Stevens v. Boston & Worcester Railroad

By the Court. 1. The defence is placed in the answer, partly on the defendants’ own lien for freight, and partly on the rights of Bishop-5c Co.; but Bishop 5c Co. are the real defendants. It is a question of priority of lien — of priority of title. This case depends on a question of fact — To whom did Williams first transfer the possession ? But it does not depend on the mere priority of signing either bill of lading; it is the shipment which gives the lien — the delivery on board the boat of the common carrier, with notice to the party, which would vest the property in him. The question is, which in fact made the advance ; and on whose account did Williams deliver it on board the Bucephalus ; for possession is essential to the lien [266] This question was left to the jury, with instructions which were full, accurate and well adapted to the evidence. If the first delivery was to the plaintiffs, the second delivery was a fraud upon them. To sign two bills of lading at the same time was a fraud upon somebody, and it was a question for ihe jury upon which. 2 The defendants objected that, as the plaintiffs actually advanced only $1,500 when the contract was made with them, the delivery could not be considered as made until they advanced the remaining $1,500. But this is a question of special property, of possession necessary to support the lien; and when the lien had attached, it would support advances to be made as well as those already made. 3. Then a question arises as to the lien of the defendants. It appears that a custom, and a very convenient one, has sprung up, for each carrier on a line of transportation to pay the previous carrier, so that the freight goes on accumulating, and the consignee receives the goods of the last carrier, on paying to him the full amount of all the freights. The defendants’ right depends on the question whether they rightfully paid the freight to a party entitled to it. Robinson v. Baker, 5 Cush. 137. If the freight would not be due to the subsequent carrier, it would not be due to the previous carrier, and therefore the subsequent carrier could not acquire any lien by claiming under a previous one. 4. Then it was said that the carriage, by whomsoever rendered, was beneficial to the plaintiffs, as far as Albany; because, by either bill of lading, the property was intended to be carried by the same conveyance to that point. But the defendants’ title depends on the title of their employers. Non constat that the injury did not exceed the benefit. The time reason why the defendants have no lien is, that those who undertook to ship had no authority to ship, and therefore no authority to create a lien on the goods. Exceptions overruled.