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of proof is upon the carrier. He presumptively holds for his employer, and if a third party sets up a claim to the goods, he will admit it at his peril. In a case in which the carrier gave up the goods to the true owner upon his demand, it was said by the court that "the defendants were common carriers and therefore bound to receive the goods for carriage. They could make no inquiry as to the ownership. They have not voluntarily raised the question, it was raised by the demand of the real owner before the defendants had parted with the goods. The law would have protected them against the real owner if they had delivered the goods in pursuance of their employment without notice of his claim. It ought equally to protect them against the pseudo owner from whom they could not refuse to receive the goods, in the present event of the real owner claiming the goods and their being given up to him. The compulsory character of the employment of a carrier furnishes ample ground for so holding; and we do not assent to the altered statement of the law in the later editions of Story on Bailments,33 the earlier editions of that valuable work having laid it down in accordance with our view.'34 The

33. §§ 266 and 582.

34. Sheridan v. The New Quay Co., 4 Com. B. 93 Eng. C. L. R. 618.

merely asserted by the carrier of his own mere motion. Formerly it seems to have been thought that if the adverse title was asserted

Section 582, here alluded to, is by the superior claimant, and the as follows:

"Another excuse

which may be asserted, under certain circumstances, is when the goods are demanded or taken from the possession of the carrier by some person having a superior title to the property. In general the carrier is not permitted to dispute the title of the person who delivers the goods to him, or to set up an adverse title to defeat his right of action growing out of his contract. And this is emphatically the rule when that adverse claim is not asserted by the superior claimant himself, but is

carrier had due notice of it and was forbidden to deliver it to the bailor, he might protect himself from responsibility and set up such title against the bailor. But this doctrine, although perhaps maintainable in some cases, under special circumstances, is now deemed to be generally untenable; and, therefore, the carrier may be placed in a position in which he cannot safely deliver the goods to either party. For where the adverse title is made known to the carrier, if he is forbidden to deliver the goods to any other per

law as thus stated is abundantly sustained by the cases.35 Sec. 750. (§ 405.) Carrier cannot of his own motion set up adverse title. But neither the carrier nor any other bailee can, of his own mere motion, set up the adverse claim of another to the goods as an excuse for withholding them from his bailor. The general rule is that the agent must account to his principal, and cannot set up the jus tertii, nor in any way dispute his title, and it applies as well to the common carrier as to the ordinary bailee. The adverse claim must be asserted by the claimant himself or by his authority. No matter how tortious or fraudulent may have been the means by which the bailor acquired possession of the property, nor how entirely destitute of all right to it as against the true owner, the bailee cannot legally withhold it from him unless the owner has set

son, he acts at his peril; and if the adverse title is well founded and he resists it, he is liable to an action for the recovery of the goods by the person setting up such adverse title."

The words inserted in the third edition of the book during the life-time of the distinguished author, and retained in all the subsequent editions, are those in italics. See American notes to Armory v. Delamirie, 1 Smith's Ld. Cases, 481, where the decision is briefly commented on and approved. See, also, Wells v. Express Co., 55 Wis. 29.

35. The Idaho, 93 U. S. 575, 11 Blatch. 218; Rosenfield v. The Express Co., 1 Woods, 131; Western Trans. Co. v. Barber, 56 N. Y. 544; Lowremore v. Berry, 19 Ala. 130; Harker v. Dement, 9 Gill, 7; Floyd v. Bovard, 6 Watts & S. 75; King v. Richards, 6 Whart. 418; Bates v. Stanton, 1 Duer, 79; Hardman v. Willcock, 9 Bing. 382; Biddle v. Bond, 6 Best & S. 225; Cheesman v. Exall, 6 Exch. 341;

Dixon v. Yates, 5 B. & Ad. 340;
Wells v. Express Co., 55 Wis. 23;
Rogers v. Weir, 34 N. Y. 463;
American Express Co. v. Green-
halgh, 80 I. 68; Young v. Rail-
way Co., 80 Ala. 100; Wolfe v.
Railway Co., 97 Mo. 473; Railway
Co. v. Moline Plow Co., 13 Ind.
App. 225, 41 N. E. Rep. 480, citing
Hutch. on Carr.; Railway Co. v.
Jordan Stock Food Co., 67 Kan.
86, 72 Pac. Rep. 533; Thomas v.
Express Co., 73 Minn. 185, 75 N.
W. Rep. 1120, citing Hutch. on
Carr.; Merz v. Railway Co., 86
Minn. 33, 90 N. W. Rep. 7; Shel-
lenberg v. Railroad Co., 45 Neb.
487, 63 N. W. Rep. 859, 50 Am.
St. Rep. 561, citing Hutch. on
Carr.

As to the right of a carrier to
deliver to a mortgagee after the
conditions of a chattel mortgage
are broken see Johnston v. Rail-
road,
Neb. -, 97 N. W.
Rep. 479, citing Hutch. on Carr.;
Kohn v. Railroad Co., 37 S. Car.
1, 16 S. E. Rep. 376, 24 L. R. A.
100, 34 Am. St. Rep. 726.

up his claim and the bailee has yielded to it; and if the carrier or other bailee, whilst still holding possession of the property, would defend against the claim of his bailor by setting up the paramount title of another, he must at least show that it is done by his authority and on his behalf. Otherwise the bailee might avail himself of the title of a third person which might never be asserted by such person, and thus be enabled to keep the property for himself without a shadow of title, when by his contract he had undertaken to return it to the bailor or to deliver it according to his directions.36 But so soon as he has restored it to the person to whom it belongs, or has agreed, upon his demand, to hold it for him, the estoppel ceases, because the original bailment has come to an end by that which is equivalent to an eviction by title paramount.37

Sec. 751. (§ 406.) Yet claim upon him by adverse claimant is sufficient. But while it is not enough that the carrier has become aware of the title or claim of a person other than the bailor or consignee, to entitle him to set up such claim or title against the demand of the latter, yet if he has been notified by the claimant of his title, and has been requested not to deliver the goods according to his undertaking, he would, no doubt, be permitted, in an action against him by the bailor or consignee, to prove that such claimant was entitled to the goods and had forbidden their delivery to the bailor or according to his directions; because, although he may not have actually yielded the possession to the claimant nor have acknowledged his title, the defense would be considered as made by his request and in his behalf; and the very fact of making use of the adverse claim, under such circumstances, to defeat a recovery by the bailor, would be construed as an implied yielding to it.38

36. See Wells v. Express Co., 55 Wis. 23; Valentine v. Railroad Co., 92 N. Y. Supp. 645.

37. Story on Bail. $$ 450, 582; Story on Agency, § 217; Edwards on Bail. 305; Western Trans. Co. v. Barber, 56 N. Y. 544; Laclouch 1. Towle, 3 Esp. 114; Kieran v.

Sandars, 6 Ad. & El. 515; Gosling
v. Birnie, 7 Bing. 339; Holl v.
Griffin, 10 id. 246; Great Western
E'y v. Crouch, 3 H. & N. 183;
Burroughs v Bayne, 5 id. 296;
The Idaho, supra.

38. Wells v. Express Co., 55 Wis. 23; Bates v. Stanton, 1 Duer,

Sec. 752. (§ 407.) Course to be pursued by carrier-Interpleader-Indemnity. In such cases, however, if it should turn out that such claimant has not the paramount title as against the bailor, the withholding the goods by the carrier from the latter will be treated as a conversion by him. And so, when a demand is made upon him by the adverse claimant, if the carrier should refuse to surrender the goods to him, he will be equally guilty of a conversion, if the title of such claimantshould prove to be the better, and he, as the true owner, was really entitled to them.39 Where, therefore, the title to the property is disputed, and it becomes difficult or impossible for the carrier to determine who is entitled to them, he may be placed in a perilous position; for, no matter to which he gives up the goods, whether to the bailor, or in pursuance of his directions, or to the adverse claimant, he will be in danger of being held to account for them by the other, as for a conversion, if he can show the better title. Under such circumstances, it sometimes becomes advisable for the carrier, instead of taking it upon himself to determine between the conflicting claims, to bring the parties before the proper legal tribunal by a bill of interpleader, in order that the parties may litigate the question of title inter sese, and have it there determined. He may, however, generally avoid the expense and delay of such a proceeding by delivering the property to the party who seems best entitled to it, upon being indemnified by him against loss in case it should turn out otherwise.

79; Sheridan v. The New Quay Co., supra; 1 Smith's Ld. Cas. *481, notes to Armory v. Delamirie; Shellenberg v. Railroad Co., 45 Neb. 487, 63 N. W. Rep. 859, 50 Am. St. Rep. 561, citing Hutch, on Carr.

39. Lester v. Railroad Co., 73 Hun, 398, 26 N. Y. Supp. 206, citing Hutch. on Carr. But in this case there was no conversion be cause at the time of delivery by the carrier to the consignee there

was still in force between the consignor and consignee a contract by which the consignee was entitled to the possession of the goods, although title was reserved in the consignor, and the contract was recognized as still being in force after delivery by the carrier, by the consignor accepting payments from the consignee on the goods according to the terms of the agreement.

Sec. 753. (§ 408.) Same subject-Entitled to reasonable time to investigate title. It should be observed, however, that the carrier, when a demand is made upon him for the goods by another than his bailor or his consignee, may withhold the goods for a sufficient time to satisfy his honest doubts, without making himself liable for a conversion of them. But in such cases he should put his reason for not making an immediate delivery upon that ground, and it must appear that he acted in good faith for that purpose. And if he has delivered the goods to the consignee before he is made aware that the bailor was not the rightful owner, or before any adverse claim is set up to them, he cannot, of course, be held liable to another, though the true and rightful owner. Any such liability would be an intolerable hardship upon the carrier.41

Sec. 754. ($408a.) Carrier not liable for not permitting goods to be seized on process not against owner. So, clearly, the carrier cannot be held liable to an action for refusing to permit goods to be seized on legal process not directed against the owner.42

Sec. 755. The duty and liability of the carrier when goods are detained by customs officials. The parties to the contract of carriage must be presumed to have contracted with the common knowledge of the necessity for customs detention and inspection, and the burden is on the shipper to make provision for the passage of his property beyond the borders of the foreign territory, if non-dutiable. The carrier is wholly powerless to prevent its seizure and detention and he cannot be held liable for its destruction, either in transit or at the place of destination, while in the possession of customs house officials, by a fire which he did not occasion, and which he could not,

40. Solomons v. Dawes, 1 Esp. 83; Green v. Dunn, 3 Camp. 215; Dunlap v. Hunting, 2 Denio, 643; Holbrook v. Wight, 24 Wend. 169; Rogers v. Weir, 34 N. Y. 463; Merz v. Railway Co., 86 Minn. 33, 90 N. W. Rep. 7.

41. Sheridan v. The New Quay Co., supra; Shellenberg v. Railroad Co., 45 Neb. 487, 63 N. W. Rep. 859, 50 Am. St. Rep. 561.

42. Simpson v. Dufour, 126 Ind. 322, 26 N. E. Rep. 69; s. c. 95 Ind. 302.

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