem to require, in every such case, that the goods should be delivered up to the true owner, especially if he demand the same instead of the wrongful bailor. But if the bailee knew at the time he received the goods, and made the promise to redeliver them to the bailor, with a view to favor the bailor, that the latter had come wrongfully by them, either by hav ing taken them tortiously or feloniously from the owner; then the bailee thereby became a participant in the fraud or the felony, and it would be abhorrent to every principle of justice that he should be protected under such circumstances against the demand or claim of the owner. This promise, however, of the bailee is said to be binding on him only, and is not such as his personal representatives are bound to regard; and the reason assigned for this is because the goods have come to their possession by operation of law. This doctrine, if it were to be allowed, would certainly be singularly anomalous, and unlike, in its effect, to any other promise recognized by the law as binding." See also Bates v. Stanton, 1 Duer, 79. The doctrine of the text is fully sus tained in the case of Sheridan v. The New Quay Co., 93 Eng. C. L. 618. In giving the judgment of the court, Willes, J., says: "The defendants were common carriers and therefore bound to receive the goods for carriage. They could make no inquiry as to the ownership. They have not voluntarily raised the question; it was raised by the demand of the real owner before the defendants had parted with the goods. The law would have protected them against the real owner if they had delivered the goods in pursuance of their employment, without notice of his claim. It ought equally to protect them against the pseudo owner, from whom they could not refuse to receive the goods, in the present event of the real owner claiming the goods, and their being given up to him." See also The Idaho, 93 U. S. 575; Young v. East Alabama Ry. Co. 80 Ala. 100; American Ex Co v. Greenhalgh, 80 Ill. 68; Wolfe v. Missouri Pac. Ry. Co., 97 Mo. 473; Western Trans Co. v. Barber, 56 N. Y. 544; Wells v. American Ex. Co., 55 Wis. 23. (a) Wilson v. Anderton, 1 B. & Ad. 450. And see cases in preceding note. to demand security of the party whose title seems to him the better, and to whom he is therefore willing to give the goods. And whenever security is refused, there should be no recovery against him, unless the better title of the person claiming the goods was obvious and certain, or there were other circumstances indicating that the carrier had not acted with entire good faith or proper discretion. But, in the present state of the authorities, it seems that if the carrier be called upon by such antagonistic claimants, he must decide between them at his own peril. If the goods are stopped in transitu, this would involve questions which could be answered only by the law of "stoppage in transitu," which is elsewhere considered. 1 This is sometimes fixed by law; as for incorporated companies, ferries, etc. Where it is not so fixed, the carrier may determine it himself. But having adopted and made known a usual rate, he is so far bound by it, that, on tender of this rate, he must receive the goods, and can recover no more if they are not prepaid and he carries them; and whether it be fixed by law, or by his own. established usage, it must be applied equally and indifferently; all persons being charged the same price for carriage of the same quantity of similar goods for the same distance. (b)2 Where, however, it is not fixed by law, the carrier may change it at his discretion, and all parties are bound who have, or might have, but for their own fault, seasonable knowledge of such change. If the hire to which he is entitled be not paid, he is not bound to deliver the goods; and if he now retains them in his warehouse (b) See ante, p. 175, note (k). It seems that although a carrier need not receive goods until the price of carriage is paid, yet if he does so receive them he can maintain no action for their carriage until the goods are delivered. Barnes v. Marshall, 14 E. L. & E. 45 ; s. c. 18 Q. B. 785. 1 It was held that trustee process would lie against a common carrier, having in its possession within the State a sealed package of money in course of transportation to the defendant. Adams v. Scott, 104 Mass. 164. But in Illinois Central R. R. Co. v Cobb, 48 Ill. 402, it was held that whatever might be the case as to goods lying in a depot, goods actually being transported could not be garnished. Where rates of freight are fixed by statute, an unlawful excess paid under protest can be recovered back with interest, although at the time the action is brought the statute has been repealed. Graham v. Chicago, &c. R. Co., 53 Wis. 473. — K. or place of business, he is liable, in case of loss or injury, only for negligence. His liability is no longer that of a common carrier, but that of a depositary for hire or gratuitously, as the case may be; (c) for he now holds the goods by virtue of the right we shall now proceed to consider. SECTION XII. OF THE LIEN AND AGENCY OF THE CARRIER. Whether a private carrier has a lien on the goods for his freight, is not, as we have already said, determined by the Generally, perhaps, it has been considered * 207 * authorities. that one of the distinctions between the private carrier and the common carrier is, that the first has no such lien, while the latter has, and has had for centuries. (d) No part of the law of bailments is more firmly established than that the common carrier has this lien. He may not only refuse to carry goods unless the freight is paid to him, but if he carry them, and the freight is withheld, he may retain the goods, and obtain his freight from them in any of the ways in which a party enforces a lien on personal property. (e) But a common carrier can acquire no lien on goods belonging to the United States Government for services rendered in transporting such goods. (f) And while he holds goods on this ground, they are not at his risk as a common carrier, for he is responsible only as any other party who holds property as security for debt. 2 (c) Young v. Smith, 3 Dana, 91. See ante, p. *200, note (m). (d) Skinner v. Upshaw, 2 Ld. Raym. 752; Hunt v. Haskell, 24 Me. 339; Hayward v. Middleton, 1 Mills, Const. 186; Ellis v. James, 5 Ohio, 88; Bowman v. Hilton, 11 Ohio, 303; Fuller v. Bradley, 25 Pa. 120. (e) See Hunt v. Haskell, 24 Me. 339; Fox v. McGregor, 11 Barb. 41. A relinquishment of possession by a carrier, or other person who has a lien on property, is an abandonment of the lien. By a transfer of the possession, the holder is deemed to yield up the security he has by means of the custody of the property, and to trust only to the responsibility of the owner or other person liable for the charge. Bai- 1 The statement in the text may be doubted. 2 Wyo. 170. 2 Georgia R. R. &c. Co. v. Murrah, 85 Ga. 343. Union Pac. Ry. Co. v. United States, |