The second exception was, I think, properly abandoned on the argument; and the opinion of the court below on the last point, to wit, that the cartman was not to be regarded as the general agent of the consignees for receiving goods, merely on the ground of his being often employed by them to cart goods, was undoubtedly correct. Because a merchant usually selects a cartman, and employs him exclusively in carrying goods according to his orders, it by no means follows that such cartman is his general agent for receiving goods without orders.

The defendants in error are therefore entitled to judgment.

This case is followed as authority in Price v. Powell, 3 N. Y. 326; Miller v. Steam Navigation Co., 10 Id. 438; Goold v. Chapin, 20 Id. 263; and McDonald v. Western R. R. Co., 34 Id. 501.

In several sections, in Angell on Carriers, this case is cited as a leading case on the law of common carriers. In section 291, this author says: "The carrier will be excused for his delay in delivery, if the consignee is dead or absent, or has refused to receive the goods, though, in those cases, he is not justified in abandoning the goods, as by leaving them unprotected on a wharf; his duty, on the contrary, being to secure them for the owner;" citing principal case.

In section 300, he says, on the authority of the case: "The doctrine appears to be established in this country, that in the absence of a special contract or of well-established usage, the mere landing of goods from a vessel on a wharf is not such a delivery to the consignee as will discharge the carrier." In section 305, he quotes with approval the language of Platt, J., as to the duty of the carrier to deliver only to the proper person.

The court, in Cope v. Cordova, 1 Rawle, 208, considered the doctrine here laid down in the principal case, on the liability of shipowners as carriers, to be confined to the internal and coasting trade.

DELIVERY BY SHIPPER.-The duty and liability of a shipper in the delivery of goods, are well considered in Redmond v. Liverpool, etc., Co., 46 N. Y. 578; S. C., 7 Am. Rep. 390, where it is held that a common carrier by water is not released from all liability by the deposit of goods upon the wharf at a reasonable hour with due notice to the consignee. If the latter does not appear to claim and receive the goods, it is the duty of the carrier to provide a proper place of storage, or in case of imported goods, subject to duty to see that they are in proper custody. The obligation of a carrier of imported goods, does not require a delivery in contravention of the revenue laws; but where the owner has obtained the requisite permit to remove the goods, the fact of their removal under the supervision of the proper officers does not affect the liability of the carrier. Allen, J., in the opinion relies on the doctrine of the principal case, and says: "The general rule is, and to it there are no recognized exceptions, if the consignee is unable or refuses to receive the goods, the carrier is not at liberty to leave them on the wharf, but it is his duty to take care of them for the owner: Story on Bailments, sec. 445; Ostrander v. Brown, 15 Johns. 39; Mayell v. Potter, 2 Johns. Cas. 371; Fisk v. Newton, 1 Den. 45. Grier, J., in Richardson v. Goddard, 23 How. U. S. 28, which was an action for the non-delivery of cotton at Boston, shipped at Apalachicola, used this language: 'When goods are not accepted by the consignee, the carrier should put them in a place of safety; and when

he has so done, he is no longer liable on his contract of affreightment.' It follows that until this is done, the liability of the carrier continues: See 2 Kent. Com. 605. If it be conceded that a carrier by water may discharge himself from liability by delivering merchandise upon a wharf, with notice to the consignee, the latter is entitled to reasonable time to remove them, and they are at the risk of the carrier until a reasonable time has elapsed; and a right to put the goods in store for the consignee does not exist until the latter has had reasonable time for their removal: Price v. Powell, 3 N. Y. 322. It was doubted in the case cited, whether a local custom might be shown in exoneration of the carrier, by which the delivery was complete by landing merchandise on the wharf.”

This reasonable time and the effect of the consignee's delay, are considered in Thomas v. Day, 4 Esp. 462. Where a carrier (a master of a vessel, for example) has once fairly delivered goods to the consignee, his duty is fulfilled, and his responsibility ceases; and this ought to apprise the consignee, that every instant of the time he allows to elapse after such delivery, without objection or complaint, carries a presumption with it in favor of the master, that the goods were safely delivered, or that no blame is to be imputed to him; for it is inconsistent with his duties and obligations, and would be injurious to commerce, that his responsibility should continue for months and years after such delivery. A recent case in New York, McAndrew v. Whitlock, 52 N. Y. 40, presents a full examination of this question. A carrier of goods by water, it is held, may land them at a wharf, at the port of destination, but not until after he has given the consignee due notice of their arrival and unlading, and afforded him a reasonable time to take charge of and secure them. In the meantime, instead of leaving them on the wharf, it is his duty to take care of them for the owners. See to the same effect Whitbeck v. Holland, 45 N. Y. 13.

The English rule laid down by Tindal, C. J., in Gatliffe v. Bourne, 4 Bing. N. C. 314, and affirmed by the house of lords in 11 Cl. & Fin. 45, has generally been approved. It holds that the carriers are bound to deliver the goods to the consignee, provided the latter appears within a reasonable time to receive them, and that the consignee is entitled to a fair and reasonable opportunity to receive his goods before the carrier can deliver them over to himself or to another, as warehouseman. The same rule is adopted in The Eddy, 5 Wall. 481.

WHEN LIABILITY ENDS.-The majority of cases hold that one who undertakes to transport goods as a carrier, is bound to deliver to the consignee, who must have a reasonable time to come and take away the goods, and during such time, the carrier is responsible as such for the goods, and not merely as a warehouseman. The principal case affirms this doctrine; and it is held in some of our best considered cases: McAndrew v. Whitlock, 52 N. Y. 40; Sherman v. Hudson R. R., 64 N. Y. 254; Moses v. Boston etc. R. R. 32 N. H. 523; Wood v. Crocker, 18 Wis. 345; Wood v. Milwaukee R. R., 27 Id. 541; S. C., 9 Am. Rep. 46; Parker v. Milwaukee R. R., 30 Id. 689; Oumit v. Henshaw, 35 Vt. 605; Blumenthal v. Brainard, 38 Id. 402; Alabama R. R. v. Kidd, 35 Ala. 209; Mobile R. R. v. Prewitt, 46 Id. 63; S. C., 7 Am. Rep. 586; Graves v. Hartford Steamboat Co., 38 Conn. 143; McMillan v. Michigan R. R., 16 Mich. 79; Railroad Co. v. Manufacturing Co., 16 Wall. 318; Maignan v. New Orleans R. R., 24 La. An. 333; Story on Bailments, Bec. 545, a; Angell on Carriers, sec. 310; Railroad Co. v. Maris, 16 Kan. 333. Here the question was presented for the first time, and the court preferred to follow the doctrine that the carrier's liability continued for a reasonable time

after arrival, until the consignee had time to come for the goods; the reasonable time does not vary with the distance, convenience or necessities of the consignee, but is such a time as will enable one living in the vicinity, in the ordinary course of business, and in usual hours, to inspect and remove the goods.

A distinction is made between carriers on railroads and carriers by water, in Massachusetts. By a series of decisions in that state, a railroad ceases to be a common carrier, and becomes a warehouseman, as matter of law, when it has completed the duty of transportation and assumed the position of warehouseman, as matter of fact, and according to the usages and necessities of the business in which it is engaged: Rice v. Hart, 118 Mass. 201; Thomas v. Boston etc. R. R., 10 Met. 472. In Rice v. Hart, Gray, C. J., traces the course of decisions in that state, and says: "Upon a careful examination of the numerous decisions in other states, fully collected in the elaborate arguments at the bar, some in accordance and some in conflict with the judgment in this court, we find nothing which adds to or controls the reasoning of Chief Justice Shaw, upon which, more than twenty years ago, the law of this commonwealth was authoritatively settled. This case does not require us to consider whether the rule should extend to a case in which the goods have not arrived at their final destination, but are held by one railroad corporation in a warehouse at the end of its own line with the duty of forwarding them by another carrier to their ultimate destination; as to which the judgments in the supreme court of the United States in Railroad v. Co. Manufacturing Co., 16 Wall. 318, and of the court of appeals in New York in McDonald v. Western R. R., 34 N. Y. 497, seem to be in conflict with the opinions expressed in Denny v. N. Y. Cent. R. R., 13 Gray, 481, 487, and Judson v. Western R. R., 4 Allen, 520, 523. The other cases cited for the plaintiffs in the supreme court of the United States, the house of lords, the court of appeals of New York, and this court, were cases of common carriers by sea, who have not the same means of warehousing goods at their destination, and are not therefore within the rule which governs railroad corporations."

There is one advantage in the rule thus laid down, that it dispenses with the consideration of what reasonable time is; a period which must vary and be uncertain, depending upon a number of considerations. In Graves v. Hartford Steamboat Co., 38 Conn. 143, the doctrine of the Massachusetts cases was noticed, the court saying: "The rule adopted in Massachusetts has the merit of being definite and of easy application, and may, in many cases, avoid a painful controversy as to what, under the circumstances, is a reasonable time within which the consignee must appear and take his goods. But on the other hand the rule puts an end to the carrier's responsibility as such, just where that responsibility is of the highest value to the shipper." Judge Redfield, in a note to this case in 12 Law Reg. 31, approves the doctrine here laid down, and controverts that held in the Massachusetts cases. He shows that in New Hampshire, in Moses v. Boston etc. R. R., 32 N. ¡H. 623, and in Vermont, Blumenthal v. Brainard, 38 Vt. 402, the rule in Massachusetts is not accepted. Notwithstanding many cases still hold, as do those in Massachusetts, that a railroad's responsibility as a common carrier ceases when the goods are deposited in its warehouse at the destination of the goods, and it is then only liable to the obligation of a warehouseman: Porter v. Chicago R. R., 20 Ill. 407; Chicago etc. R. R. Co. v. Scott, 42 Id. 133; Bansemer v. Toledo R. R., 25 Ind. 434; Pittsburgh etc. R. R. v. Nash, 43 Id. 423; Francis v. Dubuque R. R., 24 Iowa, 60; Jackson v. Sacramento R. R., 23 Cal. 268, 272; Civil Code of California, sec. 2120; McCarty v. N. Y. & Erie R. R., 30 Pa. St. 253.

NOTICE TO CONSIGNEE.-In Chicago etc R. R. Co. v. Scott, 42 Ill. 133, it is decided that notice need not be given of the arrival of the goods to the consignee; the carrier terminates his liability as such when the goods are deposited in his warehouse, and the consignee should come there for them. The question whether notice should be given was raised in Railroad Co. v. Maris, 15 Kan. 333, where the court say: "It is insisted, however, that notice was required of their arrival, and that no notice was received until after the destruction. Whether, independent of the special contract, any notice was requisite, may be doubted. The consignee did not live at or near the place of delivery, and the authorities are conflicting upon the question whether notice is requisite even when the consignee lives at the place of delivery. But whether notice independent of any special contract would have been requisite need not be determined, for here the parties had stipulated for notice."

It may be stated as a general rule that notice is required to be given unless there is some special usage dispensing with it. Notice is held to be necessary in the following cases: Fenner v. Buffalo etc. R. R., 44 N. Y. 505; Sherman v. Hudson R. R., 64 Id. 254; Derosia v. Winona R. R., 18 Minn. 133. In 2 Parsons on Contr. 188, it is stated "that the railroad carrier should give notice forthwith, on the arrival of the goods, to the consignee, if his residence is known or can be found by any reasonable exertions." While Redfield, Railways, vol. 2, p. 61, says that it is settled that the carrier by railroad is neither bound to deliver to the consignee personally, or to give notice of the arrival of the goods, except under certain circumstances. He admits notice is necessary by carriers on water. The prevailing opinion, he says, seems to be that in regard to these, the necessity of giving notice of the arrival of the goods depends upon custom and usage and the course of business at the place. It will be seen, therefore, that much of the conflict in the authorities arises from the recognition of some established usage and course of business which so largely controls the decisions; and this variance is not one so much of principle as precedent, which is influenced so much by local usage. Thus cases deciding that notice must be given, and that the carrier's liability cannot be terminated until a reasonable time is given, are generally predicated on some well-known course of business in the place. This is the reason there is such confusion in the cases on this subject.

USAGE.-The liability of a common carrier is usually regulated and controlled by the terms of the contract between the parties, but in the absence of any express agreement, the usage and course of business have much weight in determining such liability: 2 Redfield on Railways, 61; Pittsburgh etc. R. R. v. Nash, 43 Ind. 423. So in 2 Parsons on Contracts, 187: "Usage, so long established, so uniform, and so well known that it must be supposed that the parties to a contract knew it and referred to it, becomes as it were a part of the contract, and may modify the rights and duties of the parties in an important manner. And in determining what is sufficient delivery of goods by a carrier, usage has frequently great influence." But where a carrier seeks to excuse or justify himself by a usage, it must be well established and generally known: Angell on Carriers, sec. 301; Blin v. Mayo, 10 Vt. 56; Huston v. Peters, 1 Met. Ky. 558; Gibson v. Culver, 17 Wend. 305. A usage that the master of the vessel may select the wharf is valid: Dixon v. Dunham, 14 Ill. 324. A usage to deliver goods on the wharf must be shown: Steamboat Sultan v. Chapman, 5 Wis. 454; The Eddy, 5 Wall. 481. If it is customary for the carrier by water to carry merely from port to port, or from wharf to wharf, and for the owner or consignee to receive the goods at the vessel or at

the wharf as soon as the arrival of the vessel is reported, it is of the essence of the rule that such is a good delivery, that due and reasonable notice should be given to the owner or consignee, so as to afford him a fair opportunity of providing suitable means to take care of and carry off the goods: 2 Kent. Com. 604; Cope v. Cordova, 1 Rawle, 203; Crawford v. Clark, 15 Ill. 561.

DELIVERY TO WHOM.-One of the points considered in the principal case was the person to whom delivery should be made. The carrier is as much under obligation to deliver the goods to the right person as to deliver them in a reasonable time and at the proper place. By the common law a delivery to the wrong person may be treated as a conversion of the property: Story on Bailments, sec. 545 b; Angell on Carriers, sec. 324; Sanquier v. London, R. R., 16 C. B. 163.

When the carrier is unable to find the person to whom the goods are consigned, he should have them safely stored for the consignor: Angell on Carriers, sec. 325; Sherman v. Hudson R. R., 64 N. Y. 254. In Odell v. Boston etc. R. R., 109 Mass. 50, the plaintiff bought hay of A., to be delivered by the defendant corporation. A. took it to the defendant, marked with th● plaintiff's name, and gave directions to have it carried to him. By mistako the name of another person was entered on the way-bill; and after carrying the hay the defendant inquired of A. as to the person to whom it was to be delivered, and was told to deliver it to the other person. A delivery was made accordingly, and it was held that the plaintiff was entitled to recover. In Dunbar v. Boston R. R., 110 Mass. 26, A. sold goods to B., who gave his name as C. The goods were sent by a common carrier addressed to C., and a bill of lading sent by mail to the same address. B. obtained the goods of the carrier, without producing the bill of lading, by signing a receipt in his own name. There was no person by the name of C. in the place where the goods were sent. An action, it was held, would not lie by A. against the

carrier.

The question as to whom delivery should be made is considered in American Ex. Co. v. Greenhalgh, 80 Ill. 68, where it is held that a common carrier may usually deliver goods to the consignee on the terms specified, or if refused by the consignee, he may return them to the consignor; or if the title has changed after receiving them, or if neither the consignor nor the consignee had title to the property when he received it, he may absolve himself from the duties of a common carrier by delivering it to the true owner. When a common carrier delivers goods to one other than the consignee, he does so at his peril, and it devolves upon him to prove that he has delivered them to the real owner.

If goods are shipped by the owner by rail to his own address, and the agent of the railway company delivers the same to an unauthorized person, who advances the freight only, trover will lie against the carrier, although he may afterwards make arrangements whereby to get the goods: Indianapolis etc. R. R. v. Herndon, 81 Ill. 143.

The right of a carrier to deliver goods only to the owner when the consignee cannot be found, is determined in Thompson v. Fargo, 49 N. Y. 188. Here an agent sent a package containing a certain amount of money to parties in Terre Haute, Indiana, by the U. S. Express Co. The company was unable to find the parties to whom the money was sent. The package contained money due to the consignees for back pay in the army, and collected for them by the plaintiff. When the plaintiff demanded the return of the package, the company refused, and suit was brought. The court of appeals held that the defendant had a right to see that the package was delivered to