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FITCH v. NEWBERRY.
SUPREME COURT OF MICHIGAN. 1843.

[Reported 1 Douglass (Mich.), 1.) This was an action of replevin for the taking and detention of sixtyfive kegs of nails, one box of goods, and one barrel of apples, tried in the circuit court for the county of Wayne, before Geo. Morell, Presiding Judge, at the November term, 1841. The taking and detention of the property were admitted by the pleadings. The facts in issue were found by a special verdict, which was certified to this court for its opinion upon the questions of law arising therefrom. The facts found, out of which the question decided by this court arises, are the following:

The goods and chattels described in the declaration were the property of the plaintiffs. They contracted with the New York & Michigan Line for the transportation of the nails, to be delivered to Hutchinson, Campbell & Co., Detroit, for $1 per hundred pounds, payable in Michigan funds, and paid the freight in advance to the proprietors of the line at Detroit. The nails were shipped by the agents of the plaintiffs, at Port Kent, on Lake Champlain, July 18, 1838, by the New York & Michigan Line to Detroit, Mich., consigned to the plaintiffs at Marshall, Mich., care of Hutchinson, Campbell & Co., Detroit, and on such shipment the following bill of lading was given, signed by the master of the sloop Lafayette :— . F. 8. G. Marshall, Michigan. Care of

Shipped, in good order and well condiJ. Movius & Co., Ypsilanti, tioned, by Keeseville Mf. Co. on board H. Campbell & Co., Detroit. the sloop called the Lafayette, whereof New York & Michigan Line. C. P. Allen is master for this voyage, Care of

now lying at the port of Port Kent, and

Sixty-five kegs of nails of 100 lbs. each

6,500 lbs. Tare

390 56

6,890 66 At 164 cts. per hund. delivered in Albany, is $11.60 being marked and numbered as in the margin, and are to be delivered in the like good order and well conditioned, at the port of Albany (the danger of the seas only excepted), unto the agents of the New York & Michigan Line, or to their assigns; freight for the said sixty-five kegs being paid to Albany, by Messrs. Eddy & Bascomb, $11.60.

In witness whereof, the master, as purser of the said vessel, hath affirmed to three bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void. Dated at Port Kent, the 18th day of July, 1838.

CHARLES P. ALLEN.

The several kegs of nails were each marked “F. & G. Marshall, Michigan, care of Hutchinson, Campbell & Co., Detroit.” Robert Hunter & Co., at Albany, and Hunter, Palmer & Co., at Buffalo, were partners in the business of transportation and forwarding between Albany, N. Y., and Detroit, Mich., and they, together with the defendants, who were also forwarding and commission merchants at Detroit, were the owners, and each at their respective places of business, agents of the Merchants' Line. Hunter, Palmer & Co. received the nails at Buffalo from one of the canal boats of the Merchants' Line, accompanied by a bill of lading from Robert Hunter & Co. as consignors, and advanced the freight and charges upon them from Troy to Buffalo. They then shipped them to Detroit on board a steamboat belonging to the Merchants' Line, consigning them, by another bill of lading, to the care of the defendants, who received them Aug. 11, 1838, and paid the freight and charges on them from Troy to Detroit, amounting to the sum of $85.63. The box of goods and barrel were shipped at a date subsequent to the shipment of the nails, from Whitesboro', N. Y., by the same line, upon the same terms, to the care of Hutchinson, Cainpbell & Co., marked - Fitch & Gilbert, Marshall, Michigan ; care of Hutchinson, Campbell & Co., Detroit; New York & Michigan Line;" and the freight on them was also paid by the plaintiffs in advance. They were received in the warehouse of the defendants at Detroit, Oct. 26, 1838, and, as appeared by their books, they paid the freight and charges upon them to Detroit, amounting to $3.83. The defendants had no knowl. edge of the contract made by the plaintiffs with the New York & Michigan Line for the transportation of the goods, or of the payment of the freight to said line, until in the fall of 1838, after their receipt by the defendants, when the plaintiffs demanded delivery of the goods, and informed them of such contract and payment. They refused to deliver the goods either to the plaintiffs or at the warehouse of Hutchinson, Campbell & Co. until the freight and charges of transportation thereon, advanced by them, amounting to $89.46 (and exceeding the cost of transportation under the contract between the plaintiffs and the New York & Michigan Line), and also their charges for wharfage and storage of the goods, amounting to $16.53, were paid, claiming a lien upon the goods for such advances and charges. Whereupon the plaintiffs sued out this writ of replevin.

H. II. Emmons, for the plaintiffs. Geo. C. Bates, for the defendants.

RANSOM, J. Upon the facts found in the special verdict, several questions were raised, but the most important, and the only one which we deem it necessary to consider, is, whether the defendants had acquired a lien upon the goods, which they could enforce, even against the owners, the plaintiffs in this case.

On the part of the defendants, it is contended that a common carrier who receives goods for carriage and transports them, may detain them by virtue of his lien, for freight, even against the owner, in case the freight has been earned without fraud or collusion on his part ; that, if goods be stolen, or otherwise tortiously obtained from the legal owner, at New York or elsewhere, and carried by a transportation line from thence to Detroit, without a knowledge of the theft on the part of the carrier, he would be entitled to a lien for freight, even against the owner. This doctrine is sought to be maintained by the defendants' counsel, on several grounds : 1. He insists that a common carrier is bound to receive goods which are offered for transportation, and to carry them; that it is not a matter of choice whether he will receive and carry them or not; that he is liable to prosecution if he refuses. 2. That a common carrier is not only bound to receive and transport goods that are offered, but he is liable for their loss, in all cases, except by the act of God and public enemies ; and the same rule, he insists, applies to warehousemen and forwarders. 3. That the duties and obligations of common carriers and innkeepers, are, in all respects, analogous; and an innkeeper is bound to receive and entertain guests, and to account for a loss of their baggage while under his care. 4. That a common carrier, being bound by law to accept goods offered him for carrying, and being responsible for their safe delivery in all cases, except when prevented by the act of God or public enemies, is entitled to a lien for their freight, against all persons, including even the owner, when the goods were tortiously obtained from him; that he is not bound to inquire into the title of the person who delivers them: and such lien exists, although there be a special agreement for the price of carriage. 5. That the master is not bound (nor his agent for him) to deliver any part of a cargo until the freight and other charges are paid.

But for the plaintiffs it is contended : 1. That liens are only known or admitted in cases where the relation of debtor and creditor exists, so that a suit at law may be maintained for the debt which gives rise to the lien ; that a lien is a mere right to detain goods until some charge against the owner be satisfied. 2. That the defendants obtained possession of the goods without authority from the owners, either express or implied ; that no legal privity exists between the parties, and therefore the relation of debtor and creditor does not exist between the defendants or their principals and the plaintiffs, and no action could be maintained by either against them for the freight, or any part of it. 3. They contend further that, even if the defendants lawfully received the goods from the original carriers of the plaintiffs, the New York & Michigan Line, they did so as their agents and servants, and were bound

ment is incomplete, and therefore no freight is due.

That cornmon carriers are bound to receive goods which are offered by the owners or their agents for transportation, and to carry them for a just compensation, upon the routes which they navigate, or over which they convey goods in the prosecution of their business, is too well settled to require discussion, although this general proposition is subject to some qualifications.

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The several kegs of nails were each marked "F. & G. Marshall, Michigan, care of Hutchinson, Campbell & Co., Detroit.” Robert Hunter & Co., at Albany, and Hunter, Palmer & Co., at Buffalo, were partners in the business of transportation and forwarding between Albany, N. Y., and Detroit, Mich., and they, together with the defendants, who were also forwarding and commission merchants at Detroit, were the owners, and each at their respective places of business, agents of the Merchants' Line. Hunter, Palmer & Co. received the nails at Buffalo from one of the canal boats of the Merchants' Line, accompanied by a bill of lading from Robert Hunter & Co. as consignors, and advanced the freight and charges upon them from Troy to Buffalo. They then shipped them to Detroit on board a steamboat belonging to the Merchants' Line, consigning them, by another bill of lading, to the care of the defendants, who received them Aug. 11, 1838, and paid the freight and charges on them from Troy to Detroit, amounting to the sum of $85.63. The box of goods and barrel were shipped at a date subsequent to the shipment of the nails, from Whitesboro', N. Y., by the same line, upon the same terms, to the care of Hutchinson, Carnpbell & Co., marked - Fitch & Gilbert, Marshall, Michigan ; care of Hutchinson, Campbell & Co., Detroit; New York & Michigan Line;" and the freight on them was also paid by the plaintiffs in advance. They were received in the warehouse of the defendants at Detroit, Oct. 26, 1838, and, as appeared by their books, they paid the freight and charges upon them to Detroit, amounting to $3.83. The defendants had no knowledge of the contract made by the plaintiffs with the New York & Michigan Line for the transportation of the goods, or of the payment of the freight to said line, until in the fall of 1838, after their receipt by the defendants, when the plaintiffs demanded delivery of the goods, and informed them of such contract and payment. They refused to deliver the goods either to the plaintiffs or at the warehouse of Hutchinson, Campbell & Co. until the freight and charges of transportation thereon, advanced by them, amounting to $89.46 (and exceeding the cost of transportation under the contract between the plaintiffs and the New York & Michigan Line), and also their charges for wharfage and storage of the goods, amounting to $16.53, were paid, claiming a lien upon the goods for such advances and charges. Whereupon the plaintiffs sued out this writ of replevin.

H. II. Emmons, for the plaintiffs.
Geo. C. Bates, for the defendants.

Ransom, J. Upon the facts found in the special verdict, several questions were raised, but the most important, and the only one which we deem it necessary to consider, is, whether the defendants had acquired a lien upon the goods, which they could enforce, even against the owners, the plaintiffs in this case.

On the part of the defendants, it is contended that a common carrier who receives goods for carriage and transports them, may detain them by virtue of his lien, for freight, even against the owner, in case the

freight has been earned without fraud or collusion on his part ; that, if goods be stolen, or otherwise tortiously obtained from the legal owner, at New York or elsewhere, and carried by a transportation line from thence to Detroit, without a knowledge of the theft on the part of the carrier, he would be entitled to a lien for freight, even against the owner. This doctrine is sought to be maintained by the defendants' counsel, on several grounds : 1. He insists that a common carrier is bound to receive goods which are offered for transportation, and to carry them; that it is not a matter of choice whether he will receive and carry them or not; that he is liable to prosecution if he refuses. 2. That a common carrier is not only bound to receive and transport goods that are offered, but he is liable for their loss, in all cases, except by the act of God and public enemies ; and the same rule, he insists, applies to warehousemen and forwarders. 3. That the duties and obligations of common carriers and innkeepers, are, in all respects, analogous; and an innkeeper is bound to receive and entertain guests, and to account for a loss of their baggage while under his care. 4. That a common carrier, being bound by law to accept goods offered him for carrying, and being responsible for their safe delivery in all cases, except when prevented by the act of God or public enemies, is entitled to a lien for their freight, against all persons, including even the owner, when the goods were tortiously obtained from him ; that he is not bound to inquire into the title of the person who delivers them: and such lien exists, although there be a special agreement for the price of carriage. 5. That the master is not bound (nor his agent for bim) to deliver any part of a cargo until the freight and other charges are paid.

But for the plaintiffs it is contended : 1. That liens are only known or admitted in cases where the relation of debtor and creditor exists, so that a suit at law may be maintained for the debt which gives rise to the lien ; that a lien is a mere right to detain goods until some charge against the owner be satisfied. 2. That the defendants obtained possession of the goods without authority from the owners, either express or implied ; that no legal privity exists between the parties, and therefore the relation of debtor and creditor does not exist between the defendants or their principals and the plaintiffs, and no action could be maintained by either against them for the freight, or any part of it. 3. They contend further that, even if the defendants lawfully received the goods from the original carriers of the plaintiffs, the New York & Michigan Line, they did so as their agents and servants, and were bound by their agreement with the plaintiffs ; that their contract of affreightment is incomplete, and therefore no freight is due.

That common carriers are bound to receive goods which are offered by the owners or their agents for transportation, and to carry them for a just compensation, upon the routes which they navigate, or over which they convey goods in the prosecution of their business, is too well settled to require discussion, although this general proposition is subject to some qualifications.

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