(k) Roberts v. Turner, 12 Johns. 282. This is a very important case on the liability of forwarding merchants. It was an action on the case against the defendant as a common carrier. The defendant resided at Utica, and pursued the business of forwarding merchandise and produce from Utica to Schenectady and Albany. It appeared that the course of business was, for the forwarder to receive the merchandise or produce at his store, and send it by the boatmen who transported goods on the Mohawk River, or by wagons to

Schenectady or Albany, for which he was paid at a certain rate per barrel, etc., and his compensation consisted in the difference between the sum which he was obliged to pay, and that which he received from the owner of the goods. The defendant received from the plaintiff, who resided in Cazenovia, in Madison county, by one Aldrich, his agent, twelve barrels of potash, to be forwarded to Albany to one Trotter; the ashes were put on board a boat, to be carried down the Mohawk to Schenectady, and, while proceeding down the river, the boat ran against a bridge and sunk, and the ashes were thereby lost. The defendant's price for forwarding to Schenectady was twelve shillings per barrel, and the price which he had agreed to pay for transporting the goods in question to that place was eleven shillings; he had no interest in the freight of the goods, and was not concerned as an owner in the boats em-ployed in the carriage of merchandise. The Judge being of opinion that these facts did not make the defendant a common carrier, nonsuited the plaintiff; and a motion having been made to set the nonsuit aside, Spencer, J., said: "On the fullest reflection, I perceive no grounds for changing the opinion expressed at the circuit. The defendant is in no sense a common carrier, either from the nature of his business, or any community of interest with the carrier. Aldrich, who, as the agent of the plaintiff, delivered the ashes in question to the defendant, states the defendant to be a forwarder of merchandise and produce from Utica to Schenectady and Albany; and that he delivered the ashes, with instructions from the plaintiff to send them to Col. Trotter. The case of a carrier stands upon peculiar grounds. He is held responsible as an insurer of the goods, to prevent combinations, chicanery, and fraud. To extend this rigorous law to or owner calls for them, he is then only a warehouseman, although the goods be in his own store. (p) l And if he undertakes to forward them beyond his own route, and for that purpose puts them into a suitable vehicle, or otherwise disposes of them in a proper way for that purpose, he is liable only for negligence. (q) And if he receives goods as warehouseman into his store on his own wharf, for the purpose of carrying them forward, he is not liable as a carrier for their loss until their transit begins, actually or constructively, because until then he does not assume the character of a carrier. (r) If, however, he receives them to forward them, and delivers them to one not authorized to receive them, he is liable. (rr)

1 A warehouseman is not liable for goods deposited "at owner's risk as to fire," and lost without his fault, Irons v. Kentner, 51 la. 88; nor if the owner by the use of ordinary prudence could have himself saved his property, Smith v. Frost, 51 Ga. 336. - It is no part of a warehouseman's business to receive fees from steamboat owners as an inducement to send them goods for shipment; and equity will not compel one partner to share sums so received with his co-partners. Northrup v. Phillips, 99 Ill. 449. - A livery-stable keeper who stores a carriage for a certain charge comes under the same liability as a warehouseman. Searle v. Laverick, L. R. 9 Q. B. 122. - Where a bull gored a horse through an agister's lack of reasonable care, the latter's lack of knowledge of the bull's disposition was held not essential to his liability in Smith v. Cook, 1 Q. B. D. 79.

common carriers, in which case they come under the peculiar rules to be hereafter noticed. It may sometimes be difficult to determine in which capacity such a person acted at the time of the loss. But, in general, the rule is, that if the transit had terminated, and the bailee was only under an engagement to forward the goods by another carrier, he is only a warehouseman. (l) Nor will it cause him to continue to be a common * carrier until the next carrier receives the goods, that he has no distinct compensation as warehouseman. (m) But if the goods are housed by the carrier between the termini of his transit, they are still under his charge as carrier. (n) And if he pays the warehouse rent to another person, he is still liable as carrier, if his duty has not terminated, and he is bound by the contract or the usage to deliver the goods. (o) But if he is only bound to keep them safely until the consignee persons standing in the defendant's situation, it seems to me, would be unjust and unreasonable. The plaintiff knew, or might have known (for his agent knew), that the defendant had no interest in the freight of the goods, owned no part of the boats employed in the carriage of goods, and that his only business in relation to the carriage of goods consisted in forwarding them. That a person thus circumstanced, should be deemed an insurer of goods forwarded by him, an insurer, too, without reward, would, in my judgment, be not only without a precedent, but against all legal principles. Lord Kenyan, in treating of the liability of a carrier (5 T. R. 894), makes this the criterion to determine his character; whether, at the time when the accident happened, the goods were in the custody of the defendants as common carriers. In Garside v. The Proprietors of the Trent and Mersey Navigation Co. 4T.R. 681, the defendants, who were common carriers, undertook to carry goods from Stourport to Manchester, and from thence to be forwarded to Stockport. The goods arrived at Manchester, and were put into the defendants' warehouse, and burnt up before an opportunity arrived to forward them. Lord Kenyon held, the defendants' character of carriers ceased when the goods were put into the warehouse. This case is an authority for saying, that the responsibilities of a common carrier and forwarder of goods rest on very different principles. In the present case the defendant performed his whole undertaking; he gave the ashes in charge to an experienced and faithful boatman. It has been urged that the defendant derived a benefit from the carriage of the goods, in receiving cash from the owners of produce, and paying the boatmen in goods, and also in charging more than he actually paid. The latter suggestion is doubted in point of fact; but admitting the facts to be so, these are advantages derived from the defendant's situation as a warehouse keeper and forwarder of goods, and by no means implicate him as a carrier; for surely the defendant is entitled to some remuneration for the trouble in storing and forwarding goods. In any and every point of view, there is not the least pretext for charging the defendant with this loss as a common carrier."