
    D'Anjou & Ball vs. Deagle.
    Appeal from Baltimore County Court. This was an action on the case against the defendant, (now appellee,) as a common carrier of goods and chattels from Baltimore to Norfolk, for negligence, &c. The general issue was pleaded. At the trial the plaintiffs, (now appellants,) gave in evidence.,, that the defendant, on the 20 tV of April 18.03, and before and afterwards, was the proprietor and owner of a packet or vessel, which he employed in carrying and transporting passengers and merchandise from the port of Baltimore to the port of Norfolk in Virginia, and thence back to Baltimore, for hire and reward. That the plaintiffs had directed J. and It, IC. Lowry of Baltimore, to bartér certain chairs of the plaintiffs for a bale of Ma~ drass handkerchiefs of the value of §200, and to ship íhé same for their account and risk, on hoard the said packet, in order to be transported to Norfolk, and there delivered io the plaintiffs. That J. & II. K. Lowry, pursuant to the ihsíruciións of the plaintiffs, committed the bale of handkerchiefs to one Cannon, their clerk and assistant, With direction to put them on board the packet belonging io the defendant, in order that they might be carried to Norfolk, and there delivered to the plaintiffs. That Cannon went on board the packet with the bale of handkerchiefs, and not finding the captain there, he delivered the same to a boy named Peter Florey, who was then in the employ of the defendant, and wlio was called cabin-boy of the vessel, but who was proved to have usually received small packages, or bundles of goods or merchandize, gent on board the vessel to be forwarded to Norfolk, when they were of a size sufficient to be stowed away in the cabin, and requested him to take particular care of the stole, and that they belonged to the plaintiffs, to Whom they were to be delivered on the arrival of the vessel at Norfolk. They also gave in evidence, that small packages of merchandize, which were intended to be sent to Norfolk in the vessel of the defendant, liad been frequently committed to the care of Peter Florey, employed as aforesaid, lu the presence and view of the defendant, and that he never countermanded such delivery, or’in any way complained that the same was irregular. That the bale of handkerchiefs never was delivered to the plaintiffs. The defendant then gave in evidence, that the plaintiffs, finding that the handkerchiefs did not come to hand, afterwards retained certain moneys of J. and M. K. Lowry, then in their hands, arising from the sale of a quantity of butter, consigned to the plaintiffs by I. and R. K. Lovory, to the amount of the price and value of the handkerchiefs, and as and for satisfaction and payment thereof. He also gave in evidence, that the recovery in this cause was to be for the tsse of J. and R. K, Lowry, and that they had ordered the suit in this behalf to be instituted and conducted. He then prayed the court to direct the jury, that if (lie jury should, from the evidence, be of opinion that the plaintiffs applied the proceeds of the butter, consigned to them by J. and R. K. Lowry, to satisfy and pay themselves for the handkerchiefs which were not delivered, and that J. and R. K. Lowry have assented to that act, then that the plaintiffs upon the record are not entitled to recover in this form of action. This opinion and .direction the court £.Nicholson, Ch. J. and Hollingsworth and Jones, A. J.] accordingly gave. The plaintiffs excepted; and the verdict and judgment being against them they appealed to this court.
    
      tnau action a« gain»t a common earner* where the plaintiffs diieeted J Í, to barter certain chairs for a bale of handker chiefs, and shin them on board the Norfolk packet, to be transported to the plaintiffs, ¿ I, had a bale ot handkerchiefs delivered on board lh<? packet tu the cabin boy, iu order that it might be carried to N?r/o#c, and there delivered to the plaintiffs? % hwt it never was dcliverud'to the plaintiffs, anti they retained certain moneys of J L in their hands, arising from the sale of butter consigiud to them, to the amount of the price of the bale of haudkecchier|. as and for satisfaction. .Evidence was given that the recovery in. this cause was to be for. the uae at 5 1, — Heldt that ihe action could be sustained*
    
      The cause was argued before Polk, Buchanan, and Earle, J. by
    
      Hinder, for the Appellants;
    and by
    
      Stephen, for the Appellee.
   JUDSMENT REVERSED, AND PROCEDENDO AWARDED»  