of them," and, consequently, that the defendant was not liable beyond the value of the vessel and freight. The preceding statute afforded a very inadequate protection to the owners of vessels, for they still remained liable for the full amount of goods lost by robbery, embezzlement, &c. to which the master or mariners were not privy, and the case of a loss by fire was wholly unprovided for by that statute; to remedy these inconveniences, and for the further encouragement of trade and navigation, the statute 26 G. 3. c. 86, s. 1, has confined the liability of the owners of vessels for any loss or damage, by reason of any robbery, embezzlement, &c. without the privity of the owners, to the value of the vessel and freight, although the master or mariners are not concerned in, or privy to, such robbery, embezzlement, &c. The second section exempts the owners of vessels entirely from answering for any loss by fire. And by the third section," the owners of vessels shall not be liable to answer for any loss happening to any gold, silver, diamonds, watches, jewels, or precious stones, by reason of any robbery, embezzlement, making away with, or secreting thereof, unless the owner or shipper, at the time of shipping, insert in his bill of lading, or otherwise declare in writing to the master or owner of the vessel, the nature, quality, and value of such gold, &c." The fourth section directs, that the freighters or proprietors shall receive satisfaction in average in proportion to their respective losses, if the value of vessel and amount of freight shall not be sufficient to make them full compensation; and empowers the freighters or proprietors, or any of them, in behalf of himself and the other proprietors, or the owners of the vessel, to exhibit a bill in equity for the discovery of the amount of the losses, and also of the value of the vessel and freight, and for an equal distribution and payment thereof among the freighters in proportion to their losses; provided that, where the part-owners of the vessel exhibit the bill, they shall annex an affidavit, negativing collusion with any of the defendants; and shall thereby offer to pay the value of the vessel and freight, as the court shall direct, whereupon the court shall ascertain the value, and direct payment thereof, as in the case of bills of interpleader. See further provisions on this subject in stat. 53 Geo. 3. c. 159, and Gale v. Laurie, 5 B. and C. 156.

The preceding statutes do not affect the liability of masters and mariners".

By stat. 3 and 4 W. and M. c. 12. s. 24. "Justices of the peace of every county and place in England or Wales, are

n See 7 G. 2. c. 15. s. 4. 26 G. 3. c. 36. s. 5. 53 Geo. 3. c. 159. s. 4.

empowered at the next quarter or general sessions after Easterday, yearly, to assess and rate the prices of all land carriage of goods, brought into any place within their jurisdiction, by any common waggoner or carrier, and to certify the rates to the mayors and chief officers of the market towns within their jurisdiction, to be hung up in some public place; and waggoners or carriers taking more than the rate fixed, shall forfeit 51. to be levied by distress and sale of goods, by warrant of two justices, where the waggoners or carriers reside." And by stat. 21 G. 2. c. 28. s. 3, reciting the preceding provision, and further, that no rates for the carriage of goods from distant parts of the kingdom to London and places adjacent, had been yet settled, and that several common waggoners had thence taken occasion to enhance the price of carriage of goods to the prejudice of trade, it is enacted, "that every common waggoner or carrier, who shall demand and take any greater price for the bringing of goods to London, or to any place within the bills of mortality, than is settled by the J. P. for the county or place whence such goods are brought, for the carrying goods from London to such county or place, shall for every such offence forfeit and pay 57. to the use of the party grieved; to be recovered as by stat. 3 and 4 W. and M. or by distress and sale of goods, by warrant under the hands and seals of two J. P. for the counties of Middlesex, Surrey, city of London, or Westminster; and the respective clerks of the peace are directed after Easter sessions, yearly, to certify to the Lord Mayor of London, and to the respective clerks of the peace for Middlesex, Surrey, and Westminster, the rates so made; which certificate, or an attested copy thereof signed by the officer, to whom the same shall be so transmitted, shall be evidence of the rates and prices set for the carrying goods to any county or place." A doubt is expressed in a note to Kirkman v. Shawcross, 6 T. R. 18. n. (a), whether the last-mentioned statute is not wholly repealed by stat. 7 Geo. 3. c. 40.; but upon an examination of that statute, s. 60, it will be found that there is an express exception of what relates to the rate or price for carriage of goods. It seems, therefore, that the preceding clause is still in force.

III. Of the Lien of Carriers.

By the custom of the realm, a common carrier is bound to carry the goods of the subject for a reasonable reward, to be therefore paid, by force of which he has a lien as far as the carriage price of the particular goods, but not to any greater extent. As of late years common carriers have on the one hand limited their responsibility by general notices, so on the other hand they have been attempting to extend their lien, so as to cover their general balances, or, in other words, they have claimed a general lien. In Rushforth v. Hadfield, 6 East's R. 519, 7 East's R. 224, it seems to have been admitted by the court, that the lien claimed by a carrier for his general balance, was not founded on the common law, but that such a lien might arise by contract between the owner of the goods and the carrier: and that usage of trade, if general, uniform, and long established, was evidence of such contract (13). But it was resolved, that, as general liens were

o Skinner v. Upshaw, Lord Raym. 752.

(13) See Naylor v. Mangles, 1 Esp. N. P. C. 109, where it was contended, that a wharfinger had a lien for his general balance; Lord Kenyon, C. J. said, "that liens were either by common law, usage, or agreement. Liens by the common law were given where a party was obliged by law to receive goods, &c., in which case, as the law imposed the burthen, it also gave him the power of retaining for his indemnity. This was the case of innkeepers; that a lien from usage was a matter of evidence. The usage in the present case had been proved so often, he said, it should be considered as a settled point that wharfingers had the lien contended for." And in Spears v. Hartly, 3 Esp. Ñ. P. C. 81, Lord Eldon, C. J. (on the authority of the preceding case) held, that a wharfinger had a lien for his general balance; and further, that, although the balance was of more than six years standing, the wharfinger might retain the goods by virtue of his general lien, for the debt was not discharged by the operation of the Statute of Limitations, but the remedy only. See also Aspinall, assignee of Howarth v. Pickford, 3 Bos. and Pul. 44. n. (a) Trover for goods. The defence was, that the goods were put by Howarth into the hands of the defendant, as a carrier, to be forwarded from Manchester to his warehouse in London, and that the defendant was entitled to retain against the estate for the general balance due from H. for the carriage of the goods. This right was established by evidence of the defendant having before claimed and been allowed to retain for his general balance, both against bank

not to be favoured, the party who sets up such a claim ought to make out a very strong case, and evidence of a few recent instances of detainer by carriers, for their general balance, would not be sufficient to furnish an inference, that the party who dealt with a carrier, had knowledge of the usage, and so to warrant a conclusion, that he contracted with reference to it, and adopted the general lien into the particular contract.

A carrier had given notice that all goods would be subject to a lien, not only for the freight of the particular goods, but also for any general balance due from their respective owners, goods having been sent by the carrier addressed to the order of J. S. a mere factor; it was holden P that the carrier had not, as against the real owner, any lien for the balance due from J. S. Query, whether, if the notice had been, that all goods, to whomsoever belonging, should be subject to a lien for any general balance that may be due from the persons to whom they are addressed, he would have any right to retain the goods for the balance due from I. S. ?

As liens at law exist only in cases where the party entitled to them has the possession of the goods; consequently, if a carrier parts with the possession of the goods, after the lien attaches, the lien is gone. An usage for carriers to retain goods, as a lien for a general balance of account between them and the consignees, does not affect the right of the consignor to stop the goods in transitu. A carrier' who, by the usage of a particular trade, is to be paid for the carriage of goods by the consignor, has not any right to detain them

p Wright v. Snell, 5 B. and A. 350.
q Oppenheim v. Russell, 3 Bos. and
Pul. 42.

r Butler v. Woolcot, 2 Bos. and Pul. N. R. 64.

rupt estates and solvent customers, and also by the evidence of a principal carrier on the western road to the same effect, respecting himself. "The onus of making out a right of general lien lies upon the wharfinger. There may be an usage in one place varying from that which prevails in another. When the usage is general and prevails to such an extent, that a party contracting with a wharfinger must be supposed conusant of it, then he will be bound by the terms of that usage; but then it should be generally known to prevail at that place. If there be any question as to the usage, the wharfinger should protect himself by imposing special terms, and he should give notice to his employer of the extent to which he claims a lien. If he neglects to do so, he cannot insist upon a right of general lien for any thing beyond the mere wharfage." Per Cur. Holderness v. Collinson, 7 B. and C. 212.

against the consignee for a general balance due to him for the carriage of other goods of the same sort, sent by the consignor.

IV. By whom Actions against Common Carriers ought to be brought.

In general the action against a carrier, for the non-delivery or loss of goods, must be brought by the person in whom the legal right of property in the goods in question is vested at the time; 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'. Hence where a tradesman orders goods to be sent by a carrier, as at the instant when the goods are delivered to the carrier, such delivery operates as a delivery to the purchaser, and the whole property (subject only to the right of stoppage in transitu by the seller) vests in the purchaser, he alone can maintain an action against the carrier for any loss or damage to the goods; and this rule holds as well where the particular carrier is not named by the purchaser' (14) as where he is"; and it holds as well in the case of a carrier by water as where the goods are conveyed by land.

The plaintiff had shipped goods* on board the Mercurius,

s Dawes v. Peck, 8 T. R. 330. 1 Atk. 248. S. P.

t Dutton v. Solomonson, 3 Bos, and Pul. 584.

u Dawes v. Peck, supra.

x Brown v. Hodgson, London Sittings, B. R. 2nd March, 1809, 2 Campb. 36.

(14) Delivery of goods by the vendor, on behalf of the vendee, to a carrier, although not named by the vendee, is a delivery to the vendee. Dutton v. Solomonson, 3 Bos. and Pul. 582. And the goods are, immediately upon the delivery to the carrier, at the risk of the vendee, although the carrier is to be paid by the vendor. King v. Meredith, 2 Campb. 639. The vendor is not bound to enter and ensure the goods with the carrier as above the limited value, without instructions for that purpose. Cothay v. Tute, 3 Campb. 129. But the delivery to the carrier ought to be in such a manner, as to furnish the purchaser with a remedy over against the carrier, in case of loss. Buckman v. Levi, 3 Campb. 414. See also Clarke v. Hutchins, 14 East, 475.