And in an action against a railway for negligence, if the plaintiff show damage, resulting from an act of defendants, he makes a prima facie case, and the defendant must show that he was in the exercise of the requisite degree of care, or else that such a state of circumstances existed as rendered all exercise of care unavailing, and this is so although the act complained of is one, which, with proper care, does not ordinarily produce damage.

9

8

4. In a late English case, it is held, that if a railway company omit to deliver bundles of packed parcels, in time, with a view to injure the plaintiff's business, as a collector of parcels, and thereby *create a monopoly in themselves, they will be liable to the special damage resulting therefrom, but not otherwise.

5. Where a plan and models sent to compete for a prize were lost by the carriers, it was held, the proper measure of damages is the value of the labor and materials expended in making the articles, and not damages from losing the chance of obtaining the prize; the latter being too remote.10

that the master should forfeit his recognizance and not be delayed in returning with the vessel. The James Seddon, 12 Jur. N. S. 609. But in the case of Gee. v. Lancashire, and Yorksh. R. Co., 3 Law T. N. S. 328; s. c. 6 H. & N. 211, where an action was brought against a carrier for delay in delivering goods, when there was no special contract, and the judge directed the jury to find a certain sum for the wages of the plaintiff's servants, who were kept out of employment by the non-arrival of the goods; and also left it to the jury to name the amount the plaintiff should recover for the loss of profits for the same cause, it was held to be a misdirection, on the authority of Hadley v. Baxendale, 9 Exch. 341. The cases are somewhat numerous of late in the English courts, where the carrier, who acts in good faith and fails to deliver goods in such time as he might have done with proper diligence and therefore ought to have done, is held not liable for speculative loss of profits, but only for the particular loss upon the article thus failing to be delivered in proper time. Wilson v. Lancashire and Yorkshire Railw. Co. 9 C. B. N. S. 632; s. c. 7 Jur. N. S. 862; Collard v. Southeastern Railw. Co., 7 Jur. N. S. 950; Simmons v. Southeastern Railw. Co., 7 Jur. N. S. 849; Rice v. Baxendale, 7 H. & N. 96. If there is no market at the place of delivery, the jury may give the cost of the articles and reasonable expenses and profits. O'Hanlan v. Great W. R. Co., 11 Jur. N. S. 797. See also Tardos v. Ship Toulon, 14 La. Ann. 429.

8 Ellis v. Portsmouth & Raleigh Railw., 2 Iredell, 138.

• Crouch v. Great Northern Railw., 25 Law Jour. 137.

Lythgoe v. East Anglian Railw., 15 Jurist, 400. But where the owner of the goods sustains special damage, by reason of the goods being rendered unfit for the particular use for which they were procured, the jury may consider how

6. The consignor, who owns the goods, and sustains the injury from the damage or loss, is the proper party to bring the action against the carrier.11 In an action against the carrier for the loss of the plaintiff's goods, it is no answer that the goods were delivered to the defendant by one who, as consignor, claimed compensation for the loss, and that the defendant paid him as such consignor, without notice that he was not the owner of the goods.12 The decision here seems to go upon the ground that there was nothing in the case to indicate that the consignor was the owner of the goods; or that he was allowed to represent the plaintiff in any such way as naturally to mislead the defendants. It is unquestionably the duty of the carrier to see that he delivers goods to the party entitled, and if he do not, although he be misled by a gross fraud, or even by a forged order, he is not excused, but is liable in trover.13 And by parity of reason, if the goods are lost the carrier should, before he pays any one, ascertain whether the property of the goods were in him; otherwise he would pay in his own wrong, if it should turn out the property were in another, since the contract, by construction, is with the party entitled to claim the goods. And whether it be the consignor or consignee will depend upon circumstances readily learned upon inquiry.14 A warehouse-man is regarded in the light of a middle-man, and may even dispute the title of the party delivering goods to him, and in defence of an action of trover show that the title is in some third party, who has forbidden the goods being delivered to the bailor.15 This may be at variance.

much they are lessened in value thereby, and give damages accordingly. Hackett v. B. C. & M. R., 35 N. H. R. 390.

11 Sanford v. Housatonic Railw., 11 Cush. 155. But the consignee is primâ facie the owner of the goods, and, in the absence of proof to the contrary, will be so regarded. Arbuckle v. Thompson, 37 Penn. St. 170. And it is here said the consignee may accept the goods at an intermediate port or place.

12 Coombs v. Bristol & Exeter Railw., 3 H. & N. 1.

13 Ostander v. Brown, 15 Johns. 39; Hawkins v. Hoffman, 6 Hill, 588; Powell v. Myers, 26 Wendell, 591, Bronson, J.; Clarke v. Spence, 10 Watts, 337, Rogers, J.

14 Watson, B., in Coombs v. Bristol & Exeter Railw., 3 H. & N. 1.

15 Thorne v. Tilbury, 3 Hurls. & N. 534. See cases cited in the argument of this case. Where the owner of the goods.induces the carrier to carry them for

a less price by representing them of inferior value, he can only recover the

with some of the old cases and with much which may be found in the elementary books; but it is consistent with reason and justice, and will not be found embarrassing in practice, with one qualification, that the bailee of goods will be permitted to set up the jus tertii in his own defence, when he is so situated as to be made responsible to such party in case of a recovery by the present claimant, unless he do urge the claim of such other party in his own defence. Such a state of the case will occur always where the third party has demanded the thing of the bailee and forbid his delivering it to the bailor; and also where the bailment is so made as to create a trust in behalf of the real owner, or party justly entitled to demand possession.15

7. A receipt for the goods, by the consignee, acknowledging to have received them in good order, and in which he is requested to notice any errors therein, in twenty-four hours, or the carrier will consider himself discharged, does not estop the consignor, in such case, from suing the carrier for damage of the goods, although no notice thereof was given the carrier.11

8. Actions against carriers may be brought in the name of bailees, or agents, who have the rightful custody of the goods, and who make the bailment, or in the name of the owner.16

9. But it is well settled, that a recovery for the goods, of the first or any subsequent carrier, in the name of any one having either a general or special property in the goods, in an action properly instituted, will be a bar to any subsequent suit against the same person, at the suit of another party, having either a general or special property in the goods.17

10. Where the general property in the goods vests in the conamount he represented their value to be, in case of loss or damage. McCanee v. London & Northwestern Railw. Co., 7 Jur. N. S. 1304; s. c. affirmed in Exchequer Chamber, 10 Jur. N. S. 1058; 3 H. & C. 343. See also Robinson v. London & Southwestern Railw. Co., 19 C. B. N. S. 51; s. c. 11 Jur. N. S. 390.

16 Elkins v. Boston & Maine Railw., 19 N. H. R. 337; White v. Bascom, 28 Vt. R. 268. See Wing v. N. Y. & E. Railw., 1 Hilt. 235. Semble, where a contract is made with a railroad company to carry goods to a given point, and while in transitu the goods are reshipped by that company upon another road, the latter company would be liable directly to the owner for a loss of the goods through their neglect. Ill. Cent. Railw. v. Cowles, 32 Ill. R. 116.

17 White v. Bascom, 28 Vt. R. 268; Green v. Clark, 13 Barb. 57; s. c. 2 Kernan, 343.

signee, upon delivery to the carrier, the consignor has ordinarily no property remaining, even where he pays the freight.18

11. In the trial of actions against carriers, where the goods or baggage pass over successive lines of transportation, it has been held insufficient evidence to charge the first carrier to show the delivery of the goods to him, and the failure of their arrival at the place of destination, thus leaving the case without any preponderating evidence to show that they were not delivered to the second carrier.19

12. It has been held, that if the carrier deviate from the regular route, and the goods are lost, it is a conversion.20 This may be sound law, provided there is no just occasion to depart from the ordinary route, and the deviation consequently shows a wanton abuse of the bailment, but otherwise it could only render the carrier responsible for any damage which should accrue.

SECTION XXVI.

Demurrage.

The nature of the claim.

§ 175 a. Demurrage is a claim by way of compensation for the detention of property which is subsequently restored. As where a ship and cargo were detained by an illegal seizure, and discharged without ultimately obtaining a certificate of probable cause, the owner was held entitled to damages by way of demurrage for the detention of the ship, and interest upon the value of the cargo.1 So also, where by the established regulations of a railway demurrage was charged on sacks furnished for transport

18 Green v. Clark, supra. And where a box containg jewelry was delivered to a carrier by a servant under instructions from both plaintiffs, the box being the property of one of them and the jewelry being their joint property, but was addressed to one of them only at a specified place, it was held there was evidence of a joint bailment by both plaintiffs. J. & G. Metcalfe v. L. B. & So. Coast Railw., 31 Law T. 166.

19 Midland Railw. v. Bromley, 33 Eng. L. & Eq. 235.

20 Phillips v. Brigham, 26 Ga. R. 617.

1 The Apollon, 9 Wheaton, 362.

ation of grain, after the expiration of fourteen days; but by another of the regulations of the company none of the company's sacks containing grain were allowed to leave any station after having reached their destination, unless a guaranty is first obtained from the consignee that the sacks shall be returned.