
    David Franks v. Michael Stivers.
    THIS was an action of Trover for three barrels of spirits, and one of sherry wine. The case was thus. Stivers, a waggoner, undertook, at Philadelphia, to carry these and other goods from Philadelphia to the mouth of Buffaloe, on the Ohio, at a certain place ; received part of the money at Philadelphia, and was to receive the rest on the delivery of the goods to N. M'Farlane, at the mouth of Buffaloe.
    
    Before Stivers arrived at Pittsburgh, on his way to Buffaloe, M'Farlane died; and L. Brinson, an agent of Franks, in room of M'Farlane, agreed to take the goods at Pittsburgh, and send them to Buffaloe by water, deducting a certain part of the agreed price of carriage. The goods were accordingly delivered at Pittsburgh, except the goods in question, which were detained for the carriage, and stored up sixteen weeks; after which on reasonable advertisement, they were sold by Stivers, at public sale. Taking all things into view, there then remained a balance in Stiver’s hands of 5l. 6s. 2d. The goods were all bought by the agent of Franks, for his use, so that he suffered no damage, but from not having the overplus of 5l. 6s. 2d.
    
    Brackenridge, for the defendant.
    
      Stivers, a common carrier, had a right to retain till the carriage was paid. The inconvenience would be intolerable, if an obstinate owner might let the goods lie as long as he pleases.—The carrier, at a distance from home, having no place to keep the goods, might be obliged to pay storage, till, perhaps, the whole value of the goods be consumed, and no value remain, to satisfy the carriage. The carrier, trusting to the price of his carriage, has, perhaps, nothing else, to support himself and team, on his way home again. Therefore, having performed his service, by carrying the goods to the place agreed on, he has not only a lien on the whole goods, but, on refusal of payment, an absolute property in so much of them, as will pay the carriage. This is not like the case of a pledge, where the parties have no veiling of the property in view, and where the owner may have his goods, on payment of the money, and the lender, having no special time of payment, has no view to any inconvenience, that may happen. This is a new case: for, in former cases, the retaining of the goods has been a sufficient compulsion to pay the carriage. And, in this case, the sale of the goods has operated merely in the same manner, as a compulsion on the owners, to come forward, take their goods, and pay the carriage: for the owner has bought all, and got the goods, and so has received no damage except from the non-payment of the balance remaining in the defendant’s hand. For this, a complete tender not having been made, there must be a verdict.
    
      2 Ld. Ray, 752.
    
    2 Esp. 345.
    
      
      Woods, for the plaintiff.
    The inconvenience would be greater, if a carrier could immediately fell the goods, than if he must wait for his price, till the owner come and claim them. For, generally, the owner is under sufficient inducement from the value of the goods, to pay their carriage, and take them away. The power claimed for carriers, and exercised by the defendant, is against all law. And the court ought to declare so.
   President.

As it is admitted, that there ought to be a verdict against the defendant for the surplus; as the want of this is the only real damage, which the plaintiff has suffered ; and as the sale was occasioned by his own gross delinquency ; this does not seem to be a case proper for damages beyond mere compensation ; and it is therefore unecessary for us, to say any thing as to the right of carriers, in such cases; and perhaps, it will conduce most to justice, if they and owners, have a respect for the rights of each other.

Verdict for plaintiff accordingly.  