and no means of informing himself about them. We cannot see how this case is different from what it would have been if the plaintiffs themselves had delivered the boxes to the company at Marquette. In law the Transit Company acted merely as plaintiffs' agent in turning them over, and cannot be treated as representing the Marquette Railroad Company for any purpose without reversing the whole order of business. Fitch v. Newberry, 1 Doug. (Mich.) 1.

In view of our previous decision we should not feel justified in going into this question at all, if it did not seem to be imagined that if the case of Laughlin v. Railway, 28 Wis. 204 had been fully called to our attention it might have changed our views. The other cases cited on the argument, except one from North Carolina following it, do not have any particular bearing. In that case the court, treating it as a question not directly covered by previous precedents, held that it would be more convenient and less onerous to the owners of goods to adopt such a rule as is contended for by the plaintiffs below. The only ground discovered for it was the presumption that things remain as they once have been shown to exist. The cases cited as resting on that presumption were not at all in point except by some assumed analogy.

We certainly have the highest respect for the decisions of the court which so decided. But we cannot convince ourselves that the decision is well founded on legal analogies, or correct in principle.

The presumption that things remain unchanged applies in such a case as the present just as forcibly backward as forward. It may quite as reasonably be presumed that the goods were delivered at Negaunee and Ishpeming in the condition in which they were received at Marquette, as that they came to Marquette as they left New York. The goods were certainly damaged when they reached their destination. To assume that they were damaged after they left Marquette, and not on any of their previous removals, is to make a very arbitrary assumption which has no more foundation in probability than any other. If it were worth while to enlarge on what is confessedly a presumption not resting on any sure foundation in experience, it might very well be questioned whether such a presumption is admissible at all as applied to things the position of which does not remain either fixed in place or free from disturbance by human agencies. But we need not enlarge on this because the nature of the suit itself raises different presumptions which are well recognized.

This suit is based on the negligence of the carrier. It can only be maintained on the theory that the carrier or its servants did not properly care for or handle the goods. There is no rule better established or more righteous than the rule that any one who claims a right to damages for negligence must prove it. The presump

tion that a party sued has done no wrong must prevail till wrong is shown. A carrier's obligation to carry safely what he received safely is independent of care or negligence. But in the absence of proof that there was property delivered to him, or safely delivered to him, any presumption that he received it is one which goes beyond and behind the duty of a carrier and enters into the origin and making of the contract. Until such property comes into his hands there is nothing for a contract to act upon, and the contract is not proved until that is proved.

In a somewhat similar case, Muddle v. Stride, 9 C. & P. 380, Lord Denman told the jury that if it were left in doubt what the canse of damage was, the defendants were entitled to their verdict, "because you are to see clearly that they were guilty of negligence before you can find your verdict against them. If it turns out, in the consideration of the case, that the injury may as well be attributable to the one cause as the other, then also the defendants will not be liable for negligence."

In Gilbart v. Dale, 5 Ad. & El. 543, the same rule was laid down, and it was held that there could be no recovery without proof, and that the presumption could not be raised without foundation. And in Midland Railway v. Bromley, 17 Q. B. 372, the same principle was affirmed, and it was held that if the evidence was as consistent with the claim of one side as with that of the other, the plaintiff must fail, because he must make his proof preponderate.

There is no reason for presuming that the Marquette Railroad did the mischief, that would not arise with equal force, according to the Wisconsin decision, against either of the previous carriers had they been sued instead. Had the first carrier been sued it would unquestionably have been bound to show a safe transit, because that carrier received the articles in actual good order. A presumption that has no better foundation, and that applies to one as readily as to another, ought not to prevail to raise a further presumption of negligence without proof.

The judgment must be reversed with costs and a new trial granted. The other justices concurred.

See note, Post.

BENJAMIN B. KNIGHT and ROBERT KNIGHT, Copartners,

v.

THE PROVIDENCE AND WORCESTER RAILROAD COMPANY.

(Advance Case, Rhode Island. February 4,1882.)

The P. and W. Railroad Company received, paid the freight charges on certain lots of cotton shipped from Louisiana to Providence, forwarded and delivered the cotton to the consignees. On delivery the cotton was found to be badly damaged by water, and the consignees claimed the right to recoup the damage from the bill of freight and charges of the P. and W. R. R. Co. It appeared that the P. and W. R. R. Co. was not associated with the preceding carriers, and it did not appear where on the lines of transit the damage occurred.

Held, that the recoupment could not be allowed.

A carrier receiving goods marked for delivery beyond the end of his line is, in the absence of a special agreement, only responsible for safe carriage over his line and safe delivery to the next carrier.

When several independent carriers successively receive goods for carriage, each is entitled to demand payment in advance or to a lien on the goods for the carriage price.

In such cases cach road is by mercantile custom entitled to pay the back charges and to a lien on the goods for such charges, and for its own carriage price.

If goods received from a prior carrier are apparently in good order, a carrier is not obliged to open the packages for further examination, but has, for the back charges paid, a lien on the goods.

After some parcels had been delivered to the consignees by the P. and W. R. R. Co. and found damaged they directed the Co. to receive no more parcels of the lot.

Held, that after such direction the company had no authority to receive the other parcels or to pay any back freight upon them.

ASSUMPSIT. Heard by the court, jury trial being waived.
Benjamin N. Lapham, for plaintiffs.

Edwin Metcalf, for defendants.

POTTER, J.-This is an action to recover back certain money paid to the Providence and Worcester Railroad Company for freight and back charges on cotton, or rather to recoup damages which the plaintiffs claim amounted to more than the freight.

The cotton was sent December, 1880, and January, 1881, from Shreveport, Louisiana, by the Waxahachie Tap Railroad Company and its connecting lines to the plaintiffs at Providence, R. I., and the bill of lading so expresses. The bill of lading also contains conditions in print that the liability of that railroad company shall cease upon delivery to its next connecting line, and that that railroad company and its connections shall not be responsible for any old or concealed damage, etc., etc., which conditions the shipper

assents to.

When it was received by the owners at Providence, it was found to be wet, and, as the plaintiffs claim, badly damaged. The cotton had come through without change of cars. On two of the waybills, but relating to the same lot, is an entry that the cotton is very wet and appears to have been in water. Beyond that there is no evidence as to how or where the injury occurred.

One lot of cotton having arrived wet and damaged, the plaintiffs notified the Worcester Railroad Company by letter that they should not receive any more.

It is testified on the part of the defendants, and there is no evidence to the contrary, that the defendants have no connection with any other railroad, and have agreed to no pro rata rates, but fix their own rates independently of any other road.

It is claimed, as we understand, on the part of the plaintiffs, that as the first carrier received the cotton to be delivered at Providence, R. I., no freight was due until it arrived in Providence; and therefore if the Providence and Worcester Railroad Company paid any back freight on receiving it, it was in their own wrong, and they must bear the consequences.

Upon the question whether the fact of a carrier taking a parcel marked to a place beyond his own line, amounts to a contract to be responsible for its safe delivery at its destination, there has been quite a conflict of authority. The true rule seems to be that when a carrier receives goods marked to a place beyond the terminus of his own line, without more, or without any further or special contract, he is only liable to carry safely to the end of his own route and deliver to the next carrier on the usual route. St. Louis Insurance Co. v. St. Louis, Vandalia, etc., R. R. Co., U. S. Supreme Court. See 24 Albany Law Journal, p. 514, issue of Dec. 24, 1881; also see cases stated in Lawson on Contracts of Carriers, 238; Schneider v. Evans, 25 Wis. 241, 256; Root v. The Great Western R. R. Co., 45 N. Y. 524; Illinois Central R. R. Co. v. Frankenberg, 54 Ill. 88; Nashua Lock Co. v. Worcester and Nashua R. R. Co., 48 N. H. 339; Gray v. Jackson & Co., 51 N. H. 1. But although if a carrier had made such a contract and to carry for a guaranteed rate, or guarantee that the whole freight should not exceed a specified rate or sum, he might himself be sued upon it, he could bind no other road; and each road, unless there was some agreement or partnership, could charge its own rates. Schneider v. Evans, 25 Wis. 241; Wells v. Thomas, 27 Mo. 17.

If there was an association of carriers between two points, by which the carrier at one end was authorized to contract for and bind all the others on the route, then the rule might apply that if pay for the whole route was not taken in advance, no freight could be due until it arrived safely at the end of the voyage. See Harp 7. The Grand Era, 1 Woods, 184.

But unless bound by some such agreement, every road has the

right to demand pay in advance; and if not in advance, to retain a lien for it. Each road would have a right to its own freight and would not be bound by any agreement made at Waxahachie, not even if the Waxahachie Tap Railroad Company had received the whole pay in advance.

As on such a line of roads, unconnected by any agreement, the owner would be obliged to have some one at the end of each road to pay the freight for him or otherwise have his goods detained under the lien, it has become the usage, founded on general convenience and necessity, for the next road to pay the back freight, and it is considered as the agent of the owner for that purpose, and the owner is supposed to know this usage. Schneider v. Evans, above cited; Bissel v. Price, 16 Ill. 408; Bowman v. Hilton, 11 Ohio, 303; Lee v. Salter, Lalor Supplement to Hill and Denio, 163; Elmore v. The Naugatuck R. R. Co., 23 Conn. 457, 482.

It is indeed laid down in Angell on Carriers, § 282, that a common carrier "is not entitled to freight until the contract for a complete delivery is performed," and this is continued in the last Boston edition, the 5th, A.D. 1877. This, if not taken in connection with SS 124 and 356, might mislead. Even a general ship, i.e., one which advertises for a particular voyage only and to take for that voyage the goods of any one who sends, could not be obliged to carry without prepayment if demanded. But when without prepayment they take goods on freight, the general law of obligations would require the performance of the contract on their part, at least so far as they could perform it, before they could claim compensation. When they offer to carry goods for all between certain termini on a certain route at more or less regular periods, they then become common carriers; and the right of common carriers whether by ship, railroad or other conveyance, to demand payment in advance, is well settled.

The apparent contradiction may be explained in part by the fact that payinent in advance was not in old times denominated freight, nor was the word used for land carriage as it now is. Freight was the reward or compensation for safe conveyance and delivery by ship, and was not earned until that was performed. It had certain incidents attached to it which did not attach to payments made in advance. Abbott on Shipping, *405, *406, 5th Amer. ed. by Perkins, 491, 494; Machlachlan on Shipping, 433, 421, 364; Maule & Pollock on Shipping, 238; 1 Parsons on Shipping, 210, 246, 248,

n. 2.

Were the defendants in the present case justified in paying the back freight? Ordinarily and without notice, and exercising a prudent care as to the condition of the goods, we have no doubt they were. The usage is too well settled, and has become a part of the common commercial law, and they have the same lien for it hich they have for their own. Each carrier who pays the back