(t) In Ogle v. Atkinson, 6 Taunt. 769, it was decided, that a warehouseman, receiving goods from a consignee, who has had actual possession of them, to be kept for his use, may nevertheless refuse to redeliver them, if they are the property of another. But several subsequent cases have established that a warehouseman cannot dispute the title of his bailor, or of any other person whose title he has acknowledged, in an action brought against him by such person. See Gosling v. Bir-nie, 7 Bing. 339; Holl v. Griffin, 10 Bine. 246; Kieran v. Sandars, 6 A. & E. 615; Harman v. Anderson, 2 Camp. 243; Stonard v. Dunkin, id. 344; Burton v. Wilkinson, 18 Vt. 186. In the case, however, of Cheesman v. Exall, 4 E. L. & E.

438; s. c. 6 Exch. 341, where property had been delivered by the plaintiff to the defendant, for the purpose of defeating an execution against the plaintiff, it was held, that in the present action of trover the defendant might set up the title of a previous transferee of the plaintiff to defeat the plaintiff's right to recover, and the court refer to Ogle v. Atkinson as in point. The court are inclined to the opinion that in the case of a pledge the pledgee may set up the jus tertii unless he has made an absolute agreement to give up the property to the party pledging it. See also Bates v. Stanton, 1 Duer, 79; Pitt v. Albritton, 12 Ired. L. 77. So if a warehouseman delivers the goods intrusted to him to a wrong person by mistake, or they are obtained from him by fraud, as by a forged order, he is liable to his bailor for their value. Lubbock v. Inglis, 1 Stark. 104; Willard v. Bridge, 4 Barb. 861. On the other hand, if the goods are taken from the possession of the warehouseman by the authority of the law, this constitutes a good defence for him in an action brought against him by his bailor. Burton v. Wilkinson, 18 Vt. 186.

It has been recently held, that a bailee who seeks to excuse his non-delivery of goods to one party when they are claimed by another, makes himself a party to the controversy, and his excuse is or is not valid according to its result; but that he may remain neutral, and permit a claimant to take them on his own responsibility; (tt) but this rule if it be one, must be subject to much qualification. If sued by the shipper, it seems that he may set up in defence his delivery of the goods to the rightful owner. (tu)

In an action against a warehouseman to recover the value of lost baggage, the owner has been admitted to prove the contents, in the same way as in a similar action against a common carrier; but this privilege is strictly confined to the ordinary baggage of a traveller. (u)

A warehouseman has a lien on the goods which he stores, for his charges for those goods; and he may redeliver a part of those goods, and retain his lien on the residue, for the whole of his charges on all the goods; provided they were delivered to him as one bailment. But he has no general lien on the goods for all his charges against the bailor for storage of other goods. (v) l

Wharfingers. This kind of bailment is quite similar to that first spoken of, and the rules of law applicable to it are much the same. (w) 2

(tt) Rogers v. Weir, 34 N. Y. 468.

(tu) Bliven v. Hudson R. R. R Co. 86 N Y 403.

(u) Clark v. 8pence, 10 Watts, 885.

(v) Schmidt v. Blood, 9 Wend. 268. The subject of the warehouseman's lien is fully and learnedly considered in Steinman v. Wilkins, 7 W. & S. 466; Cole v. Tyng, 24 111. 09. Held, that where a party purchases a warehouse receipt for grain, which he is informed is subject to charges for storage, he will be liable for such charges; and the warehousemen will have a lien for such charges; and if the warehousemen permit the grain to be removed before charges paid, they do not thereby lose their recourse against the holder of the receipt

(w) Platt v. Hibbard, 7 Cowen, 497, 502, n. (b); Sidaways v. Todd, 2 Stark. 400; Foote v. Storrs, 2 Barb. 826. It

1 A warehouseman who has goods deposited with him as such, is not "an agent intrusted with the possession" of them, within the Factors Act, 5 & 6 Vict c. 39, such as may make a valid pledge of them against his principals. Cole v. Northwestern Bank, L. B. 10 C. P. 354. - Where wood was stored, terminable at the end of any month, at a certain price, and notice was given the owner that an exorbitant sum would be charged if the wood was not removed at the end of the current month, it was held, on the failure so to remove, that only market rates for the subsequent time could be recovered. Haseltine v. Weld, 73 N. Y. 156.

2 See Howell v. Morlan, 78 Ill. 162, that a wharfinger negligently failing to forward goods as directed is liable for the ensuing loss of their value due to the consignee's insolvency.

It has been somewhat questioned whether, in the case of depositaries for hire, and loss or injury to the goods, the law casts the burden of proving negligence on the owner, or that of proving due care and the absence of negligence on the depositary. We have considered this point in a previous note; (x) and the * cases there cited show that the decided weight of authority is in favor of requiring proof of negligence, on the ground that the law will not intend any wrong-doing. But there have been opposite decisions; and courts which adopt this rule sometimes regret its existence.

The wharfinger has a lien on vessel and goods for his wharfage. (y) And he is said to have not only a specific lien, but a general lien on the goods for his balance against the owner in respect to freight and wharfage; we do not, however, consider this certain. (z)

Postmasters might be regarded as depositaries for a compensation, or as carriers; and as common carriers, because they are obliged to carry for all. But they are also public officers; receiving their appointments and their compensation from the State, which alone regulates and directs their duties. Hence they come under a different obligation and liability from that of ordinary common carriers. The postmaster-general is not liable for loss although it be caused by the negligence of his servants. The law was so established in Lord Holt's time, though against his opinion, in the case of Lane v. Cotton; (a) and that case has been considered as law ever since. (b) 1 But it should seem, from general principles, that if such servant were wholly incompetent, and the knowledge of the incompetency were brought home to has sometimes been inferred from the cases of Ross v. Johnson, 5 Burr. 2825, and Maying v. Todd, 1 Stark. 72, that the rule as to the liability of wharfingers was different from what we have stated, and that they are held to the same degree of responsibility as common carriers. But it is very doubtful whether those cases justify such an inference; and if they do, they cannot now be considered as law.