circuit it appeared that the hemp in question was part of an entire lot of ninety-nine tons intrusted to the defendants as warehousemen; that certain parcels of it had been delivered from time to time on plaintiffs' order. The defendants having notified the plaintiffs that ten tons had been purloined by their store-keeper, the plaintiffs demanded the balance remaining on hand and tendered the amount of storage for such balance, but the defendants refused to deliver it without payment of the storage on the whole ninety-nine tons, when the plaintiffs replevied such balance. The defendants offered evidence that the said ten tons had been purloined by their store-keeper and sold to a solvent firm, and that they immediately notified the plaintiffs and urged them to replevy the same from the purchasers, which they declined to do, having brought trover; that they had accounted for the rest of the hemp; that their storage for the whole was unpaid, and that by the usage of merchants in New York they had a lien on the balance in their hands for the whole storage. The evidence was rejected as to the usage, as being contrary to law, and also the other evidence, unless the defendants would prove that the ten tons were taken with the plaintiffs' knowledge or assent, or that the person taking the same was not defendants' partner or servant. Verdict for the plaintiffs, and motion for a new trial.

J. L. Wendell, for the defendants, cited 2 Kent Com, 441; 4 T. R. 581; Peake N. P. 114; 4 Esp. N. P. 262; 1 Id. 315; 7 Cow. 497, to show that the defendants were not liable for the loss, unless want of ordinary care was proved. As to the defendants' lien, he cited 2 Kent Com. 495, 497, 501; 4 Burr. 2221; 3 Bos. & Pul. 494; Id. 489; 6 T. R. 262; Amb. 252.

H. Bleecker, for the plaintiffs, claimed that the defendants were liable for the loss, and therefore were not entitled to compensation for storage: 1 Anth. N. P. 56; 6 Johns. 171; 8 Id. 213; Bull. N. P. 73; Molloy, 24; 1 Ld. Raym. 650; Cai. Lex Merc. 103, 157, 158, 178.

By Court, SUTHERLAND, J. It appears to be well settled that a warehouseman, or depositary of goods for hire, is responsible only for ordinary care, and is not liable for loss arising from accident when he is not in default: 2 Kent Com. 441; 4 T. R. 481; Peake N. P. 114; 4 Esp. N. P. 262; and in Finucane v. Small, 1 Id. 315, it was held that if goods be bailed to be kept for hire, if the compensation be for house room, and not a reward for care and diligence, the bailee is bound only to take the

same care of the goods as of his own, and if they be stolen or embezzled by his servant without gross negligence on his part, he is not liable, and the onus of showing negligence seems to be upon the plaintiff, unless there is a total default in delivering or accounting for the goods: 7 Cow. 500, note a, and cases there cited: 3 Taunt. 264; 5 Barn. & Cress. 322; 1 H. Bl. 298; Jones on Bailm. 106, n. 40; 2 Salk. 655; 1 T. R. 33. The defendants' claim for storage, therefore, is not prejudiced by the fact that a portion of the goods had been purloined or embezzled by the storekeeper or servant.

The defendants had a lien on the whole and every part of the hemp for their storage of the whole; it was but one parcel; the whole was deposited with them at the same time; it was but one transaction. It is admitted that the defendants might have refused to deliver any portion of the hemp until their storage for that particular portion was paid; but having parted with all but six and a half tons, it is contended that they have no right to retain that for their charges in relation to the other portions. This can not be; it would be found most inconvenient in practice. Restricting the lien to services rendered in relation to the whole quantity deposited at the same time, it becomes a just and reasonable rule, giving effect undoubtedly to the actual intentions and understanding of the parties; and promoting the convenience of trade and business: 2 Kent Com. 495, 496.

New trial granted.

LIABILITY OF WAREHOUSEMEN-BOUND ONLY TO ORDINARY CARE.-It is well settled that warehousemen are not, like common carriers, insurers of goods committed to their charge, and liable for all losses not occasioned “by the act of God, or by the king's enemies," but are ordinary bailees for hire, and, as such, bound only to common care and diligence, and liable only for want of such diligence and care: Jones on Bailments, 97; Story on Bailments, sec. 444; Edwards on Bailments, 284; Angell on Carriers, sec. 45; Hutchinson on Carriers, sec. 62; Cailiff v. Danvers, Peake N. P. 155; Hatchett v. Gibson, 13 Ala. 587; Myers v. Walker, 31 Ill. 353; Buckingham v. Fisher, 70 Id. 121; McCullom v. Porter, 17 La. Ann. 89; Cowles v. Pointer, 26 Miss. 253; Ducker v. Barnett, 5 Mo. 97; Holtzclaw v. Duff, 27 Id. 392; Knapp v. Curtis, 9 Wend. 60; Foote v. Storrs, 2 Barb. 328; Bogert v. Haight, 20 Id. 251; Titsworth v. Winnegar, 51 Id. 148; Goldin v. Romer, N. Y. Sup. Ct., May, 1880, 10 Rep. 783; Taylor v. Secrist, 2 Disney (Ohio), 299; Rodgers v. Stophel, 32 Pa. St. 111; Blin v. Mayo, 10 Vt. 56; Dimmick v. Milwaukee etc. R. Co., 18 Wis. 471.

WHO LIABLE AS WAREHOUSEMEN.-It may be stated as a general principle that one who, for hire, receives goods for storage, and whose duty is that of custody rather than carriage, is liable for such goods as a warehouseman, whatever may be his designation. The term warehouseman, therefore, in a wide

AM. DEC. VOL. XXIV-10

sense, often includes many classes of persons other than those who are commonly recognized and spoken of as pursuing that calling. have been held to be liable as warehousemen, are:

Among those who

1. FORWARDING MERCHANTS.—Says Mr. Justice Story: "Forwarding merchants are a class of persons well known in America, and usually combine in their business the double business of warehousemen and agents for a compensation, to ship and forward goods to their destination. Their liability is

like that of warehousemen and common agents, and is governed by the general rule; and, of course, they are responsible for ordinary care and skill and diligence:" Story on Bailments, sec. 444. That such persons are bound only to the same degree of care and diligence as ordinary warehousemen, unless there is an express or implied undertaking on their part for the transportation, as well as for the storage and forwarding of the goods intrusted to them, is clear both upon principle and authority: Roberts v. Turner, 12 Johns. 232; Plott v. Hibbard, 7 Cow. 497; Stannard v. Prince, 64 N. Y. 300; Holtzclaw v. Duff, 27 Mo. 392. But where the contract is either expressly or impliedly for the transportation of the goods, the bailee's liability is that of a common carrier, though he is not, in fact, interested in the vessel in which the goods are carried: Teall v. Sears, 9 Barb. 317. Thus, where a warehouseman at Buffalo, who was also a carrier on the Erie canal, and was accustomed to receive freight from the West, and forward it to the East by the first boat, whether his own or another's, received certain goods addressed to his care, marked "to go from Buffalo to East Albany, at thirty cents per hundred pounds,” it was held that the presumption was, from these facts alone, that he received them as a carrier, and, therefore, that he was liable for their loss where they were burned in his warehouse, without his fault, while awaiting shipment: Ladue v. Griffith, 25 N. Y. 364. The ground of this decision was, that the storage in the defendant's warehouse was merely accessory to the carriage under the doctrine of Blossom v. Griffin, 13 N. Y. 569, 572.

2. WHARFINGERS.-Lord Mansfield, in Ross v. Johnson, 5 Burr. 2825, remarked that there was no distinction between a wharfinger and common carrier, because both "receive the goods upon a contract." The question under consideration in that case, however, was not as to the liability of wharfingers, but as to whether case or trover was the proper remedy, where goods in the possession of a wharfinger were lost or stolen. In Maving v. Todd, 1 Stark. 72; S. C., 4 Camp. 225, it was held that a wharfinger undertaking to carry goods from his wharf to a vessel in his own lighter is liable as a coinmon carrier. But as Mr. Justice Story very clearly shows, the case of a whartinger is not at all distinguishable from that of a warehouseman, with respect to the degree of negligence for which he is liable: Story on Bailments, secs. 451, 452. That there is no distinction between them is held in Cox v. O'Riley, 4 Ind. 368; Foote v. Storrs, 2 Barb. 328; Blin v. Mayo, 10 Vt. 56; Rogers v. Stophel, 32 Pa. St. 111.

3. COMMON CARRIERS BEFORE CARRIAGE BEGUN OR WHEN TERMINATED.— Where goods are received by a common carrier to be forwarded over his line, but are not to be forwarded until further instructions are received from the shipper, or if anything remains to be done by him before they are shipped, the carrier is liable for them only as a warehouseman: Hutchinson on Carriers, sec. 63; Barron v. Eldredge, 100 Mass. 455; Michigan etc. R. R. Co. v. Shurt, 7 Mich. 515; O'Neil v. New York etc. R. R. Co., 60 N. Y. 138; Rogers v. Wheeler, 52 Id. 262. But where the goods have been deposited with him for carriage, nothing remaining to be done by the shipper, the carrier is liable as such, and not as a warehouseman: Forward v. Pittard, 1 T. R. 27. So though

the goods have not yet been placed on the cars or other vehicles of transportation: Fitchburg etc. R. R. Co. v. Ilanna, 6 Gray, 539; Wade v. Wheeler, 3 Lans. 201. On the other hand, where the carrier's duty with respect to the transportation of the goods is ended, and they are deposited in his warehouse to await the convenience of the consignee or owner, the liability of such carrier is merely that of a warehouseman. If the carrier has done all that is required of him to make delivery of the goods, he ought not to be chargeable thereafter as an insurer of their safety: Hutchinson on Carriers, sec. 356. His remaining duty is that of custody, and he is liable only with respect to that duty. Some nice distinctions are drawn in the cases as to when the carrier's duty as such terminates, but a discussion of them is not pertinent to the object of this note. Certainly if the goods have been tendered to the consignee and refused, the carrier is thereafter liable only as a warehouseman: Hudson v. Baxendale, 2 Hurlst. & N. 575; Kremer v. Southern Express Co., 6 Cold. 356; Williams v. Holland, 22 How. Pr. 137. So where, after diligent inquiry, the consignee can not be found: Fisk v. Newton, 1 Denio, 45. So where the goods are delivered and are sent back to the carrier's warehouse to await the owner's orders: Cairns v. Robins, 8 Mee. & W. 258. In some cases it is said, generally, that if the goods have been removed from the cars, at the end of the route, and have been deposited in the carrier's warehouse, his liability for them thereafter is only that of a warehouseman: Chicago etc. R. R. Co. v. Bensley, 69 Ill. 630; Sessions v. Western R. R. Co., 16 Gray, 132; Collins v. Burns, 63 N. Y. 1. So where the goods were deposited on a pier at the end of the route: Lamb v. Camden etc. R. R. Co., 46 N. Y. 271; S. C., 7 Am. Rep. 327. So where the goods were deposited on the levee, in front of a steamboat landing, the carrier having no warehouse at that point: Holtzclaw v. Duf, 27 Mo. 392. So where the baggage of a passenger is deposited in the carrier's baggage room, at the end of the journey, until called for by the owner: Thompson on Carriers of Passengers, 519; Burnell v. New York etc. R. R. Co., 45 N. Y. 184; S. C., 6 Am. Rep. 61; Fairfax v. New York etc. R. R. Co., 43 N. Y. Sup. Ct. 18; S. C., in court of appeals, 67 N. Y. 11; Pike v. Chicago etc. R. R. Co., 40 Wis. 583; Van Toll v. South Eastern R. Co., 12 Com. B. (N. S.) 75; S. C., 31 L. J., C. P. 241; 8 Jur. (N. S.) 1213; 10 W. R. 578; 6 L. T. (N. S.) 244; Harris Great Western R. Co., 1 Q. B. Div. 515; S. C., 17 Eng. Rep. (Moak) 156.

Some of the decisions hold that the liability of the common carrier does not, in such a case, become that of a warehouseman, until the goods have been unladen and made ready for delivery, and the owner has had a reasonable opportunity to remove them: Alabama etc. R. R. Co. v. Kidd, 35 Ala. 209; Richards v. Michigan etc. R. R. Co., 20 Ill. 404; Thomus v. Boston etc. R. R. Co., 10 Metc. 472; Michigan etc. R. R. Co. v. Ward, 2 Mich. 538; Smith v. Nashua etc. R. R. Co., 27 N. H. 86; Moses v. Boston etc. R. R. Co., 32 Id. 523; Ouimit v. Henshaw, 35 Vt. 605; Blumenthal v. Brainerd, 38 Id. 402. In other cases it has been determined that if the goods were unladen and placed in the carrier's freight-house, ready for delivery, the carrier would be liable only as a warehouseman, even though the consignee or owner had no opportunity to remove the goods: Norway Plains Co. v. Boston etc. R. R. Co., 1 Gray, 263; or had not been notified of their arrival, unless they had not arrived "on time:" Francis v. Dubuque etc. R. R. Co., 25 Iowa, 60; Cincinnati etc. R. R. Co. v. McCool, 26 Ind. 140. So where cattle were placed by the carrier in pens at the terminal station, the owner having notice, but having no opportunity to remove them until next day, owing to a police regulation,

and two of them were killed during the night, it was held that the carrier's liability was only that of a warehouseman: Shepherd v. Bristol etc. R. Co., L R., 3 Exch. 189. Certainly, if the goods have been unladen and placed ready for delivery, and the owner has been notified and has had an opportunity to take them away, there can be no question that the carrier's liability thereafter is only that of warehouseman: Mitchell v. Lancashire etc. R. Co., L. R., 10 Q. B. 256; S. C., 44 L. J., Q. B. 107; 33 L. T. 61; 23 W. R. 853; 12 Eng. Rep. (Moak), 288; Goold v. Chapin, 10 Barb. 616. Other cases affirming the general principle that where the goods have been unladen and deposited at the end of the route, the carrier is liable only as a warehouseman, are Jackson v. Sacramento etc. R. R. Co., 23 Cal. 269; Neal v. Railroad Co., 8 Jones L. (N. C.) 482; Weed v. Barney, 45 N. Y. 344; S. C., 6 Am. Rep. 96; Fenner v. Railroad, 44 N. H. 505. In Sessions v. Western R. R. Co., 16 Gray, 132, it is said to be a question for the jury whether or not a carrier has fully performed his duty as to the carriage of goods so as to be liable thereafter only as a warehouseman. So in Blumenthal v. Brainerd, 38 Vt. 402.

Where a carrier is required to forward goods over a connecting line it seems to have been held in some cases that his liability as a common carrier continues, notwithstanding a deposit of the goods in his warehouse at the end of his route to await further transportation, and that he can discharge himself of that liability only by an actual delivery to the connecting line: Railroad Company v. Manufacturing Co., 16 Wall. 318; Ouimit v. Henshaw, 35 Vt. 605. But his liability as a common carrier is at an end when he has placed the goods on board a boat connecting with his line for further carriage: Ackley v. Kellogg, 8 Cow. 223. But in Garside v. Trent etc. Co., 4 T. R. 581, it was held that where goods were deposited by a carrier in a warehouse at the end of his line awaiting transportation over a connecting line, and were in the mean time destroyed by fire, the carrier's liability was that of a warehouseman. So in Baltimore etc. R. R. Co, v. Schumacher, 29 Md. 168.

So long as the duty of carriage is unperformed it is obvious that the carrier's liability does not become that of a warehouseman: Hutchinson on Carriers, sec. 110. Where by the bill of lading it appeared that the defendants undertook to deliver certain goods "at the port of London to the plaintiff or his assigns," and the plaintiff having sued on the contract, the defendants pleaded that on the arrival of the goods in the port of London, they deposited them on a certain wharf where they were destroyed by an accidental fire before the defendants had a reasonable time to deliver them, the plea was adjudged bad, because the undertaking to deliver the goods had not been performed: Gatliffe v. Bourne, 4 Bing. N. C. 314; 3 Man. & G. 643; S. C., in the house of lords, 11 Cl. & Fin. 45.

It is further to be noted, in this connection, that a notice or stipulation by a carrier in the bill of lading, that if the goods are not removed by the consignee on arrival at the end of the route they will be deposited in the carrier's warehouse at the expense of the consignee, and at his risk of fire, loss, or injury," will not excuse such carrier from his liability as a warehouseman for a loss occasioned by his negligence in delivering the goods to a wrong person, or otherwise: Collins v. Burns, 63 N. Y. 1. To the same effect, substantially, are: Mitchell v. Lancashire etc. R. Co., L. R., 10 Q. B. 256; S. C., 44 L. J., Q. B. 107; 33 L. T. 61; 23 W. R. 853; 12 Eng. Rep. (Moak), 288; Holtzclaw v. Duff, 27 Mo. 392.

4. KEEPERS OF BONDED WAREHOUSES.--The keeper of a private bonded warehouse is bound to the same degree of care, and liable for the same de gree of negligence, with respect to goods intrusted to him, as an ordinary