Whether a private carrier has a lien on the goods for his freight, is not, as we have already said, determined by the authorities. Generally, perhaps, it has been considered that one of the distinctions between the private carrier and the common carrier is, that the first has no such lien, while the latter has, and has had for centuries. (d) No part of the law of bailments is more firmly established than that the common carrier has this lien. He may not only refuse to carry goods unless the freight is paid to him, but if he carry them, and the freight is withheld, he may retain the goods, and obtain his freight from them in any of the ways in which a party enforces a lien on per-sonal property. (e) But a common carrier can acquire no lien on goods belonging to the United States Government for services rendered in transporting such goods. (f) And while he holds goods on this ground, they are not at his risk as a common carrier, for he is responsible only as any other party who holds property as security for debt.

(b) See ante, p. * 175, note (k). It seems that although a carrier need not receive goods until the price of carriage is paid, yet if he does so receive them he can maintain no action for their carriage until the goods are delivered. Barnes v. Marshall, 14 E. L. & E. 45; s. c. 18 Q. B. 785.

(c) Young v. Smith, 3 Dana, 91. See ante, p. * 200, note (m).

(d) Skinner v. Upshaw, 2 Ld. Ravin. 752; Hunt v. Haskell, 24 Me. 339; day-ward v. Middleton, 1 Mills, Const. 186; Ellis v. James. 5 Ohio, 88; Bowman v. Hilton, 11 Ohio, 303; Fuller v. Bradley, 25 Penn. St. 120.

1 Where rates of freight are fixed by statute, an unlawful excess paid under protest can be recovered back with interest, although at the time the action is brought the statute has been repealed. Graham v. Chicago, etc. R. Co. 53 Wis. 473.

All liens may be abandoned, or waived, or lost. And it has been held that a refusal by a bailee to give up the goods without giving his lien as a reason, is a waiver. (g) And a lien may be lost, as by a repeal of the statute creating it, without affecting the contract. (h)

It has been questioned whether a common carrier, who carries goods of a party, but without his order or knowledge, can maintain a lien for the freight. Generally the owner would have the right to refuse such service, and to require that the goods should be replaced, or he might have his action for intermeddling with his property. But if the facts were such as to * leave to the owner only the option between receiving his goods or rejecting them, must he either refuse the goods, or by accepting, give the carrier all the rights which he would have had if he had himself placed them in the hands of the carrier? If a thief in Albany steals one hundred barrels of flour from an owner who intends to send it to Boston, and the thief, for his own purposes, sends it by railroad to Boston, and there the owner's agent discovers the flour, and recognizes it by marks and numbers, can the owner or the owner's agent get possession of the flour, only by paying the freight, and so discharging the lien of the railroad? If a service has been distinctly rendered to the owner, and he accepts that service and holds the benefit of it, on general principles he must pay for it. Whether that rule would apply here would depend upon the peculiar circumstances of the case. But if it would, it does not follow that the carrier is entitled to his lien. He may have a rightful claim for freight, which he may otherwise enforce, but still have no lien for it on the goods transported. If the lien of the common carrier be connected with his peculiar obligation to carry for all who offer, (i) and his peculiar responsibility as an insurer against everything but the act of God or the public enemy, these three, the lien, the obligation, and the responsibility, existing only together, and in dependence on each other, then it would follow that he has no such lien, unless he was under a legal obligation to carry the goods for the thief. Such an obligation, in the present extension of our internal interchange of property, and with the existing facilities of locomotion, would make the common carrier the most efficient assistant of the thief. We cannot doubt that he may always inquire into the title of one who offers him goods; that he must so inquire if there be any facts which would excite suspicion in a man of ordinary intelligence and honesty; and that if the person offering the goods is neither the owner nor his authorized agent, the carrier is under no obligation to receive and carry them. ^ And then again it follows, * that if he carries goods for one who is neither the owner nor his agent, he carries what he was under no obligation to carry, and therefore cannot maintain his carrier's lien for the freight. This conclusion seems to us, on the whole, most conformable to the prevailing principles of law, and to the actual condition of the carrier's business in this country, and to the present weight of authority. (j)

(e) See Hunt v. Haskell, 94 Me. 399; Fox v. McGregor, 11 Barb. 41. - A relinquishment of possession by a carrier, or other person who has a lien on property, is an abandonment of the lien. By a transfer of the possession, the holder is deemed to yield up the security he has by means of the custody of the property, and to trust only to the responsibility of the owner, or other person liable for the charge. Bailey v. Quint, 22 Vt. 464; Forth v. Simpson, 18 Q. B. 689; Bigelow v. Heaton, 6 Hill (N. Y.), 43; s. c. 4 Denio, 496. But semble, per Beardsley, J., that the lien may be retained after delivery by the agreement of the parties. Id. And it is so held in Sawyer v. Fisher, 32 Me. 28. So if a carrier be induced to deliver goods to the consignee, by a false and fraudulent promise of the latter that he will pay the freight as soon as they are received, the delivery will not amount to a waiver of the carrier's lien, but he may disaffirm the delivery, and sue the consignee in replevin. Bigelow v. Heaton, supra.