lish the nature of the loss, or how it occurred; but the jury are to decide in reference to all the circumstances, and are at liberty either to believe or disbelieve the bailee's statement, or own account.1

§ 65. In a suit against a carrier for goods lost, the promise of the carrier, after the commencement of the suit, to pay for the goods, if the plaintiff would swear to a list of them, was held an admission of the carrier's liability; and an affidavit of the plaintiff, made in pursuance of such promise, is admissible in evidence to the amount of his demand.2

§ 66. Upon general principles it would seem, that warehousemen, wharfingers, and private carriers for hire, ought to have a specific lien on the thing for their labor and services, like artisans; but it is a matter upon which, it is said, the authorities present no rules for a guide. Warehousemen and wharfingers have sometimes in England a lien by custom; and it has been held in Pennsylvania, that warehouse

1 Doorman v. Jenkins, 2 Adol. & Ell. R. 256; Tompkins v. Saltmarsh, 14 S. & Rawle (Penn.) R. 275; and see ante § 40.

2 Hurd v. Pendrigh, 2 Hill (N. Y.) R. 502; and see Brooks v. Ball, 18 Johns. (N. Y.) R. 337.

3 Story on Bailm. § 453 a, (edit. of 1846.) In respect to a specific lien, it has been laid down as a general rule, that where a bailee spends labor and skill in the improvement of the chattel bailed, he has a lien on it. Bevan v. Waters, 1 Mood. & Malk. R. 235. But it has been added, that his lien is confined to cases where additional value has been conferred by him on the chattel, either directly, by the exercise of personal labor or skill, or indirectly, by the intervention of any instrument over which he has control. Scarfe v. Morgan, 4 M. & Welsb. R. 270; Jackson v. Cummings, 5 Ib. 342. Upon this latter ground, it has been held in England, that an agister of cattle has no lien on the cattle for the pasturage consumed. This doctrine (Story on Bailm. ub. sup.) has as yet not been recognized in this country; and certainly it is not without its difficulties. In its application to livery stable keepers, it may be admitted, because there would seem to be an implied contract to deliver the animal at the mere pleasure of the owner.

4 Rex v. Humphrey, 1 M'Clel. & Young, R. 194; Lockhart v. Cooper,

men have a specific lien, although it cannot be said, that by care and skill, they have, like artisans, improved the thing bailed.1 Chief Justice Gibson, who delivered the opinion of the Court in this case, held, that, on the ground of principle, it was not easy to discover why the warehouseman should not have the same lien for the price of future delivery as that of a carrier (common carrier) has. The one delivers at a different time, the other at a different place; the one after custody in a warehouse, the other in a vehicle; and that was all the difference. It was true, that the measure of a common carrier's responsibility was greater; but that, though a consideration to influence the quantum of his compensation, was not a consideration to increase the number of his securities for it. The learned Judge, in short, understood the law to be, that a warehouseman (and a private carrier stands on the same footing) stands on a footing with a common carrier, whom in this country he closely resembles. Now, common carriers, in virtue of the obligation they are under, by the "custom of the realm" to carry for a reasonable

1 Scott, R. 481. Where no lien exists at Common Law, it can only arise by contract with the particular party, either express or implied; it may be implied either from previous dealings between the same parties upon the footing of such a lien, or from a well and long established usage of trade so general, as that the jury must reasonably presume, that the parties knew of, and adopted it, in their dealing. Rushforth v. Hadfield, 7 East, R. 224. There is a well known distinction between a commercial lien, which is the creature of usage, and a Common Law lien, which is the creature of policy. The first gives a right to retain for a balance of accounts; the second, for services performed in relation to the particular property. Commercial or general liens, which have not been fastened upon the law merchant by inveterate usage, are discountenanced by the Courts as encroachments on the Common Law. Per Gibson, C. J., in delivering the opinion of the Court in Steinman v. Wilkins, 7 Watts & S. (Penn.) R. 466. And see, as to the general principles of the law of lien, Chase v. Wetmore, 5 M. & Sel. R. 180; Jacobs v. Latour, 5 Bing. R. 132; Kirkham v. Shawcross, 6 T. R. 17; Bevan v. Waters, Mood. & Malk. R. 235; Jackson v. Cummings, 5 M. & Welsb. R. 342.

1 Steinman v. Wilkins, 7 Watts & S. (Penn.) R. 466.

reward, have a lien for the carriage price of the particular goods; for, as the law imposes that burden, it gives them the power of retaining for their indemnity. But it is held, in Pennsylvania, that the Common Law rule, that common carriers are obliged to receive goods for carriage, at the current price, cannot properly be applied.2

1 As will be shown in a subsequent chapter.

2 Gordon v. Hutchinson, 1 Watts & S. (Penn.) R. 285; and Steinman v. Wilkins, ub. sup. For a more full consideration of the doctrine of lien as applied to carriers, see post §

CHAPTER IV.

WHO ARE COMMON CARRIERS.

1

§ 67. COMMON carriers are the second description of persons who have been mentioned as carrying for hire, and whose contract, in that capacity, belongs to the class of bailments denominated Locatio operis, and is styled Locatio operis mercium vehendarum.2 The trust created by this contract, being both for the benefit of the bailor and the bailee, the latter, if only a private carrier, is bound only to ordinary diligence, as appears by the preceding chapter. But a common carrier differs from a private carrier in two important respects; 1. In respect of duty, he being obliged, by law, to undertake the charge of transportation, which no other person, without a special agreement, is. It is not even necessary to charge him as carrier, that a specific sum should be agreed upon for carriage, although he is entitled to reasonable compensation. 2. In respect of risk. A common carrier is regarded by the law as an insurer of the property intrusted to him; or, in other words, he is legally responsible for acts against which he could not provide, from whatever cause arising, the acts of God and the public enemy only excepted. The loss of, or damage done to, property in his possession to be carried, is of itself sufficient proof of negli gence, the maxim being, that every thing is negligence which the law does not excuse; so that in all cases, but those just mentioned as excepted, his faultlessness is no discharge.3 This peculiar duty and this extraordinary responsibility, imposed by the force of the general law, upon a common

15.

1 Ante, § 1.

2 See the different divisions and subdivisions of bailments, ante, § 13, 14, 3 See Coggs v. Bernard, Appx.

carrier, are to be extensively considered in subsequent chapters; but it is important to inquire beforehand when persons become common carriers, inasmuch as it would be unjust to impose upon an individual the duty and the responsibility just mentioned, until he has so conducted himself, and so held himself out, as to have fairly assumed them.1 Therefore, it is proposed, in the present chapter, to consider, first, who are common carriers, and secondly, whether the duties. and obligations which persons have incurred by voluntarily becoming such, extend alike to every description of thing.

§ 68. FIRST; The general law of bailments, as has before been mentioned, was so unsettled from the reign of Elizabeth to the reign of Anne, as to have been in that interval the subject of surprising diversity of opinion and inconsist ency of argument. But the rule of the above-mentioned extraordinary responsibility of a common carrier seems to have been first established in the commercial reign of the former, upon the principles of policy and convenience, or to favor and encourage commerce by guarding against the carrier's collusion and combination with thieves and robbers.3 Lord Chief Justice Holt, in the case of Coggs v. Bernard,4 which was decided in the second year of the reign of Anne, in enumerating and expounding the different sorts of bailments, mentions the one of the carriage of goods for hire as

a delivery to carry for a reward to be paid to the bailee," which, he says, "is either a delivery to one that exercises a public employment, or a delivery to a private person." Therefore, according to Lord Holt, to bring a person within the description of a common carrier, he must exercise the business of carrying as a "public employment," or, as it has been said, "he must undertake to carry goods for persons

1 As is said by the Court in Boyce v. Anderson, 2 Peters (U. S.) R. 150. 2 Ante, § 3.

3 Jones on Bailm. 103; Story on Bailm. § 489, 490.

4 Coggs v. Bernard, Appx.