
    Shadrack Robinson vs. Joshua Baker.
    A common-carrier, who innocently receives goods from a wrongdoer, without the consent of the owner, express or implied, has no lien upon them for their carriage, against such owner.
    This was an action of replevin, for six hundred barrels of flour, tried before Dewey, J., and reported by him for the consideration of the whole court. The material facts are as follows : —
    The plaintiff, in October, 1847, by his agent, Joseph B. Gardner, of Buffalo, in the state of New York, purchased six hundred barrels of flour, which the agent caused to be put on board a canal-boat at Black Rock, on the 23d of October, 1847, to be transported to Albany. The boat was owned by a company, known by the name of the Old Clinton line, engaged in the business of common-carriers between Buffalo and Albany. On receiving the flour, the agent of the company executed and delivered to the plaintiff’s agent duplicate bills of lading, by which the company undertook to deliver the flour to Witt, the agent of the Western railroad, at East Albany. One of the bills of lading was sent to Witt, and the other to the plaintiff, at Boston.
    On the arrival of the flour at Albany, November 5th, 1847, Monteath and company, the agents there of the Old Clinton line, called on Witt, and informed him that the six hundred barrels of flour had arrived, and asked him if he would take it off the boat that day. Witt said he would not, without mentioning any time when he would receive the flour; but only that the boat must take its turn. Boats arriving at East Albany, consigned to Witt or to the Western railroad, were discharged in their turns ; and in the months of October and November, 1847, there was a detention at East Albany, in unlading, of from one to three days.
    The agents of the Old Clinton line at Albany thereupon shipped the flour to the city of New York, by a company known as the Albany and Canal line, engaged as common-carriers in the transportation of merchandise between the city of New York and Albany, and received from the agents of the company $433.08, as and for the freight of the flour from Black Rock to Albany, and requested the company to ship the flour from New York to Boston, for the plaintiff.
    On the arrival of the flour at New York, Hoyt, the agent of the Albany and Canal line there, shipped the same for Boston on board the schooner, Lady Suffolk, of which the defendant was master, consigned to Horafce Scudder and company, agents of the Albany and Canal line, at Boston; and Hoyt at the same time remitted to Scudder and company a bill of- exchange, drawn by him, as agent, upon the plaintiff, payable to Scudder and company, for $494.33, which included the freight from Black Rock to Albany, and from Albany to New York, with instructions to Scudder and company to deliver the flour to the plaintiff, on his paying or agreeing to pay the amount of the said bill of exchange, and, m addition thereto, the freight upon the flour from New York to Boston.
    On the arrival of the defendant’s vessel at Boston with the flour, November 23d, 1847, the plaintiff demanded the same, and the defendant refused to deliver it, on the ground that he had a lien thereon for the freight. The plaintiff refused to pay the freight, and commenced this action of replevin to recover the flour.
    It was in evidence, also, that in the spring of 1847, the plaintiff made a contract with the Western railroad corporation, to transport over their road all the flour which he might have during the year at Albany, or at places west of Albany, the quantity not to be less than twenty thousand barrels ; in consideration of which the railroad corporation agreed to transport the same from East Albany to Boston for thirty-two cents a barrel, being three cents a barrel less than the usual charge of transportation; but there was no proof that this contract was known to any one but the parties to it.
    It was further in evidence, that the usual time for the transportation of merchandise from Albany to Boston over the Western railroad was two days ; and that the price of flour at Boston, between the 10th and the 30th of November, 1847, declined from fifty to seventy-five cents a barrel.
    The plaintiff also introduced a letter addressed to him, under date of the 5th, and received by him on the 8th of November, 1847, from William Monteath and company, at Albany, in which they inform him that they had shipped his flour to New York, to be shipped from thence to Boston; that they had done so in consequence of the inability of the railroad corporation to receive the flour; and that this course would be better for the plaintiff than to have stored the flour, until the railroad company was able to receive it, which would have subjected the plaintiff to considerable expense. The plaintiff, in his answer, dated November 16th, 1847, which was also in evidence, desired to know by what authority Monteath and company sent the flour to New York; and informed them that there would be a loss upon it in consequence, of from $300 to $400. He added, that he should make his claim for damages as soon as the flour had arrived and been sold.
    
      The plaintiff, upon this evidence, requested the judge to instruct the jury as follows : —
    1. That the Old Clinton company never acquired any claim against the plaintiff for freight; because the flour was not delivered at East Albany to Witt, as by the bill of lading the company contracted to do.
    2. That the Old Clinton company, by diverting the course of the flour, and sending the same by the way of New York, if such diversion was without the consent of the plaintiff, lost the lien which they might otherwise have had for the freight thereof from Black Rock to East Albany.
    3. That the Old Clinton company, by parting with the possession of the flour, if this was done without the consent of the plaintiff, lost the lien which they otherwise might have had for the freight of it from Black Rock to East Albany.
    4. That the defendant was bound to ascertain the title of the Old Clinton company and of the Albany and Canal company ; and if these companies, or either of them, diverted the course of the flour, without the consent of the plaintiff, the defendant had no lien or right to detain the flour against the plaintiff, for the freights claimed by the companies, or for his own freight.
    5. That the defendant, by notice of the lien sought to be enforced in favor of the Old Clinton company, and of the Albany and Canal line, was so far put upon inquiry, that he must be considered as having knowledge of the terms and obligations, under which the Old Clinton company received the flour.
    6. That usage or custom was not competent or admissible for the purpose of controlling the express provisions of a written contract.
    The defendant objected, that to have carried the flour across the river from Albany to East Albany, would under the circumstances have been a vain and useless ceremony ; and that the offer of it made by Monteath to Witt was sufficient; and he asked the court to instruct the jury, that the plaintiff had ratified the diversion, if any, by Monteath and company, by reason and as a consequence of his neglect to reply to the letter of November 5th until the 16th of November.
    
      The presiding judge having stated, that assuming the rule of law to be correctly laid down by the counsel for the plaintiff, upon the first, second, third, and sixth points, presented as questions of law; yet, nevertheless, if the defendant received the flour at New York from an agent of a forwarding line from Albany, with a request to transport the same to Boston, for the lawful owner thereof, and the defendant received the flour in the ordinary course of his business and in good faith, for the purpose of transporting it to Boston, and in entire ignorance of the original contract for the transportation of the same by the Old Clinton line to East Albany, and that the plaintiff desired its transportation thence by railroad to Boston, but under the belief, that this was an ordinary case of transportation of flour put into his charge by an authorized agent; if the defendant had performed the service of transportation from New York to Boston, under such circumstances, he would be entitled to his reasonable charges for freight, and had-a lien upon the flour therefor, which he might enforce, and might lawfully detain the flour until the same was paid; and that irrespective of the other questions of law raised, this would justify the defendant in refusing to deliver the goods, until the payment was made for such freight.
    It was then proposed to have the jury inquire, whether or not Witt, the agent at East Albany, authorized or consented that Monteath and company should send the flour by the way of the city of New York to Boston ; upon which a verdict was returned, as appears of record, that Witt did not authorize Monteath and company to forward the flour by the way of New York.
    If the instruction to the jury was correct, or if the more ex tended claim of the defendant, namely, to recover for money paid, for transportation to Albany and thence to New York, is well sustained, then judgment is to be entered for the defendant, with a proper entry as to a return of the goods replevied.
    If upon none of these grounds, or others properly open upon the case stated, the defendant has a lien upon the flour, or a right to detain the same, then judgment is to be rendered for the plaintiff, with nominal damages.
    
      
      C. B. Goodrich, for the plaintiff.
    
      B. R. Curtis, for the defendant.
   Fletcher, J.

[After stating the facts, the instructions requested, and the instructions given.] As the ruling of the judge, that the defendant, as a carrier, had a lien for his freight, was placed upon grounds wholly independent of any rightful authority in the agents of the Old Clinton line and the Albany and Canal line, to divert the goods from the course in which the plaintiff had directed them to be sent, and to forward them by the defendant’s vessel, and wholly independent of the plaintiff’s consent, express or implied, the simple question raised in the case is, whether if a common-carrier honestly and fairly on his part, without any knowledge or suspicion of any wrong, receives goods from a wrongdoer, without the consent of the owner, express or implied, he may detain them against the true owner, until his freight or hire for carriage is paid; or to state the question in other words, whether if goods are stolen and delivered to a common-carrier, who receives them honestly and fairly in entire ignorance of the theft, he can detain them against the true owner, until the carriage is paid.

It is certainly remarkable, that there is so little to be found in the books of the law, upon a question which would seem likely to be constantly occurring in the ancient and extensive business of the carrier. In the case of York v. Grenaugh, 2 Ld. Ray. 866, the decision was, that if a horse is put at the stable of an inn by a guest, the innkeeper has a lien on the animal for his keep, whether the animal is the property of the guest or of some third party from whom it has been fraudulently taken or stolen. In that case, lord chief justice Holt cited the case of an Exeter common-carrier, where one stole goods and delivered them to the Exeter carrier, to be carried to Exeter; the right owner, finding the goods in possession of the carrier, demanded them of him; upon which the carrier refused to deliver them unless he was first paid for the carriage. The owner brought trover, and it was held, that the carrier might justify detaining the goods against the right owner for the carriage ; for when they were brought 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 a remedy for the premium due for the carnage. Powell, J., denied the authority of the case of the Exeter earner, but concurred in the decision as to the innkeeper. There is no other report of the case of the Exeter carrier to be found. Upon the authority of this statement of the case of the Exeter carrier, the law is laid down in some of the elementary treatises to be, that a carrier, who receives goods from a wrongdoer or thief, may detain them against the true owner until the carriage is paid.

In the case of King v. Richards, 6 Wharf. 418, the court, In giving an opinion upon another and entirely different and distinct point, incidentally recognized the doctrine of the case of the Exeter carrier. But until within six or seven years there was no direct adjudication upon this question except that re ferred to in York v. Grenough of the Exeter carrier. In 1843, there was a direct adjudication, upon the question now under consideration, in the supreme, court of Michigan, in the case of Fitch v. Newberry, 1 Doug. 1. The circumstances of that case were very similar to those in the present case. There the goods were diverted from the course authorized by the owner, and came to the hands of the carrier without the consent of the owner, express or implied; the carrier however was wholly ignorant of that, and supposed they were rightfully delivered to him; and he claimed the right to detain them until paid for the carriage. The owner refused to pay the freight, and brought an action of replevin for the goods. The decision was against the earner. The general principle settled was, that if a common-carrier obtain possession of goods wrongfully or without the consent of the owner, express or implied, and on demand refuse to deliver them to the owner, such owner may bring replevin for the goods or trover for their value. The case appears to have been very fully considered and the decision is supported by strong reasoning and a very elaborate examination of authorities. A very obvious distinction was supposed to exist between the cases of carriers and innkeepers, though the distinction did not affect the determination of the case.

This decision is supported by the case of Buskirk v. Purin, 2 Hall, 561. There property was sold on a condition, which the buyer failed to comply with, and shipped the goods on board the defendant’s vessel. On the defendant’s refusal to deliver the goods to the owner, he brought trover and was allowed to recover the value, although the defendants insisted on their right of lien for the freight.

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, 275, 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 a 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 subjected 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 operation 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 a right to detain the goods for his pay. But he is not bound to receive goods from a wrongdoer. 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 height 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 goods by the person who delivered 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 person from whom he receives goods ? Upon the whole, the court are satisfied, that upon the adjudged cases, as well as on general principles, the ruling in this case cannot be sustained, and that if a carrier receives goods, though innocently, from a wrongdoer, without the consent of the owner, express or implied, he cannot detain them against the true owner, until the freight or carriage is paid.  