ceives no fee or reward from them; that his contract is with the government of the United States, for the performance of acts in the execution of a public function; he is remunerated by the government; and the duty he takes upon himself by the contract, he is sworn to perform. So far then, as the transmission of the mail is concerned, a mail contractor is a public agent, and, as such, only responsible.1

$122. There is another kind of property, for the carriage. of which persons do not become liable as common carriers. In respect to the carriage of slaves, the question has more than once arisen, how far the carrier of them incurs the Common Law responsibility. In Boyce v. Anderson, in the Supreme Court of the United States, 2 it was held, that the law regulating the responsibility of common carriers, does not apply to the case of carrying intelligent beings, such as negroes. The carrier has not, and cannot have, the same absolute control over them, that he has over inanimate matter; and in the nature of things, and in their character, such human beings are passengers. Therefore the responsibility of the carrier should be measured by the law which is applicable to passengers, rather than that which is applicable to the carriage of common goods. In South Carolina, it has also been held, that there is a manifest distinction between the liability of the carrier with respect to the transportation of a slave and a bale of goods; and that the strictness of the Common Law rule of liability, is not, from the nature of the subject, applicable to the carriage of the former.3 The Supreme Court of Alabama have held, on the authority of the above case of Boyce v. Anderson, that the strict rule of the Common Law, in respect to the respon

1 Conwell v. Voorhees, 13 Ohio R. 523.

2 Boyce v. Anderson, 2 Peters (U.S.) R. 150; and see Stokes v. Saltonstall, 13 Ib. 181.

3 Clark v. McDonald, 4 M'Cord (S. C.) R. 223.

sibility of common carriers, does not apply to the conveyance of slaves as passengers, by a carrier for hire; and that for such passengers a carrier is liable only for ordinary neglect. But if slaves have paid no hire for their passage, the carrier would only be responsible in the case of gross neglect; in other words, a less degree of negligence makes a carrier liable to a passenger who has, or is bound to pay his hire, than is required to make him responsible to one, from whom he is to receive no reward.1

1 Williams v. Hitchcock, 4 Port. (Ala.) R. 234. The owners of a boat are not liable for the loss of a slave, employed as one of the boat hands, unless the loss was occasioned by the wilful misconduct or culpable negligence of the captain. McDaniel v. Emanuel, 2 Rich. (S. C.) R. 455. Where a slave was hired to work on a railroad, and the slave, with the knowledge of the conductor, went on the cars and was carried beyond the place at which his services were that day required, and in jumping from the cars while in motion, was killed; it was held, that the Company were liable to the owner of the slave for the loss. Duncan v. Railroad Company, 2 Rich. (S. C.) R. 613.

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1

CHAPTER V.

OF THE DUTY OF A COMMON CARRIER TO RECEIVE GOODS, AND of THEIR DELIVERY TO HIM AS THE COMMENCEMENT OF HIS RESPONSIBILITY.

$123. As has been already stated, a common carrier is distinguished from a private carrier, both in respect to the duty which the law imposes upon him, in consequence of the public employment he has voluntarily assumed, to receive goods which are offered for carriage; and in respect to his responsibility for their safety, after they are in his custody.1

$124. In respect to the first mentioned distinction, the law has been lately laid down by the Supreme Court of the United States, that a common carrier "is bound to receive, and carry, all the goods offered for transportation, subject to all the responsibilities incident to his employment; and is liable to an action in case of refusal." 2 But in order to render a carrier liable in an action, for refusing to take charge of goods, there must be tendered him a reasonable compensation. Indeed no person is a common carrier, in the sense of the law, who is not a carrier for hire; and it is the reward which renders him liable; as Lord Coke says, the carrier "hath his hire, and thereby implicitly undertaketh the safe delivery of the goods delivered to him."3 Still, it is not required that the reward to be tendered, should be a

1 See Ante, § 67.

2 New Jersey Steam Navigation Co. v. Merchants Bank, Dec. Term Sup. Court U. States, 1847, Appx.

3 Co. Litt. 89, a.

fixed sum; it being sufficient, if it be in the nature of a quantum meruit to or for the benefit of the bailor;1 yet if the party offering the goods, avers and proves his readiness and willingness to pay the money for the carriage, it will, it seems, be considered as equivalent to a tender.2

1 Rogers v. Head, Cro. Jac. 262. Assumpsit against a common carrier; and upon motion in arrest of judgment, for that he was not charged as a common carrier; and that the promise was not for any certain sum, but only that he would, rationabiliter, content him; non allocatur, “for the consideration is sufficient, because a carrier may demand, and the other is bound to pay, as much as is reasonable." Bastard v. Bastard, 2 Show. R. 81. Action against a carrier for loss of a box; upon motion in arrest of judgment, because no particular sum had been agreed upon for the carriage, but only that a reasonable reward was to be paid, held well enough; for as in such case a carrier may maintain a quantum meruit, he is as much liable as if there is a particular agreement for a sum certain. S. P. admitted in Lovett v. Hobbs, Id. 129. Boulston v. Sanderford, Skin. R. 279; Jackson v. Rogers, 2 Shower, R. 328; Riley v. Horne, 5 Bing. R. 217; Macklin v. Waterhouse, Ib. 212; Hollister v. Nowlen, 19 Wend. (N. Y.) R. 234; Cole v. Goodwin, Ib. 251; Bac. Abr. Carriers, B.; 2 Kent, Comm. 598; Story on Bailm. § 508. Carrier liable to be sued if he refuse to carry goods for the common reward. Hurrill v. Owens, 1 Dev. & Bat. (N. C.) R. 273; Anon. v. Jackson, 1 Hayw. (N. C.) R. 14. "It is exceedingly clear, that no person is a common carrier, in the sense of the law, who is not a carrier for hire; that is, who does not receive, or is not entitled to receive, any recompense for his services. The known definition of a common carrier, in all our books, fully establishes this result. If no hire or recompense is payable ex debito justitiæ, but if something is bestowed as a mere gratuity or voluntary gift, then, although the party may transport either persons or property, he is not in the sense of the law a common carrier; but he is a mere mandatary, or gratuitous bailee; and of course his rights, duties, and liabilities are of a very different nature and character from those of a common carrier. It is not necessary, that the compensation should be a fixed sum, or known as freight; for it will be sufficient if a hire or recompense is to be paid for the service, in the nature of a quantum meruit, to or for the benefit of the Company." Per Story, J., in Citizens Bank v. Nantucket Steamboat Co. 2 Story (Cir. Co.) R. 35.

2 Story on Bailm. § 508; Pickwick v. Grand Junction Railway Co. 9 Dowl. Parl. Cases, 766.

Payment may also sometimes be inferred; as, in a suit against stage-owners for loss of baggage, payment of the fare need not be expressly proved, inasmuch as it may be inferred without violent implication, it being seldom if ever neglected.1

$ 125. Nevertheless, there may be reasonable grounds for a refusal by a carrier to take the goods, and such grounds as will, if supported, be a legal defence to an action for the non-carriage of the goods. If a carrier refuses to take charge of goods because his coach is full, it is a reasonable ground of refusal. In the words of Mr. Justice Best, "he must take what is offered to him, to carry to the place, to which he undertakes to convey goods, if he has room for it in his carriage." So also, if he has no convenient means of carrying the goods offered, with security; or because the goods are of a nature, which will at the time expose them

1 M'Gill v. Rowand, 3 Barr (Penn.) R. 451.

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2 Action against a coach-master, for refusal to carry goods; but evidence being given that the coach was full, wherefore the defendant denied to take charge of the goods; it was agreed to be a good answer; "for if an hostler refuses a guest, his house being full, and yet the party says he will shift, &c.; if he be robbed, the hostler is discharged." Lovett v. Hobbs, 2 Show. R. 127.

3 Riley v. Horne, 5 Bing. R. 217. It is agreed, says Cowen, J., in Cole v. Goodwin, by all the books, that while the carrier enjoys the privileges of a common carrier, it is a duty he cannot escape in any form to receive goods, if he has room to carry them, for a reasonable reward; and the reasonable reward may be set down as the accustomed reward for like services. Cole v. Goodwin, 19 Wend. (N. Y.) R. 261, and Appx.

4 Case against a defendant, a common carrier, for refusing to carry a pack, though offered his hire; and held by the Lord Jeffries, "that the action is maintainable as well as it is against an innkeeper for refusing a guest, being tendered satisfaction for the same. Note, it was alleged, and proved, that he had convenience to carry the same, and the plaintiff had a verdict. Jackson v. Rogers, 2 Shower, R. 327.