by the common law to charge equal rates to all his customers; indeed, the railway is in some cases expressly permitted to charge higher than the average rates on small parcels, not exceeding in weight five hundred pounds; and even where the company is required to establish its rates of freight at so much per mile, equally for all persons, they are not prohibited from demanding different rates on different classes of goods.*

It is quite evident that a line of railroads can carry freight a thousand miles at a less rate per mile, than it can carry the same freight one hundred miles; since the cost of loading and unloading is the same in both cases. And though we eliminate this item of difference, by making a due allowance for it, cxperts in the business still claim that a line of roads may carry large quantities over long distances at lower rates per ton per mile than smaller quantities over shorter distances, and derive equal profits from the transportation; because there may be greater economy practiced in the use of labor, steam-power and rolling stock on the long routes.3 A settlement of this question of fact must naturally precede a statuto establishing freights at so much a mile, with merely an allowance for the difference in the expense of handling the goods.*

§ 520. Railway and canal companies are in England required by statute to afford all reasonable facilities for receiving and forwarding and delivering goods and chattels, without making or giving any unreasonable preference or advantage to or in favor of any person or company, or any kind of traffic; and without subjecting any person or company or traffic to any prejudice or disadvantage. For any conduct in contravention of the statute, the injured party may have an injunction restraining the company from any further violation of the act. It is a violation of the statute for a railway to carry for one person or company the same class of merchandise at lower rates than they charge other persons; it is a discrimination not permitted by the statute, unless there be circumstances which render the cost to the company of carrying for the former less than the cost of carrying for the latter;7 or unless the goods be dif

1 Boxendale v. Eastern Counties R. Co., 4 C. B. (N. S.), 63; 21 L. J. C. P., 137.

2 Parker v. Great Western R. Co., 6 El. and Black., 77; 2 Jur. N. S., 325. 3 Ransome v. Eastern Counties R., 38 Eng. L. and Eq., 232; S. C., 31 Law Times, 72; the proposition is assumed in Nicholson v. Great Western R. Co., 4 C. B. N. S., 366; 4 Jur. N. S., 1187; 28 L. J. C. P., 89.

4 Shipper v. Penn. R. Co., 47 Pa. St. R., 359.

5 17 and 18 Vict. C., 31.

6 Harrison v. Cockermouth & W. R. Co., 3 C. B. N. S., 693; 4 Jur. N. S., 2391 27 L. J. C. P., 169.

Oxlado v. North Eastern R. Co., 1 C. B. N. S., 454; 3 Jur. N. S., 637.

ferently packed or done up in parcels so as to occasion, in one case more and in the other less, labor and trouble in handling them. The carrier must deal fairly, he must give the same advantages and facilities to all parties; and he must not establish rates or conduct his business in such a manner as to make it operate unequally or oppressively towards individuals or towards a particular class of his customers.2 The intent of the statute is to give to all persons, in their dealings with a railway carrier, a perfect equality of rights and privileges.

Independent of the statute the carrier is bound to receive and carry the goods of all persons, indifferently, on the same terms, namely, for a reasonable compensation; and the rule does not leave him the room or the liberty to give one person or one company a preference over others.3 His refusal to receive and carry to or for an individual or a company, without giving some legal excuse, renders him liable in an action for damages-liable to the party tendering the goods, where they are consigned to a factor or commission merchant for sale. The party tendering the goods for conveyance should offer to pay a reasonable compensation, specifying a definite sum; he need not make a technical tender of the money.

The carrier has a right to know the nature of a package tendered to him for carriage, since a knowledge of its value must naturally dictate the care to be taken of it and the price to be paid for its transportation; and yet he cannot refuse to receive the package on the ground that the owner declines to disclose its contents.5

§ 521. The law does not permit a common carrier to constrain a customer into an agreement to pay unreasonable rates of freight, under peril of having his goods refused. It justifies the customer in paying the amount demanded, under protest, and allows him afterward to recover back the amount so paid exceeding the carrier's reasonable charges.

1 Boxendale v. Eastern Counties R. Co., 4 C. B. N. S., 63.

2 Boxendale v. Great Western R. Co., 4 Jur. N. S., 1241; 5 C. B. N. S., 309; Boxendale v. Great Western R. Co., 5 C. B. N. S., 336; 28 L. J. C. P., 81; 4 Jur. N. S., 1279; Garton v. Great Western R. Co., 5 C. B. N. S., 669; 5 Jur. N. S., 685; 28 L. J. C. P., 158.

3 New England Ex. Co. v. Maine Central R. R. Co., 57 Maine, 188. See Audenried v. Phila. & Reading R. Co., 68 Penn. St., 370, and Messenger v. Penn. R. R. Co., 7 Vroom, 407; S. C., 37 N. J. (Law), 531; 36 N. J. Law, 407.

4 Lafarge v. Harris, 13 La. Ann., 553; see the form of the complaint or declaration which was held sufficient in Pickford v. Grand Junction R., 8 M. and W., 372.

• Crouch v. London R., 14 C. B., 255; 25 Eng. L. and Eq., 287.

• Parker v. Bristol & Exeter R. Co., 6 Railw. Cas., 776; Garton v. B. & E R. Co., 1 El. B. and S., 112.

On the same principle it allows the owner or consignee, at the place of destination, to pay the amount of freight demanded, under protest, and recover back the excess above the amount justly due.1 Moneys paid under a duress of goods, in order to obtain possession of them and prevent serious losses, may be recovered back; and this species of duress is not a whit more oppressive than an unreasonable demand of freight, made when the goods are first tendered to the carrier for transportation.

§ 522. The carrier is not bound to depart from his usual mode of receiving goods; he has a right to prescribe the manner and the time of receiving them, treating all customers alike. He is not obliged to accept goods of an explosive or dangerous character;3 or goods which are threatened with destruction by the violence of a mob or by a present and imminent danger from a fire.1 Having room and the means of carrying the goods, as the rule is usually stated, he is obliged to receive them, and not otherwise-a reasonable qualification of the rule when we consider the usages or modes of business accompanying the establishment of the rule itself.5 A railway carrier, being obliged affirmatively to prepare for and provide the means of transportation, is clearly bound to anticipate the usual and ordinary demands of business, and by a proper distribution of its rolling stock at the different stations along the road, fulfill its duty to send forward the goods delivered to it without any unreasonable delay. And it is plain that a railroad company cannot excuse a refusal to receive goods, by alleging its own antecedent neglect to provide the means of sending them forward."

§ 523. III. DELIVERY TO THE CARRIER.

In order to charge the carrier with goods, there must be a delivery of them into his custody; a delivery to the carrier personally, to his agent or servant, or to some one acting in his behalf and authorized to 729; Har

1 Ashmole v. Wainwright, 2 Q. B., 837; 2 G. and D., 217; 6 Jur., mony v. Bingham, 12 N. Y., 99, 109.

2 Garton v. Bristol and Exeter R. Co., 5 C. B. N. S., 669; 5 Jur. N. S., 635; 28 L. J. C. P., 158.

3 See post § 531.

4 Edwards v. Sherratt, 1 East, 604; boatmen prevailed on to stop and receive a cargo of corn threatened, and afterwards destroyed by a mob. See situation presented in Miller v. Steam Nav. Co., 10 N. Y., 431; S. C., 13 Barb., 361.

5 Jackson v. Rogers, 2 Show. R., 327; Lovett v. Hobbs, id., 127; Batson v, Donovan, 4 Barn. and Ald., 32.

6 Balientine v. Western Mo. Railw., 40 Mo., 491. The road is not bound to provide against an unusual and extraordinary pressure to send forward grain or merchandise. Wibert v. N. Y. & Erie R. Co., 12 N. Y., 245; Galena and Chicago Union R. R. Co. v. Rae, 18 Ill., 488.

7 Coudiet v. Grand Trunk R. Co., 54 N. Y.,

500.

receive them. It is not enough that the property be delivered upon the carrier's premises, in the place appointed by him for receiving goods; it must be accepted and received, or left with notice in the usual manner.3

The circumstances are to be considered in determining what amounts to a delivery. Parcels of light weight are delivered in the manner suggested by the nature of the property; and the same is true of heavy and cumbersome articles. The delivery of a money package to an express company should be made at the office, to an agent authorized, or at least accustomed to receive such packages. The manner of the delivery is not so important when the goods are received by the carrier's agent to receive; it becomes more important when the goods are left at the proper place, with persons who are not directly authorized and yet are permitted by the carrier, to receive them."

5

§ 524. The mode or custom of delivering goods to a ship carrier, in large quantities, goes far to insure a legal delivery. E. g., the goods are carried to the vessel by a carman in successive loads and delivered to the master or his agent on board, who gives a receipt for each parcel when received; and these receipts are afterwards returned to the master, when he delivers the bill of lading to the shipper. The same custom prevails in our larger towns when goods are delivered to a railroad carrier, or to one of our express companies: a receipt is taken for the package or parcel or box of goods. On a sale of goods, where the purchaser directs them to be sent to him by a specified carrier, the seller making a delivery should take a receipt for them, or have them booked where that is usual; he should deliver them in such a manner as to charge the carrier; otherwise the title will not pass on the delivery; he should make such

1 Selway v. Holloway, 1 Ld. Raym., 46.

9

2 Grosvenor v. The N. Y. C. R. R. Co., 39 N. Y., 34; Blanchard v. Isaacs, 3 Barb., 388.

3 Packard v. Getman, 6 Cowen, 757; Merriam v. Hartford and N. H. Railw., 20 Conn., 354.

Slade v. Hudson River R. Co., 16 Barb., 383; carpenter's tools left at freight depot without notice. See Merritt v. Old Colony and Newport R. Co., 11 Allen, 80, relating to the delivery of an engine.

5 Cronkite v. Wells, 32 N. Y., 247.

6 Burrell v. North, 2 C. and Kirwan, 680; Langworthy v. N. Y. and Harlem R. R. Co., 2 E. D. Smith, 195; 32 N. Y., 247; 12 M. and W., 766.

'Brower v. Peabody, 13 N. Y., 121. The facts presented in this case show the custom or mode of business in New York; see Whitlock v. Hay, 58 N. Y., 284, as to the use of receipts for grain on storage.

8 McCotter v. Hooker, 8 N. Y., 497.

9 People v. Haynes, 14 Wend., 546; Cross v. O'Donnell, 44 N. Y., 661.

a delivery to the carrier as will give the purchaser a remedy against him for his failure to carry safely, and deliver the goods at the place of destination.1

§ 525. It is competent for a carrier to adopt a practice or usage of receiving goods at a station or at a wharf without special notice; and where he does so and by his conduct induces his customers to understand that he will consider a deposit of goods in his freight house or on his wharf or platform as a delivery of them, the deposit must have effect according to the understanding thus established. We give effect to a similar usage when it operates in his favor, at the end of his transportation of the goods, and there is no reason why it should not be held valid when it operates against him; valid from the time when according to the regular routine of business the goods would come into his custody. On the same ground the carrier must be held chargeable with goods when they are delivered at the place appointed by him, or placed in a car under his control with his assent, or when sent to a particular office under his instructions, or in pursuance of an established usage.*

§ 526. The goods or package must be delivered to the carrier, to be carried by him; otherwise he cannot be charged as a carrier. If a passenger on board deliver a sealed letter containing bank notes to the clerk of a steamboat for safe keeping, the contract is one of deposit between them, and the depositary is only responsible for ordinary care. The goods must also be placed in the custody of the carrier; in order to charge him, he must be entrusted with the goods; for where the owner sends a guardian with them, or where the goods are placed in the carrier's conveyance under a contract that the owner shall go along with them and take care of them, the carrier is not answerable as such for their safety. He is not answerable for a watch or for money or for parcels or for wearing apparel which a passenger retains in his own custody. But

1 Clark v. Hutchins, 14 East, 475; Buckman v. Levi, 3 Campb., 414.

2 Merriam v. Hartford & N. II. R. Co., 20 Conn., 350, directly in point; and the J. Russell Manuf. Co. v. N. H. Steamboat Co., 52 N. Y., 657, indirectly; S. C., 50 N. Y., 121.

3 Colepepper v. Good, 5 Carr. and Payne R., 380; Illinois &c. R. R. Co. v. Smyser, 33 Ill., 354.

4 Sims v. Chaplin, 5 Adolph. and Ellis, 634.

5 Wilcox and Fearn v. Steamboat Phila., 9 Louis R., 80.

6 East India Co. v. Pullen, 1 Strange, 690; Brinde v. Dale, 8 Carr. and Payne, 207.

7 Tower v. Utica and S. R. Co., 7 Hill (N. Y.), 47; Miles v. Cottle, 6 Bing, 743; Whalley v. Wray, 3 Esp., 74; Gibbon v. Poynton, 4 Burr., 2297; Abbott. v. Bradstreet, 55 Maine, 530; money stolen from a passenger's pocket; Phelps v. London and N. W. R. Co., 19 C. B. (N. S.), 321; Clark v. Burns, 118 Mass., 275