Tyler & Apperson v. Hamilton, &c.

that they were seeking to annul it. They did, however, anticipate that they might not produce it, and therefore asked that a copy of it be held sufficient. The purpose of the action was to enjoin the institution of suits against them by Tyler & Apperson. Therefore the injunction

was not ancillary. It was the relief sought, and, in our opinion, they are not entitled to recover attorney fees. For the same reason they are not entitled to recover attorney fees they are not entitled to recover the extraordinary expenses incurred in defending the action. The defendants gave notice to the plaintiffs that they would confess judgment for $100. The offer was never accepted, and subsequently the court sustained a demurrer to the peti tion, and dismissed it, and from that judgment this appeal is prosecuted. It is here urged that the court erred in not rendering judgment for the $100. We do not agree with counsel in this. If the defendants did not owe any of the claims in suit, as, in the opinion of the court below (and of this court) they did not, it was not prejudicial to the rights of the plaintiffs to adjudge they were not entitled to recover. Section 640, Civ. Code Prac., reads as follows: "After an action for the recovery of money is brought, the defendant may offer, in court, to confess judgment for part of the amount claimed or part of the causes involved in the action. Whereupon, if the plaintiff, being present, refuse to accept such confession of judgment in full of his demands; or, having had reasonable notice that the offer would be made, of its amount, and of the time of making it, fail to attend, and on the trial do not recover more than was so offered to be confessed, such plaintiff shall pay all the costs of the defendant incurred after the offer. The offer shall not be deemed to be an admission of the cause of action or amount to which the plaintiff is entitled, nor

Caye v. Pool's Assignee.

be given in evidence upon the trial." This expressly provides that the offer to confess judgment shall not be deemed to be an admission of the cause of action or amount to which the plaintiff is entitled, nor be given in evidence upon the trial. It simply has the effect of making the plaintiff pay all costs incurred after the offer is made in the manner required in the Code of Practice, provided he fails to recover more than the amount for which defendant offered to confess judgment. The judgment is affirmed.

CASE 15-ACTION TO ENFORCE A CARRIER'S LIEN-MARCH 17.

Caye v. Pool's Assignee.

APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.

JUDGMENT FOR DEFENDANT.

PLAINTIFF APPEALS. REVERSED.

TRANSFER COMPANIES-LIEN FOR CHARGES-DELIVERY OF POSSESSION
TO ASSIGNEE FOR CREDITORS.

Held: 1. A person engaged in the business of carrying freight by wagons from depots to other places, and of delivering packages for all persons who choose to employ him, is a common carrier. 2. Such a common carrier has a lien upon the goods for charges for hauling, and also for freight charges advanced to a railroad company for the consignee.

3. The rule that the carrier loses his lien by parting with possession of the goods does not apply where the person with whom the contract was made makes an assignment for the benefit of his creditors, and possession is delivered to his assignee, as the assignee takes for the benefit of all creditors according to their respective interests, and the lien of the carrier attaches to the money collected by the assignee on the assignor's contract, in performance of which the assigne delivered the goods to another.

NEWTON G. ROGERS FOR APPELLANT.

(No brief in record.)

Caye v. Pool's Assignee.

R. C. KINKEAD FOR APPELLEE.

1. Plaintiff shows by his petition that he is an individual, using a corporate name, a drayman hauling freight from the depot in Louisville to his customers, and can not be a common carrier iu the meaning of the law.

2. He can not be subrogated to the rights of the railroad company, and thereby acquire a lien upon the goods he hauls for the charges.

OPINION BY JUDGE PAYNTER REVERSING.

On demurrer, the averments of the petition are taken as true, which are to the effect that the appellant, Caye was carrying on business in Louisville, Ky., under the name and style of "Van Dyke Transfer Company"; that his business was to transport freight from depots to places, and deliver packages through the city at various points, and for that purpose he had a large number of horses and mules, transfer wagons, drivers, etc.; that he is a common carrier. It is further averred that it was his practice in his business to advance freight for various people upon goods consigned to them, and deliver them, and collect the money so advanced, as well as money for transporting the same; that he advances such transfer charges to the railroads which may have transported the freight, etc. He avers that he had been doing business for John S. Pool as such common carrier; that it had been his practice to advance freight for him, and upon the full delivery of freight, Pool would pay for the deliveries, and also the amounts advanced by him. It is averred that prior to June 24, 1896, Pool had a contract with the estate of De Haven for the building and transporting of a granite monument of large dimensions; that it had been transported from Massachusetts by rail to Louisville; that the plaintiff had been hauling parts of the monument from the depot to Cave Hill Cemetery for the purpose of its

Caye v. Pool's Assignee.

erection; that on June 24, 1896, he had advanced to Pool by paying freight against the monument $209.04, and his bill for hauling was $115, making a total of $324.04; that on June 24, 1896, when Pool made an assignment for the benefit of his creditors, he had in his possession a considerable portion of the monument, of the value of $800 or $900; that he had no notice that the assignment was made until the whole of the monument was delivered.

We

The court sustained a demurrer to the petition. are of the opinion that it states a cause of action. The appellant was a common carrier. He was engaged in the business of transporting chattels for all persons who chose to employ and remunerate him therefor. Owners of stages, stage wagons, railroad cars, teamsters, cartmen, draymen, and porters are common carriers. Black, Law Dict.; 2 Kent, Comm. 597. 1 Bouv. Law Dict. p. 299, says that "stagecoach proprietors, railway companies, truckmen, wagoners and teamsters, carmen and porters," etc., are common carriers; and cites Story on Bailments and Kent's Commentaries to sustain the designation which he makes as to who are common carriers. The appellant had in his possession part of the monument, of the value of $800 or $900, at the time the assignment was made, and held a lien upon it for the amount of his charges, and the assignment made by Pool for the benefit of creditors could not deprive him of that lien. The trust estate received the full benefit of plaintiff's claim for hauling and the freight advanced, and also had the benefit of that part of the monument which was delivered at the time of the assignment. Plaintiff's lien followed the fund arising from the collection of the money on the monument contract in the hands of the assignee, and he is entitled to be paid out of it the amount ascertained to be due him.

Carse v. Baxter's Trustea.

A carrier has a lien upon goods and right of detention until the freight is paid. If he parts with the possession out of the hands of himself and his agent, he loses his lien upon the goods, and can not afterwards reclaim them. Boggs v. Martin, 13 B. Mon. 243. When these goods were assigned, they were not only for the general creditors of Pool, but for those who held liens upon the property assigned, so the assignee received the estate to be distributed according to the rights of the parties. He was acting in the trust capacity, and one of the beneficiaries of the trust was the appellant; so the delivery of the possession of the property to the assignee was for the benefit of all of Pool's creditors, including appellant, according to their respective interests. The judgment is reversed for proceedings consistent with this opinion.

CASE 16-ACTION UPON AN ATTACHMENT BOND-MARCH 17.

Carse v. Baxter's Trustee

APPEAL FROM MADISON CIRCUIT COURT.

JUDGMENT FOR PLAINTIFF. DEFENDANT APPEALS.

REVERSED.

ESTOPPEL TO CONTROVERT GROUNDS OF ATTACHMENT DAMAGES ON BOND EFFECT OF PRIOR LEVY.

Held: 1. While the admission by the defendant of the truth of the grounds for an attachment, made both in his answer and upon the trial of the attachment, would have been admissible to estop him from contesting an attachment subsequently issued in favor of another creditor on the same grounds, yet after the second attachment has been discharged such admission will not of itself defeat an action on the bond executed for that attachment.

2. Damages can not be recovered for the levy of an attachment upon a stock of goods, where a prior attachment had been levied thereon, and the entire stock was in possession of the sheriff under