Bowman v. Hilton. who paid the charges thereon from Cleveland to Brunersburg. The goods, when taken from the warehouse of Hilton, at Brunersburg, upon the writ of replevin, were damaged to the amount of one-quarter or one-third of their value, which was about $900; said Hilton claiming a right to retain the goods for the charges by him paid. Upon this state of facts, the plaintiff asked the court: 1. To instruct the jury that Brice Hilton, by receiving said 304] goods, made himself liable for any damage done to them *in the course of their transportation from Cleveland to Brunersburg, whether done by him, his agents or servants, or any other person; and, 2. That if such damage amounted to a sum greater than the freight and charges, that they must return a verdict for the plaintiff for nominal damages. The court thereupon instructed the jury, that they should make the deduction in case they found that the damage to the goods occurred by the negligence of the defendant, or some one with whom he was in partnership; but not if they found that the damage was occasioned by any person other than Hilton, or his partners, although they were engaged in transporting the same goods. For this direction to the jury, the counsel for the plaintiff ask the court to grant a new trial. LELAND & SPINK, for the plaintiff. D. HIGGINS, for the defendant. BIRCHARD, J. A correct determination of this motion requires, to some extent, a consideration of the responsibilities which the law casts upon common carriers. The general rule is, that they are bound to carry sately, and deliver in good order, at the place of destination, the goods which they contract to carry. That for the acts of commission or omission, of agents or servants, occasioning damage, the principal is equally liable as for acts of his own. And in case of loss or damage, the presumption of law is against the bailee, unless he shows it was occasioned by the public enemies, or such acts as could not happen by the intervention of man. That when a responsibility has begun, it continues until there has been a proper delivery, or the party has, in some way, been discharged of his peculiar relation to the property. A question arises incidentally, in this case, concerning the commencement Bowman v. Hilton. and termination of the relation of carrier, by the several persons engaged in transporting these goods. The owner shipped them from Cleveland to Williams [305 Centre, to the care of Forsyth & Hall, Maumee City, which was an intermediate point. On their arrival at this place they were delivered to Smith and Howe; Forsyth and Hall, to whom they were consigned, were not in business. Conformably to the usages of trade, the carrier for the first stage did his duty under the circumstances, by depositing with a responsible warehouseman. This would determine his duty, entitle him to receive his freight, and impose upon the warehouseman the duty of forwarding the goods in accordance with the original design of the owner. Smith and Howe gave the goods such direction, and they ultimately came to the defendant's possession, within the originally designed line of transit, from the place of shipment to the point of ultimate destination. They were received in the ordinary course of business, in good faith, in apparent good order, by the defendant, who paid the costs and charges. Had he been, in any legitimate sense, the agent of the bailee, in whose hands they received the injury, the jury could not have allowed the lien set up by him under the charge of the court. Such was not, however, the defendant's position. By the usages of the trade, he became, for the purposes of paying charges, and receiving and forwarding from Brunersburg to Williams Centre, the agent of the plaintiff, and his lien. attached for the moneys expended in an honest endeavor to discharge his duty. Liens of this kind are said to be favored in law, and are not subject to the objections against general liens. From the general course of business, and the directions upon the goods, the defendant had a right to receive them from his immediate consignor, and to presume that the owner had duly authorized the consignment. To entitle him to claim his lien for commission. and advances, the law imposed upon him nothing beyond what a prudent man would, under like circumstances, have done in the discreet management of his own business. Nothing appears in this case which should deprive him of his lien, or that required different instructions to the jury. Motion overruled. 261 Elliott and Elliott v. Ellery. 306] *NELSON J. ELLIOTT AND RICHARD S. Elliott v. George H. ELLERY. A general and standing order of the court of common pleas, directing the clerk to issue execution for his own benefit, and at the instance of any person entitled to costs, will authorize the clerk, without any special order, to issue such execution. THIS is a certiorari, from the court of common pleas of Cuyahoga county, to reverse certain proceedings in that court, on a motion to retax costs. Judgment had been rendered against the defendant in a suit pending in said court, wherein Nelson J. Elliott and Richard S. Elliott were plaintiffs. The clerk's and sheriff's costs, made by the plaintiff, were taxed at nine dollars and seventy-two cents, for which the clerk issued execution against the plaintiffs, on August 16, 1841. The writ followed the form prescribed by the act to regulate the taxation and collection of costs. Swan's Stat. 405. The execution was returned, at the November term, satisfied, and, on its return, a motion was made to rotax the costs, because the clerk had, for his own benefit, issued the execution without any order of the court, and because the costs of issuing the exe cution, and the costs made thercon, were taxed against the plaintiff. On this motion the following order was made: "The court, being fully advised in the premises, are of opinion that the execution set forth in said motion was illegally issued by the clerk, and order that said execution, and the proceedings under it, be and the same are hereby set aside and held for naught, and that the cost accruing under, and by virtue of said execution, be retaxed, and taxed to the clerk, at whose instance said execution issued." A bill of exceptions was taken by the clerk. The bill showed a standing order, entered on the journal of the court, at the October term, 1835, and in force at the time the execution was issued. The order was as follows: 307] *Ordered by the court that, in all cases where the party recovering judgment in this court shall neglect to sue out execu Elliott and Elliott v. Ellery. tion immediately; or, after execution shall have been returned without satisfaction of costs; or, where costs are adjudged against either party on continuances, amendments, or any special rule; the clerk may, for his own benefit, or at the instance of any person entitled to fees in the bill of costs, issue execution against the party indebted to such clerk or other person, for such fees, whether plaintiff or defendant, at any time after the expiration of the time given for the payment of the same, agreeably to the act regulating the taxation and collection of costs; and this is made a standing order of this court." It was agreed that execution had been first issued against the defendant, without satisfaction of costs. In these proceedings, it was assigned for error, that the court held the standing order of the common pleas inoperative; had set aside the execution, and taxed the costs made thereon against the clerk. H. RICE argued : That, upon a proper construction of the statute, the clerk was authorized, at his own instance, to issue execution for costs, without any order of the court. That the words of the act, "by order of the court," referred only to such costs as might be taxed by order of the court. But that, if any order were necessary, the general and standing order was sufficient, without direction for execution in each case; and, that execution having been issued and returned nnsatisfied, the clerk was fully authorized to issue against the plaintiffs in the suit below for the costs made by them. BOLTON & KELLY, contra. READ, J. The determination of the question, in this case, depends upon the construction of section 4 of the act regulating the taxation and collection of costs. Swan's Stat. *105. [308 The execution issued by the clerk included the plaintiffs' costs and costs of the execution, and such costs as might accrue under it. Had the clerk the right to issue such execution? Section 4 of the act above cited is as follows: "That when the party recovering judgment shall neglect to sue out execution immediately, or after such execution shall have been returned without satisfaction of costs, the clerk may, for his own benefit, or shall, at the instance of any person entitled to fees, in a bill of costs, taxed against either party, and by order Elliott and Elliott v. Ellery. of court, issue against the party indebted to such clerk or other person, for such fees, whether plaintiff or defendant, an execution to compel the party to pay his own costs." The form of the writ prescribed, commands the sheriff to make not only the original costs for which the writ issued, but also the costs of the writ itself so issued, and all the costs that may accrue. Thus, the person against whom this process under the act issued, is charged with the costs of such process, as well as the original amount of costs adjudged against him. The question then is: May the clerk, at his own instance, and for his own benefit, or the instance of any person interested in the costs, issue such process without an order of court; or, if there must be an order of court authorizing it, must it be a special order in each case, or may it be upon a general and standing order of the court for all cases? Must there be an order at all to authorize the clerk to issue? The object of the statute is to confer power upon the clerk to issue execution for the costs due himself and others, when the party having judgment fails to do so; or, where doing so, the execution is returned unsatisfied. It was to enable the persons to whom the costs were due to collect the same, without awaiting the tardy action of the parties to the suit, or from being driven to a distinct action to recover the same. The whole solution of this question depends upon the fact, whether the clause, "by order of the court," refers to the taxation of costs, or to issuing the writ of excution. The clause of the act is in these words: "The clerk may, for his own benefit, 309] *or shall, at the instance of any person entitled to fees in the bill of costs, taxed against either party, and by order of the court, issue against the party indebted." Shall he not then issue for costs regularly taxed, in accordance with the fee bill, and such costs as, by order of court, may be taxed against either party? The court often directs one party to pay costs which he would not, except for such order, be compelled to pay, as a condition to some favor which he seeks at the hands of the conrt, that delays or is detrimental to the other party. How can the clerk issue immediately (upon the contingency happening named in the statute), if he is to await the order of the court to issue? Why say he shall issue at the instance of any person entitled, if it can only be done by order of the court? Why should it be done by |