from the previous carrier with knowledge that a contract for carrying them has been made and the through freight prepaid to the previous carrier, he is bound by that contract and has no lien upon the goods (50).

Where, however, the payment of charges has been made in advance and the contract does not imply that there shall be a delivery of the goods to a connecting or other carrier, a carrier employed by the contracting carrier to act in substitution for himself will have no lien, but must look to the person who employed him (51). If the last carrier has paid to a previous carrier excessive and improper charges the lien will be restricted to reasonable rates (52).

The mere fact that the carrier has paid charges upon the goods does not enable him to retain them for more than the usual and proper charges for their transportation, nor for any charges disconnected with the cost of transportation. A prior debt due to the forwarding agent from the shipper and prepaid by the carrier will not justify the detention of the goods by the latter against the consignee (53).

Demurrage. Demurrage is an allowance which marine law makes by way of indemnity to the carrier where the vessel has been detained unreasonably long in loading or unloading the cargo through the fault of the customer (54). If the right exists at all so as to afford a lien independently of contract, statute, or

(50) Marsh v. Union Pacific 3 McCrary R. (U.S.) 236, 9 Fed. R. 873

(51) Nordemeyer v. Loescher 1 Hilton (N. Y.) 499.

(52) Travis v. Thompson 37 Barb. (N.Y.) 234; Mallory v. Burrett 1 E. D. Smith (N. Y.) 234.

(53) Virginia v. Kroft 25 Mo. 67.

(54) Schouler on Bailments 3rd ed., sec. 540.

usage tantamount to law, it is confined to carriage by water; and while railroad carriers may store in case of delay, and charge storage rates, or perhaps sue for special damage, they cannot apart from contract or statutory sanction claim demurrage nor enforce such a claim by a lien upon the goods (55).

Lien on passenger's baggage.-Carriers of passengers have the same lien upon the passenger's baggage for the recovery of his fare as they would have for the carriage of his goods, and this lien will cover not only the baggage given over to the care of the carrier to be re-delivered to the passenger at his destination, but such baggage as the passenger takes with him into the passenger coach (56).

The lien on a passenger's baggage is lost if the passenger re-takes the baggage into his personal control and possession before the carrier takes possession of it (57).

The passenger is entitled to a reasonable time after his baggage is placed upon the railway platform, at the end of the journey, to call for it and take it away (58). When the carriers put the passenger's baggage on the platform, or other usual place of delivery, ready to be delivered to the passenger, as they are bound to do, the owner is under an obligation to call for and receive it within a reasonable time (59). And, if the passenger elects to leave the baggage

(55) Chicago Ry.v. Jenkins 103 Ill. 588; Schouler's Bailments, sec. 540.

(56) Hutchings v. Western Ry. 71 Am. Dec. 156; Higgins v. Bretherton 5 C. & P. 2.

(57) Emerson v. Niagara Navigation Co. (1883) 2 Ont. R. 528.

(58). Penton v. Grand Trunk Ry. (1871) 28 U.C.R. 367; Hall v. Grand Trunk Ry. 34 U.C. R. 517.

(59) Shepherd v. Bristol & Exeter Ry., L.R. 3 Ex. 189.

unclaimed until the next day after it is ready to be delivered to him, their liability as carriers is at an end, and, if they place the goods in a baggage room or warehouse, they are not under any higher liability than that of warehousemen (60).

on

Waiver. The carrier waives his lien by delivering the goods without first obtaining payment of the charges for carriage (61). If the master of a vessel voluntarily deposit the goods in a warehouse landing them and so give another person a lien on them, the master loses his own lien for the freight. even though such other person should undertake with him not to deliver the goods to the consignee without being paid the freight charges (62); but if the goods are taken out of the ship in invitum and by compulsion of law, the lien will be preserved at the place where the goods are deposited by law (63).

The carrier's lien is not lost in case the goods are obtained from him by fraud; he has not in such case voluntarily parted with the possession. His right of possession remains and he may assert this right by replevying the goods, though they be in the hands of the consignee (64). A right of lien for freight is not lost by demanding in addition some other charges not recoverable, provided the amount of freight for which a lien in fact existed was not tendered (65). If the bill of lading represents the freight to have been paid, when in fact it not not been paid, that will

(60) Vineberg v. Grand Trunk Ry. (1886) 13 Ont. App. 93, 99. (61) Bigelow v. Heaton 4 Denio (N.Y.) 496.

(62) Mors-le-Blanch v. Wilson L.R. 8 C.P. 227.

(63) Wilson v. Kymer 1 M. & S. 157.

(64) Wallace v. Woodgate, Ry. & M. 193; Bigelow v. Heaton 4 Denio (N. Y.) 496.

(65) Buffalo and Lake Huron Ry. v. Gordon 16 U.C.R. 283.

constitute an estoppel against a claim of the freight as regards a transferee of the bill of lading for value (66); and a lien is waived by the carrier obtaining the goods to be seized by the sheriff under an execution at his suit (67).

(66) Tamvaco v. Simpson L. R. 1 C.P. 363; Howard v. Tucker 1 Barn. & Ad. 712.

(67) Re Coumbe 24 Gr. (Ont.) 519.

CHAPTER XII.

WOODMEN'S LIENS AND LIENS FOR TIMBER DUES.

Woodmen have no common law lien.-Woodmen or labourers employed in cutting, hauling and driving timber had, at common law, no lien upon the timber (1), for, from the nature of the employment, they could not retain possession of the timber.

Property in growing timber.-Where the owner of timbered land has verbally agreed to sell growing timber to another, the property in the trees passes to the buyer as soon as the trees are severed from the freehold and notwithstanding a dispute between the parties as to what was the price agreed upon; but the landowner has a lien upon the timber for the price, and the purchaser is not entitled to remove them without satisfying the lien (2).

Where the landowner sold and conveyed the timber and cordwood thereon and the purchaser gave his note in payment and took possession, and after cutting the timber resold it and absconded without paying the note, the landowner was held to have no lien (3).

In McLeod v. New Brunswick Railway Company (4) the respondent company were owners of timber lands in New Brunswick and granted C. & S. a license to cut on twenty-five square miles. By the license it was agreed, inter alia, as follows:

(1) Oakes v. Moore 24 Me. 214; Arians v. Brickley 65 Wis. 26; Oliver v. Woodman 66 Me. 54.

(2) McCarthy v. Oliver 10 C.L. J. 130, (A. Wilson, J.); 14 U.C.C.P. 290.

(3) Wyatt v. Bank of Toronto, 8 U.C.C.P. 104.

(4) McLeod v. New Brunswick Ry. Co. 5 Can. S.C.R. 281.