42 Vt. 441 | Vt. | 1869
The only question is whether the action of replevin may be maintained in the case made by the plaintiff’s evidence, in substance as follows: The defendants, as common carriers, transported grain and flour from Detroit to Island Pond, for which the charge, at the established rates, was $238. The defendant paid at Detroit, towards the' purchase money for the
I only mention one, viz.: the impolicy, and in some cases the exposure to loss, of compelling the freighter to pay the demanded freight, and trust to the responsibility of the carrier at the end of a lawsuit for the damage sustained by him through the fault of the carrier in the transportation for which he has claimed and been paid the freight. When the carrier sues for his freight, he gets all he is entitled to from the freighter, when he is made to allow as against his claim such damage as his own fault has caused to the freighter. No question of lien is involved in such a case.
The same reasons, grounded on principles, and arising from convenience, seem to justify the action of replevin in cases like the present. The question of the carrier’s right to freight, and of liability for damage, can as well be tried in this action as in any other mode of suit or procedure. The defendant is subject to no peril of losing any security he may have had by virtue of his lien on the property, for he has not yielded his lien, and the replevin bond has become substituted for the property itself. The property has thus been put to the uses designed, and the defendant is secured for all the rights he had in respect to the freight, as fully as if he had retained custody of the property itself.
As to the $48.92 advanced and paid by the defendants toward the purchase of the goods, this was paid without request of the plaintiff, and by reason of the party of whom the plaintiff purchased, putting in, to make out a full car-load, more grain than the plaintiff sent money to pay for.
As the defendants asserted their right to hold all the property until this sum, as well as the freight, should be paid, without designating any particular part or portion which they claimed to hold, either as their Dwn property or by way of lien, and as the
Judgment of county court is reversed, and the cause remanded.