
    Boston and Maine Railroad vs. William A. Brown & another.
    A common carrier, from whom part of a consignment of goods is replevied after the deliv cry of another part, and before the arrival of a third part, may recover freight on the goods already delivered, and also on those which arrive and are taken by the officer and delivered to the consignee after the beginning of the service of the replevin; but not on the goods replevied, and for which judgment is afterwards given on the replevin for the consignee.
    Action of contract to recover freight on twenty-five hundred bushels of wheat, carried by the plaintiffs, and consigned to the defendants by certain bills of lading, by which the plaintiffs were bound to deliver the same to the defendants at the plaintiffs’ depot in Boston, on the defendants paying freight at the agreed price of twenty cents per bushel. The case was submitted to the decision of the court upon the following facts :
    On or about the 31st of March 1857, all but about three hundred bushels had arrived at the plaintiffs’ depot in Boston; the defendants had had notice thereof from the plaintiffs, had been requested to pay the freight, and had given their order on the plaintiffs for the delivery of the wheat to a third party, who had also received and carried away about six hundred bushels, when, a controversy having arisen as to the time and manner of payment of freight and delivery of the wheat, and the plaintiffs refusing to deliver the remainder, the defendants brought an action of replevin against the plaintiffs for two thousand bushels of the wheat, the part supposed then to remain undelivered. The three hundred bushels aforesaid came into the plaintiffs’ depot during the delivery, by the officer who served the replevin writ, of the wheat which was already there, and with that was taken by the officer, and delivered to the defendants on their order. The replevin was pending when this action was brought, and verdict and judgment have since been rendered therein for the plaintiffs in replevin and defendants in this action for sixteen hundred bushels, and for the other party for the three hundred bushels.
    
      J. W Rollins, for the plaintiffs.
    
      W. Brigham, for the defendants.
   Merrick, J.

It appears, from the agreed statement of facts, that the wheat which' the plaintiffs contracted to transfer was not all carried at one and the same time, but from time to time in successive trains. In such case it was their duty, upon the arrival of any part of it at the termination of the transportation in their depot, to deliver it, subject only to their lien for the freight earned, immediately to the defendants; and upon such delivery to them the consignees became indebted for the proper charges upon it. This action therefore may be maintained to recover for the freight of all the wheat received by the defendants before then- writ of replevin was sued out; and also for that which was taken by the officer and delivered to them while the writ was being served; for no demand of this part of the grain had been made on the plaintiffs, nor had there been any refusal on their part to deliver it. The rights of the parties in respect to it stood therefore upon the same ground as if it had, without objection, been delivered by the one, and accepted by the other party. But as to that part of the wheat the possession of which was obtained by the defendants only under and by force of their replevin writ, and which it appears from the judgment rendered in that suit the plaintiff had unlawfully withheld, they cannot recover for the freight in an action commenced while that suit was pending. The result from the whole of the facts stated therefore is, that judgment in this action is to be rendered for the plaintiffs for the amount of the freight of the two parcels, one of which was received by the defendants before, and the other after, they sued out their writ of replevin.  