and on account of the consignee, in an action Who must be plaintiff. against the ship-owner the consignee must be the plaintiff (n). And it is now clearly settled, that, even where no particular mode of conveyance is directed, the delivery to a carrier will vest the property in the purchaser (o); who ought therefore in all cases (except in the few special cases above adverted to) to be the plaintiff (p).

The liability of a common carrier differs in several respects from that of other bailees, and may therefore be more conveniently considered under a separate head.

I. BAILEES GENERALLY (9).

A warehouseman, or other bailee of the like Warehousedescription, is only bound to take such reasonable similar

(n) Brown v. Hodgson, 2 Campb. 36; Moores v. Hopper, 2 N. R. 411.

(0) Dutton v. Solomonson, 3 B. & P. 582; Godfrey v. Turzo, 3 P. Wms. 185.

(p) Snee v. Prescott, 1 Atk. 248; Jacobs v. Neilson, 3 Taunt. 423; Fragano v. Long, 6 D. & R. 283; S. C. 4 B. & C. 219; Evans v. Martlett, 1 Ld. Raym. 271; Colston v. Woolston, Selw. N. P. 1370, (8th Ed.)

(9) Under this head are intended to be included only bailees for reward for the custody of goods,—falling within that species of locatio, called locatio operis faciendi. It has been already observed, that, in strictness, the locatio of carrying of goods is but a species of the same; but as the law varies in respect of each, it is more convenient to consider them as distinct from each other. See above, p. 414, note (b).

man or

bailee.

E E

Duty.

Jus tertii.

care of the goods entrusted to him, as he ought to do of his own, and he is not liable for loss or damage arising from accident, without negligence on his own part(r). He is bound, however, to take as great precautions as in the case of his own property (s).

A warehouseman, or wharfinger, receiving goods to hold on behalf of the plaintiff, is not estopped from setting up the right of a third party (t). Otherwise, if he has actually acknowledged that he holds them for the plaintiff;-as, where he gives a written acknowledgment to the seller, that he holds the consignment on account of the purchaser (u). And

(r) Cailiff v. Danvers, Peake, 114; Finucane v. Small, 1 Esp. 315; Longman v. Calini, Abb. Shipp. 270, n.; Southcote's case, 4 Co. Rep. 83b; Lane v. Cotton, 1 Comyn, Rep. 100; Coggs v. Bernard, 2 Ld. Raym. 913. Sir W. Jones mentions three degrees of neglect ;-1. Culpa lata, gross neglect, which is the omission of that care which even inattentive and thoughtless men never fail to take of their own property; amounting, therefore, almost to a violation of good faith. 2. Culpa levis, ordinary neglect, which is the want of that diligence which the generality of mankind use in their own concerns. 3. Culpa levissima, slight neglect, which is the omission of that care which very attentive and vigilant persons take of their own goods. Bailm. p. 21, 22, 118. See 1 Moo. & Payne, 586. It is for the second degree of neglect that bailees for hire are liable.

(s) Clarke v. Earnshaw, Gow, 30.

(t) Ogle v. Atkinson, 1 Marsh. 323; S. C. 5 Taunt. 759. (u) Stonard v. Dunkin, 2 Campb. 344; Gosling v. Birnie, 7 Bingh. 339; S. C. 5 M. & P. 160. See Harman v. Anderson, 2 Campb. 243; Anon., cited 3 Esp. 115; Smith v. Cook, 2 C. & P. 276. See 1 Esp. 342.

ledgment.

it is immaterial whether the goods were in his Acknow possession at the time of making the acknowledgment, or whether they did not arrive until afterwards (x). But if his acknowledgment, and the promise to deliver the goods to the plaintiff, are conditional or qualified, trover cannot be supported unless the terms have been complied with (y).

maintain

A consignee cannot, in general, maintain trover When trover against the bailee, until he has paid all the ex- able. penses to which he is liable in respect of them (≈). Nor can he maintain trover against a bailee in whose custody the goods are placed, if the transfer of property (as between the vendee and vendor) has not been so far completed as to have enabled him to support trover against the vendor, had the goods remained in the possession of the latter. Thus, the vendee cannot maintain trover against a wharfinger with whom the goods are deposited, as long as anything remains to be done, which may affect the quantity of the goods agreed to be delivered (a). But if the bailee has accepted the

(x) Holl v. Griffin, 10 Bingh. 246; S. C. 3 M. & Sc. 732.

(y) Melling v. Kelshaw, 1 Cr. & Jer. 184; S. C. 1 Tyrwh. 109. (z) See Holderness v. Shackels, 8 B. & C. 612. The plaintiff in this case was not a vendee, but the principle is obviously applicable.

(a) Wallace v. Breeds, 13 East, 522. On this subject, Trover by Vendee against Vendor may be referred to. (See pp. 310, 314, et seq.; and cases there cited.) For when the real question is between the vendor and purchaser, it is obviously immaterial

Action against bailee.

Lien of bailee.

order generally, he cannot afterwards set up as a defence that the goods were not selected and appropriated at the time (b).

A bailee is entitled, independently of any special contract, to a particular lien upon the property in his hands (c). But he cannot claim to retain the goods upon a general lien against the owner, except where the right arises out of a contract express or implied (d). It was once held, that every special agreement was an implied waiver of any right of lien to which the party might be entitled; but it was afterwards decided, that a special agreement did not of itself destroy the right (e). If, however, it contains any provision inconsistent with the right, the lien cannot be claimed (ƒ). Therefore, where the usage was proved to be, that the importer was allowed a certain time to pay the wharfage dues, whether the goods were removed in the meantime

whether the vendor or a bailee may happen to be defendant in the action.

(b) Gillett v. Hill, 4 Tyrwh. 290. For, by attorning, as it were, to the order, the bailee is estopped from afterwards denying his liability; as a lessee cannot dispute the title of his lessor.

(c) Skinner v. Upshaw, 2 Ld. Raym. 752; Yorke v. Greenaugh, id. 866; Gray v. Chamberlain, 4 C. & P. 260.

(d) Holderness v. Collinson, 7 B. & C. 212; Rushforth v. Hadfield, 6 East, 519; Ditto v. Ditto, 7 East, 224; Wright v. Snell, 5 B. & A. 350; Butler v. Woolcott, 2 N. R. 64.

(e) Chase v. Westmore, 5 M. & S. 180. Supra, p. 183.
(f) Ib.

or not, it was held, that the bankruptcy of the Lien.
importer before the delivery to the vendee gave
the wharfinger no right of lien against the latter (g).

II. CARRIERS.

It is enacted by a recent statute, that no com- Carriers. Liability by mon carrier by land shall be liable for the loss of, or injury to, certain articles of property (enumerated in the Act), if the value exceed £10, unless at the time of delivery the value and nature be declared, and an increased charge be accepted (h). The carrier may in such cases demand an increased rate of charge, provided that he affixes, in a conspicuous part of his office or warehouse, the amount of such increased rates (i); and provided that, if required, he gives an acknowledgment of the receipt of the property, and the payment of the increased rate (k). Nothing contained in the Act is to affect any special contract, in respect of the conveyance of the goods, between the party and the carrier (1); and nothing in the Act shall be deemed to protect the carrier from the felonious acts of his servants, nor a servant from personal liability arising from his own neglect or misconduct (m).

(g) Crawshay v. Homfray, 4 B. & A. 50.

(h) 11 Geo. IV. & 1 Will. IV. c. 68, s. 1. See Owen v. Burnett, 4 Tyrwh. 133; Mayhew v. Nelson, 6 C. & P. 58.

(i) Id. section 2. [See a Form given 4 Tyrwh. 134, n.] (1) Id. section 6.

(k) Id. section 3. (m) Id. section 8.