One question in regard to the carrier's obligation to deliver goods to the shipper or consignor, has been much agitated, and perhaps is not quite settled. It arises in the case of another party claiming the goods as owner, and taking them in that character from the carrier. Will such taking excuse the carrier for non-delivery? If the goods are demanded from him by a third party on this ground, can he deliver the goods and justify his conduct? It is quite certain that the carrier cannot himself raise the question of title in a third person, and on that ground refuse delivery to the party originally holding them. (x) And it is undoubtedly the general rule, that the carrier cannot deny * the title of the party from whom he has received the goods for transportation. In general, no agent can defend against the action of his principal, by setting up the jus tertii in his own favor. (y) On the other hand, if the carrier delivers them to a third party, and it can be shown in an action against him that this third party was the actual and lawful owner, and that the plaintiff, who delivered the goods to the carrier, had no right to them whatever, this certainly is a sufficient defence. (z) It is held, in general, that if he does not yield to an adverse claim by a third party, he is liable to an action, in case the title of * this party be good. (a) The carrier may have his in(v) Edwards v. Sherratt, 1 East, 604; Titchburne v. White, 1 Stra. 145; Batson v. Donovan, 4 B. ft Ald. 21.

(w) Hammond v. McClures, 1 Bar, 101.

(x) Anon., cited in Laclouch v. Towle, 8 Esp. 114. This was a case tried before Mr. Justice Gould, and was to the following effect. A carrier had a parcel of goods delivered to him, to be carried from Maidstone to London, While the goods lay at his warehouse, a person came there who said the goods were his, and claimed them from the carrier; the carrier said he could not deliver them; but that if he was indemnified he would keep them, and not deliver them according to order. An indemnity was given; and the goods not being delivered according to order, the party by whom they were delivered to the carrier brought an action against the carrier. The learned judge would not permit him to set up any question of property out of the plaintiff; and held that he, having received the goods from him, was precluded from questioning his title, or showing a property in any other person. And Lord Kenyan, before whom the case was cited, admitted it to be law. See also ante, p. * 142, note (t), and Great Western B. B. Co. v. McComas, 33 Ill. 185.

(y) Nickolson v. Knowles, 5 Madd. 47; Myler v. Fitzpatrick, 6 Mad. & G. 860; Dixson v. Hammond, 2 B. & Ald. 310; Roberts v. Ogilby, 9 Price, 269; Hard-man v. Willcock, 9 Bing. 382, n. (a); Bates v. Stanton, 1 Duer, 79.

(z) This was settled, after much consideration, in King v. Richards, 6 Whart. 418. The defendants in that case were common carriers of goods between New York and Philadelphia, and had signed a receipt of certain goods as received of A. which they promised to deliver to his order. In trover by the indorsees of this paper, who had made advances on the goods, it was held, that the defendants might prove that A had no title to the goods; that they had been fraudulently obtained by him from the true owner; and that upon demand made, they had delivered them up to the latter. Kennedy, J., said: "It is said that it would be a breach of trust or an act of treachery, on the part of the bailee, to deliver the goods, even on demand, to the true owner, notwithstanding he has received them from a wrong-doer, because he promised to restore the goods to such wrong-doer. If the bailee in such case receive the goods from the bailor innocently, under the impression made by the bailor that he is the owner thereof, or has the right to dispose of them in the manner he is doing, and therefore promises to return the goods to the bailor, it is very obvious that such a promise ought not to be regarded as binding, because obtained through a false impression, made wilfully by the bailor; and truth, which lies at the foundation of justice, as well as all moral excellence, would seem to require, in every such case, that the goods should be delivered up to the true owner, especially if he demand the same, instead of the wrongful bailor. But if the bailee knew at the time he received the goods, and made the promise to redeliver them to the bailor, with a view to favor the bailor, that the latter had come wrongfully by them, either by having taken them tortiously or feloniously from the owner; then the bailee thereby became a participant in the fraud or the felony, and it would be abhorrent to every principle of justice that he should be protected under such circumstances against the demand or claim of the owner. This promise, however, of the bailee, is said to be binding on him only, and is not such as his personal representatives are bound to regard; and the reason assigned for this is because the goods have come to their possession by operation of law. This doctrine, if it were to be allowed, would certainly be singularly anomalous, and unlike, in its effect, to any other promise recognized by the law as binding." See also Bates v. Stanton, 1 Duer, 79. The doctrine of the text is fully sustained in the case of Sheridan v. The New Quay Co. 93 Ens. C. L. 618. In giving the judgment of the court, Willes, J., says, - "The defendants were common carriers and therefore bound to receive the goods for carriage. They could make no inquiry as to the ownership. They have not voluntarily raised the question; it was raised by the demand of the real owner before the defendants had parted with the goods. The law would have protected them against the real owner if they had delivered the goods in pursuance of their employment, without notice of his claim. It ought equally to protect them against the pseudo owner, from whom they could not refuse to receive the goods, in the present event of the real owner claiming the goods, and their being given up to him."

(a) Wilson v. Anderton, 1 B. & Ad. 450. In this case the captain of a ship, who had taken goods on freight, and who claimed a lien upon them, but whose claim was unfounded, delivered them to the defendant as his bailee. The plaintiff, who was. the owner of the goods, demanded them of the defendant, but he refused to deliver them without the directions of the bailor. The court held, that the bailor not having any lien upon the goods, the refusal of the bailee was sufficient evidence of a conversion. Lord Tenterden, C. J., said: "A bailee can never be in a terpleader in equity to ascertain who has the right; but it is not easy to see what adequate means of self-protection he has at common law. And yet he should be permitted, in some way, to demand security of the party whose title seems to him the better, and to whom he is therefore willing to give the goods. And whenever security is refused, there should be no recovery against him, unless the better title of the person claiming the goods was obvious and certain, or there were other circumstances indicating that the carrier had not acted with entire good faith or proper discretion. But, in the present state of the authorities, it seems that if the carrier be called upon by such antagonistic claimants, he must decide between them at his own peril.

If the goods are stopped in transitu, this would involve questions which could be answered only by the law of "stoppage in transitu" which is elsewhere considered.