officer in serving it, it ought to justify the carrier in yielding to it.22 Sec. 743. (§ 401.) Same subject-Carrier must give notice of seizure to owner.-The carrier is also required to give prompt notice to the consignor or owner of the goods, if known, of such seizure, or of the institution of legal proceeding against the goods, in order that he may have the opportunity of showing his title to the goods, or of protecting his interest in them. And a plea setting up as a defense by him a seizure by an officer under legal process was held to be bad on demurrer, because it did not aver the giving of such notice. If, therefore, notice is properly given by the carrier, an action for conversion will not lie; for the carrier has the right to presume that the party notified will attend to his property and protect it in the suit.24 Sec. 744. (401a.) Same subject-Carrier by water must defend suit till owner notified. A carrier by water must do more. "Upon the well-settled rules of maritime law, it is the undoubted duty of the master, upon any interference with his possession, whether by legal proceedings or otherwise, to interpose for the owner's protection, and to make immediate assertion of his rights and interests, by whatsoever measures are appropriate at the time and place. To that extent the master is bound to take part in legal proceedings, and to continue them until, after informing his absent consignee, both of 543, 65 N. W. Rep. 1080, citing St. 489, 32 N. E. Rep. 476, 21 L. Hutch. on Carr. R. A. 117, 34 Am. St. Rep. 579; Jewett v. Olsen, 18 Ore. 419, 23 Pac. Rep. 262, 17 Am. St. Rep. 745. 22. See McAlister v. Railroad Co., 74 Mo. 351, where a regular writ issued under a statute afterwards held unconstitutional was said to justify the carrier. 23. Ohio, etc. R. R. v. Yohe, 51 Ind. 181; Bliven v. Railroad Co., 36 N. Y. 403; Mierson v. Hope, 2 Sweeney, 561; Robinson v. Railroad Co., 16 Fed. Rep. 57, 9 Fed. Rep. 129; Thomas v. Express Co., 73 Minn. 185, 75 N. W. Rep. 1120; Railroad Co. v. O'Donnell, 49 Ohio If the shipper replevies the goods from the carrier, and the latter does not give notice of the replevin action to the consignee, the carrier is not exonerated from liability to the consignee. Spiegel r. Steamship Co., 56 N. Y. Supp. 171, 26 Misc. 414. 24. Merz V. Railway Co., 86 Minn. 33, 90 N. W. Rep. 7. the facts and the local law, so far as need be, the owner has a reasonable opportunity to take upon himself the burden of the litigation. The question arises under the law of the sea, not of the land.25 Sec. 745. (§ 401b.) Same subject-Seizure must not have been brought about by laches or connivance of carrier.-But in order that the seizure shall excuse the carrier, it must have been made without laches, connivance or collusion on his part.26 As has been seen in the preceding sections, he must protect the owner's rights, he must give him prompt notice of the proceedings, and he cannot excuse himself where he invites or colludes in the appropriation of the goods, or stands idly by until they are appropriated. Sec. 746. (§ 402.) The effect of garnishment or trustee process upon the property in the custody of the carrier.-The question has been raised whether the carrier could be summoned to answer by trustee or garnishment process, and in the meantime be required to hold the goods in his charge subject to the future orders of the court. The cases bearing upon this question are few in number and not entirely harmonious. In Adams v. Scott,27 an express company, having in its custody a package of money directed to a non-resident of the state, was thus summoned by one of his creditors, and, the contention being made that the process was not applicable to the common carrier, it was said by the court that "there is no reason why a common carrier should not be liable to the trustee process, in the same manner as other bailees are, unless the nature of his contract is such that a judgment charging him as trustee would not protect him against a claim of the defendant for a 25. Brown, J., in The M. M. Fed. 57; Railroad Co. v. O'DonChase, 37 Fed. Rep. 708, citing Willard v. Dorr, 3 Mason, 166; Cheviot v. Brooks, 1 Johns. 364; Lemon v. Walker, 9 Mass. 404; Hannay v. Eve, 3 Cranch, 247; The Mary Ann Guest, Olcott, 501, 1 Blatchf. 358. 26. Robinson v. Railroad Co., 16 nell, 49 Ohio St. 489, 32 N. E. 27. 104 Mass. 164. non-delivery of the goods at their place of destination. But we are of opinion that such judgment would be sufficient excuse to the trustee for a failure to deliver according to his contract. The doctrine of the common law, that he is responsible for all losses except those occurring by the act of God or a public enemy, has no application to a case like the present. There has been no loss, but the defendant's property has been sequestrated by the law to be applied to his use and benefit. Every man holds his property subject to be attached, and whenever property is attached in a suit against the owner, and taken into the custody of the law, it excuses the person having possession of it from performing his promise, express or implied, to deliver to the owner. The law substitutes the delivery to its officers for a performance of his contract." The better reasoned cases, however, do not seem to follow the rule thus broadly laid down in Adams v. Scott, and a distinction seems to be drawn in them between garnishment of goods after delivery to the carrier, but before they are actually placed in the car and awaiting transit, garnishment of goods actually in transit or out of the state or county in which the garnishment or trustee process is issued, and garnishment of goods held by the carrier as warehouseman pending delivery to the consignee. Sec. 747. ($403.) Same subject.-Where the goods are actually in the depot or yards of a railway company in the county in which the garnishment or trustee proceedings are instituted, there can be no objection to such process.28 But after the goods have been placed in a car for transportation, and a bill of lading issued by the carrier to the shipper, and the car is waiting to be put into the train, the carrier is not required to forego its right to transport the goods or to receive compensation therefor by reason of the service of garnishment or trustee process upon it.29 The cases in which the 28. Landa v. Holek & Co., 129 Mo. 663, 31 S. W. Rep. 900, 50 Am. St. Rep. 663; I. C. R. R. v. Cobb, 48 Ill. 402. 29. Baldwin . Railroad Co., 81 Minn. 247, 83 N. W. 986, 51 L. R. A. 640; Stevenot v. Railway Co., 61 Minn. 104, 63 N. W. Rep. 256, latter rule was framed were ones in which the goods were intended for transportation to a point outside the state, but the correct principle goes farther and is, that any goods, no matter where their destination may be, when actually in transit, are subject to the same rule, and the carrier is not required to forego the benefit of the contract to transport to destination, stop their transportation and take the goods from the car. The only difficulty is in deciding at just what point the goods are actually in transit. Upon this subject the supreme court of Illinois held the following language in reference to the garnishment of railway companies: "The question is, Can a railway company be held liable to judgment on a process of garnishment, merely on the ground that it may have had property in transitu on its route consigned to one who may be a debtor at the time of issuing and serving the writ? No case has been cited by the appellees in which such a proceeding has been sustained, and, in the absence of precedent, we should be strongly inclined to hold that companies were not so liable; certainly not out of the county where the property delivered to them for transportation is situate. Any other rule would make railway companies collecting agents of creditors, and that, too, at the risk of these companies. They are common carriers of all kinds of manufactured and agricultural products, having a lien upon the articles delivered for the freightage. They are obliged, under ordinary circumstances, to carry all that shall be delivered to them, and they discharge their duty by carrying and delivering according to the contract. It is not their business nor is it their interest to know to whom the various articles belong, nor should it be required of them that conflicting claims to the property intrusted to them should be adjusted through controversies, the burden, annoyance and expense of which they must bear. Where the goods are in the depot of a railway company, in the county in which the attachment proceed 28 L. R. A. 600. In this latter the state is not subject to garnishcase the court held that property ment, although it is yet within in the hands of a common car- the state at the time of the service rier in transit to a point outside of the garnishee summons. ings are instituted, there could perhaps be no objection to such process; but on this point we express no definite opinion. When the property has left the county, and is in transit to a distant point, though on the same line of railway, it would be unreasonable to subject the company to the costs, vexation and trouble of such a process, merely because it had received, to be carried, that which the law compelled them to receive and carry." 1930 Sec. 748. Same subject.-When the goods are once outside the bounds of the state or county beyond which the jurisdiction of the court issuing the process does not extend, they certainly cannot be reached by garnishment or trustee process.31 But after the termination of the transportation of the goods, and while the carrier is holding the same as warehouseman, the carrier is liable to garnishment in respect to such property on process issuing from courts having jurisdiction at the place of destination of the goods.32 Sec. 749. (§ 404.) The duty and liability of the carrier when adverse claim is set up to the property. The carrier, in common with other bailees, may yield to the demand of the real owner of the goods, and deliver up the possession to him without being compelled to do so by legal proceedings, whenever he becomes satisfied that his bailor is not the true owner; and when he has done so, he is not estopped from showing that his bailor had no title to the goods, but that they really belonged to the person to whom he has surrendered them. The bailment raises a strong presumption in favor of the bailor, but is not conclusive of his title or right to the goods even as against his bailee. It will, however, devolve upon the carrier or other bailee in such a case to show that the party to whom he has delivered the goods is entitled to them, and the burden 30. Ill. Central R. R. Co. v. Cobb, 48 Ill. 402; Bates v. Railway Co., 60 Wis. 298, 19 N. W. Rep. 72. 31. Ill. Cent. R. R. v. Cobb, 48 Ill. 402; Bates v. Railway Co., 60 Wis. 298, 19 N. W. Rep. 72; Sutherland v. Second Nat. Bank of Peoria, 78 Ky. 250; Wheat. v. Railroad Co., 4 Kan. 370. 32. Cooley v. Railway Co., 53 Minn. 327, 55 N. W. Rep. 141, 39. Am. St. Rep. 609. |