1 An express company that receives and agrees to transport goods from a certain place to another for a compensation, in the ordinary means or conveyance, although not the owner, and having no interest in the conveyance by which the goods are transported, is a common carrier, U. S. Ex. Co. v. Backman, 28 Ohio St 144; but not a log-driving company, Mann v. White River Log, etc Co. 46 Mich. 38.

We regard truckmen, porters, and the like, who undertake generally to carry goods from one part of a city to from the facts and circumstances of this case, that the defendant had held himself out to the public in such a manner that he would have incurred a liability if he had refused to carry for any one who wished to employ him during the season in question; and the court held him to be a common carrier on this ground, and carefully distinguished him from one who undertakes to carry for hire in a particular instance and under a special contract. On the whole, it seems to be clear that no one can be considered as a common carrier, unless he has in some way held himself out to the public as a carrier, in such a manner as to render him liable to an action if he should refuse to carry for any one who wished to employ him.

That such is the true test, see -----v.

Jackson, 1 Hayw. (N. C.) 14; Fish v. Chapman, 2 Ga. 340; Samms v. Stewart, 20 Ohio, 60. In Fish v. Chapman, Mr. Justice Nisbet declares that Gordon v. Hutchinson, is opposed to the principles of the common law, and its rule wholly inexpedient. The case of Satterlee v. Groat, 1 Wend. 272, is also a very important one upon this point. It appeared that the defendant had been a common carrier between Schenectady and Albany, previous to 1810. He then sold out all his teams but one, which he kept for agricultural purposes on his farm. One witness, however, testified that the defendant employed his team in the carrying and forwarding business, as occasions offered, until 1822 or 1828. But subsequent to that period, there was no evidence of his carrying or forwarding a single load, until April, 1824, when one John Dows applied to him to bring some loads for him from Albany to Schenectady, to which the defendant reluctantly consented, and despatched one Asia with his team for the purpose, with special instructions to bring nothing for any other person; and if Dows' goods were not ready, to come back empty. He brought two loads and returned for a third, under the same instructions, repeated again and again. But Dows' third load not being ready, instead of returning empty, as he was directed to do, he applied to the plaintiffs for a load, which they furnished him, to be carried to Frankfort, in Herkimer county. He arrived at Schenectady late at night. The next morning it was discovered that one of the boxes had been broken open, and a part of the goods stolen. The defendant disavowed all responsibility for the goods, before it was discovered that any of them had been taken, and declared that Asia had violated his express instructions in bringing them. Upon these facts the court held that the defendant was not liable. Sutherland, J., said: "The defendant stood upon the same footing as though he had never been engaged in the forwarding business. He had abandoned it entirely certainly one year, and, according to the weight of evidence, four years previous to this transaction. He makes a special contract with Dows to bring goods for him from Albany, and gives his teamster express instructions to bring goods for no one else. He was acting under a special contract, and not in the capacity of a common carrier. Is he then responsible for the act of his servant, done in violation of his instructions, and not in the ordinary course of the business in which he was employed? If a farmer send his servant with a load of wheat to market, and he, without any instructions from his master, applies to a merchant for a return load, and absconds with it, is the master responsible? Most clearly not. It was an act beyond the scope of the general authority of the servant, quoad hoc, therefore he acted for himself, and on his own responsibility, and not for his employer." And in Kimball v. Rutland & Burlington R. R. Co., 26 Vt. 247, which was an action against the defendants, seeking to charge them as common carriers for the non-delivery in good order of certain cattle put on board their cars by the plaintiff, at Brandon, Vt., to be transported to Cambridge, Mass., it was objected, that although the defendants were common carriers of passenger's freight and baggage, they were not common carriers of cattle. But Isham, J., who delivered the opinion of the court, said: "It is immaterial whether transportation of cattle is regulated as their (defendants') principal employment, or whether it is incidental and subordinate; the fact that they had undertaken such transportation for hire, and for such persons as chose to employ them, establishes their relation as common carriers, and with it the duties and obligations that grow out of it." And see Russell v. Livingston, 10 Barb. 846. But individuals engaged in the express business, namely, in forwarding goods and packages from place to place for hire in vessels and conveyances owned by others, are not common carriers. Hersfield v. Adams, 10 Barb. 677. The case of Haranother as * common carriers; although this seems to be doubted. (e) That wagoners and teamsters who carry goods from one city to another are so, is certain.

* Proprietors of stage-coaches are not common carriers of goods necessarily; but are so if they usually carry goods other than those of their passengers, and hold themselves out as carrying for all who choose to employ them. (f) So where money rison v. Roy, Miss. 896, approaches in its law the case of Gordon v. Hutchinson.

(e) In Brind v. Dale, 8 C. & P. 207, Lord Abinger expressed the opinion at nisi prius, that a town carman, whose carts ply for hire near the wharves, and who lets them by the hour, day, or job, is not a common carrier. The correctness of this opinion is, however, severely questioned by Mr. Justice Story. "What substantial distinction is there," says he, "in the case of parties who ply for hire in the carriage of goods for all persons indifferently, whether the goods are carried from one town to another, or from one place to another within the same town? Is there any substantial difference whether the parties have fixed termini of their business or not, if they hold themselves out as ready and willing to carry goods for any persons whatsoever, to or from any places in the same town, or in different towns?" See Story on Bailm., § 406, n. 1. So, too, the law was expressly adjudged, agreeable to what we have stated in the text, in Robertson v. Kennedy, 2 Dana, 480. That was an action against the defendant for the loss of a hogshead of sugar, which he, as a common carrier, had undertaken, for a reasonable compensation, to carry from the bank of the river in Bradenburg to the plaintiff's store in the same town. At the trial, the plaintiff introduced evidence tending to show that the defendant had been in the habit of hauling for hire, in the town of Bradenburg, for every one who applied to him, with an ox team, driven by his slave; that he had undertaken to haul for the plaintiff the hogs-head in question, and that after the defendant's slave had placed the hogshead on a slide, for the purpose of hauling it to the defendant's store, the slide and hogshead slipped into the river, whereby the sugar was spoiled. Under these circumstances, the court held, that the defendant was liable as a common carrier. And Nichols, J., said: "Every one who pursues the business of transporting goods for hire, for the public generally, is a common carrier. According to the most approved definition, a common carrier is one who undertakes for hire or reward to transport the goods of all such as choose to employ him, from place to place. Draymen, cartmen, and porters, who undertake to carry goods for hire, as a common employment, from one part of a town to another, come within the definition. So also does the driver of a slide with an ox-team. The mode of transporting is immaterial'" And in Ingate v. Christie, 8 Car. & E. 61, where the defendant, who was a lighterman, carrying goods from wharves to ships for anybody who employed him, was sued for 100 cases of figs, lost by reason of the lighter containing them being run down by a steamer, and Mr. Justice Story's opinion, as stated above, was cited for the plaintiffs. Alderson, B., said: "Mr. Justice Story is a great authority, and, if we would but adhere to principle, the law would be what it ought to be, a science. There may be cases on all sides, but I will adhere to principle, if I can. If a person holds himself out to carry goods for every one as a business, and he thus carries from the wharves to the ships in the harbor, he is a common carrier, and if the defendant is a common carrier, he is liable here. There must be a verdict for the plaintiff." The same rule was applied by Lord Campbell to a person who collected goods in town to go by railway, but he himself carried them only to the railway station. Hel-laby v.Weaver, 17 Law Times, July 8, 1851, sittings in London after Trinity term.