any other part of the world. The law of bailments involved in these things, must advance with them. The law of the caravels in former times about the coasts of the old world, or of such open ships as Columbus procured to find another hemisphere, must have been different, when they had been engaged in the unsublime pursuit of carrying passengers for hire, from that of the splendid palaces that float so invitingly on the American rivers. Here is the parlor, and here is the secure state room offered, with its door to be shut and locked with its inside key.

I can recollect when the passenger steamboat was first built on our rivers. It had no door then to protect the berths or sleeping places. They had only the benefit of drapery, except rooms for ladies. Then, of course, the passenger could not expect, when he stepped in haste on this fast traveler, that he could sleep secure from thieves, if any were about, with his watch and breastpin and money near him; and the boat should not then have been liable for what was not specially put in the care of its officers, any more than for a picking of a pocket by a stranger on one of its decks; no more than an innkeeper should be liable for such an act in the public entrance hall. But when the steamboat is so furnished as to offer the passenger the protection of lock and key, he has a right to expect it, and go on board, as he often does in this country, with a haste that would not allow him to inquire whether all is in fit order or not; and in such instances, if he takes his watch and breastpin, and such like articles to his room, or a reasonable sum of money, when he goes to bed, and they are stolen, the boat should be held liable. I would not hold the owner of the boat as an innkeeper is liable at the common law for an interior breaking and robbery, but only as, I think, the civil law would have held him, in analogy to its law of innkeepers, for a failure to carry the party and his effects under his charge, or about his person, with the carefulness substantially offered to every traveler from the structure of the boat.

But it may be contended that if the passenger finds out that the lock of his door is out of order, he should undergo the risk, or take such articles of value as have been about his person to some officer

of the boat for better care. I do not think so, as a general rule. The boat's owner has engaged his safety; and if a lock is out of order, the officers of the boat ought to know it, and have it put in order, or take other means, such as setting a watch or guard, or at any rate offer to take charge and care themselves of the property exposed. Circumstances might change the course to be taken, but none are shown here. It seems to me that unless such a rule be established, passengers will be subjected to the depredations of servants, or others, who may withdraw keys, seeking the chance of carelessness, or too much confidence on the part of the traveler.

It is proved by one witness that there was a printed card posted up in the state rooms requesting passengers to lock their doors, and place any valuables which they might have, in the hands of the clerk for safe keeping, otherwise the boat would not be responsible for such articles. It is not shown, however, that the plaintiff had seen the notice, if there was one in his room. But it could not be supposed that this notice meant that every passenger should deliver his watch, breastpin and pocket money every night to the clerk; for it would be an inconvenience unheard of: these are a part of his apparel, and he might be subjected to disputes about their iden tity every morning; but it had reference to "valuables," not to be kept with the door locked-nothing ordinarily belonging to his dress, or carried about his person. The notice, I think, did not excuse the boat from the loss which happened, because the door could not be fastened. The engagement implied was to have the lock in order, or stand responsible for the robbery. Another rule would be unsafe to the great traveling public in this country. I do not say this implication exists in all instances where the berths are finished with doors to be locked; but I do not think the rule qualified by anything in this case. Wherefore it is decreed that the defendants pay the plaintiff $560, and the costs of this suit; and unless they shall do so in fifteen days, the Court will make such order against the surety as may be proper to enforce the same.

Bullitt & Smith, for plaintiff. Barret & Wood, for defendant.

32

Superior Court of Cincinnati.

AUGUSTUS ISHAM vs. THOMAS GREENHAM.1

1. A common carrier, or other bailee for the transportation of property, must permit the consignee, if he requests it, to examine the cargo at the place of delivery, before he can demand his freight.

2. The duties of the carrier, and consignee, are correlative: the one to deliver, and the other to pay the freight; both are mutual acts.

3. Where the carrier demands a larger sum than that which is stipulated by contract, and refuses to deliver the property at the place of its destination until such additional sum is paid, he may be sued in tort for the conversion.

4. Where the carrier refuses to receive any sum less than the whole amount he thus claims, and the consignee offers to pay the sum stipulated in the contract, no formal tender of that sum is required from the consignee: the law in such a case will not ask him to do a vain thing.

On the trial, the plaintiff proved that his correspondent in Toledo, Ohio, in September last, shipped on the canal boat St. Mary's, of which the defendant was master, thirty tons of ice, to be carried to Cincinnati, and delivered to plaintiff without delay; the stipulated freight being eighty dollars, and the canal tolls in addition. The defendant signed a bill of lading, embodying the contract as proved.

On the arrival of the boat at Cincinnati, the plaintiff called upon the defendant and expressed his readiness to receive the ice, stating at the same time, as the weather was very hot, it was necessary to land the cargo, and place it immediately under cover, the ice-house of the plaintiff being but a short distance from the place of landing, and preparations were immediately made for that purpose. To this application the defendant returned for answer, that he would not permit the ice to leave the boat, until not only the sum agreed upon for freight and tolls was first paid, but twenty-five dollars in addition, for a claim which he asserted for damages said to have

We are indebted to the Messrs. Handy for this case, which will be found in Handy's Rep., v. 1, p. 357.

been sustained somewhere upon the passage from Toledo, by the detention of the boat. This additional sum the plaintiff refused to pay, but proffered to pay the amount stated in the bill of lading; this was in return refused by the defendant, who declining to deliver the cargo, except upon the terms he prescribed, the plaintiff commenced this action and obtained an order for the delivery of the ice.

The case was submitted to the Court by the consent of the parties, and after a full hearing, judgment was rendered for the plaintiff.

The opinion of the Court was delivered by

STORER, J.-The defendant asks for a new trial, on the ground that his lien for freight gave the right to retain the property until the amount was paid, or tendered, by the plaintiff; and though there was an offer to pay the freight, there was no exhibition of the money to the defendant at the time the offer was made, and the defendant, therefore, might well refuse to deliver, until he was satisfied of the plaintiff's ability to pay, should the tender have been accepted.

The plaintiff, on the other hand, insists that the defendant had no lien but for the freight agreed to be paid, and the assertion of a lien beyond that sum was an unlawful assumption of authority over the property, which, when coupled with the refusal to deliver, except upon his own terms, was equivalent to a conversion in law; that the defendant having placed himself in this position, waived a formal tender of the real amount due, and could not require it to be made.

It is very clear, that unless there is a stipulation for the payment of freight at some other place, and at some other time, than the point of delivery, the carrier has a lien upon the cargo for his freight, and cannot be compelled to release it, except by the payment or tender of the amount.

The stipulation in the bill of lading, that the property shall be delivered to a consignee, on the payment of freight, creates a cor

relative duty on the part of the carrier and the consignee, the one to deliver, the other to pay. Neither are compelled to perform their part of the agreement, unless both are willing and ready to act in good faith. As the obligation to perform is mutual, neither can avoid the duty imposed upon each, and claim at the same time the protection of the law. There can be no advantage gained by retaining the cargo on board the vessel, or refusing to break bulk that the condition of the cargo may be known, for the consignee is clearly entitled to examine it, and ascertain whether it is in such order as he will accept it or not; and where the carrier obstinately refuses to land the cargo, or to store it, still retaining his lien for the freight, he ought not to expect that his conduct will be regarded with a favorable eye, should the question be subsequently litigated.

"Where there are mutual acts to be performed by contracting parties at the same time, neither party is bound to do the first act, but each is bound to perform his own; and he who is able and ready, has a right of action against him who is not." Hammond vs. Gilman, 14 Conn. 479. In Tate vs. Meek, 8 Taunton, 280, Chief Justice Gibbs decides the precise point. See also, Yates vs. Railston, 8 Taunton, 302, and Christie vs. Lewis, 2 B. & Beattie, 410.

Without disputing the carrier's lien in the present case for his whole freight, it cannot be claimed that he could assert it for any other amount than that stated in the bill of lading.

There can be no lien for unliquidated damages, nor for any breach of covenant to furnish a full cargo, nor for demurrage, nor for pilotage or port charges. As the contract of affreightment is the only basis of the lien, it is never extended to embrace any other claim than that stipulated to be paid for the carriage of the goods; all else must be matter of special agreement.

In Bailey vs. Gladstone, 3 M. & S. 205, the Court of King's Bench held, that the "owner could not detain the goods for dead freight or demurrage," and a bill being afterwards filed in equity, to set up the lien, Sir William Grant, Master of the Rolls, dismissed it. Gladstone vs. Bailey, 2 Merrivale 401; see also,