he had plowed Baker's field, or done work on his house, under similar circumstances. See Davis v. School-dist. No. 2, 24 Me. 349, 351; Day v. Caton, 119 Mass. 513.

The judgment must be affirmed.

(13 Or. 352)

HONEYMAN. OREGON & C. R. Co.

Filed April 13, 1886.

CARRIERS-PRIVATE CARRIAGE OF DOGS-ACTION FOR Death.

A common carrier who does not assume to act as such in the carriage of dogs, but upon the request of a party consents to carry a dog on a particular occasion, cannot be sued as a common carrier for the subsequent death of the dog while under his charge, even though money may have passed to defendant's agent for the carriage. The action must be upon a private contract, if recovery is sought.

A. C. Emmons, for appellant.

E. C. Brounaugh, for respondent.

LORD, J. This is an action brought by the plaintiff against the defendant as a common carrier to recover damages for the alleged killing of a dog delivered to the defendant to be transported by its railway from Portland to North Yamhill. The complaint is in the usual form against common carriers, and the substance of the allegation is that, in consideration of the sum of two dollars, the defendant received of the plaintiff four dogs, to be safely conveyed by its railway from Portland to North Yamhill, but that the defendant so negligently conducted itself in carrying said dogs that one of them was injured, and thereafter died, to the damage of the plaintiff in the sum of $200. The answer of the defendant admits its incorporation, and that it is a common carrier, but denies all other material allegations of the complaint; and sets up as a separate defense, in substance, that it is not a common carrier of dogs, and that it is and was then contrary to the regulations of the defendant to carry dogs on its train for hire; that the plaintiff was a passenger on the defendant's train, and had in his possession four dogs, which he delivered to the baggage master, who charged him the said sum as his compensation for taking care of the dogs, but that none was charged or received by the defendant for the carrying or transporting of said dogs, and plaintiff, being so notified, delivered said dogs to the baggage master under such regulation and understanding. Issue being taken by the reply, a jury was impaneled and sworn, and, after hearing the evidence of the plaintiff, the defendant moved the court for a nonsuit upon the ground that the plaintiff had failed to prove a cause sufficient to be submitted to the jury. The motion for nonsuit was allowed, and judgment was rendered against the plaintiff, from which this appeal was taken.

A common carrier is one who undertakes, for hire or reward, to transport the goods of those who choose to employ him, from place

to place. Story, Bailm. § 495; Lawson, Cont. §§ 1, 2; Kent, Comm. 598; 1 Smith, Lead. Cas. Mar. 312. At common law a common carrier was bound absolutely to safely convey all goods intrusted to his care. "He hath his hire," says Lord COKE, "and thereby implicitly undertaketh the safe delivery of the goods delivered to him," (Co. Litt. 89a;) and in default of this, the carrier is liable and bound to answer for whatever loss or injury may happen to such goods, unless occasioned by the act of God, the public enemy, or the fault or misconduct of the plaintiff. 1 Smith, Lead. Cas. 315. See, also, Lawson, Com. Carr. § 3. He is regarded as an insurer of the property committed to his charge, which "results from the law applied to a particular relationship, and not from a special contract to insure." In the celebrated case of Coggs v. Bernard, HOLT, C. J., said: "This is a political establishment, contrived by the policy of the law for the safety of all persons the necessity of whose affairs obliges them to trust these sort of persons, that they may be safe in their way of dealing." 2 Ld. Raym. 918.

As such a common carrier's employment is public, and necessarily involves the performance of public duties, his duty to carry safely the goods or property intrusted to his charge is an obligation imposed upon him by law. "This is an action," said HOLROYD, J., "against a person who, by the ancient law, held, as it were, a public office, and was bound to the public. This action is founded on the obligation of the law." Ansell v. Waterhouse, 2 Chit. 1; Forward v. Pittard, 1 Term R. 27. In consequence of this obligation to transport safely which the law imposes, the burden of proof rests on the carrier to relieve or excuse himself from liability whenever a loss or injury happens. It is sufficient for the plaintiff to prove that the defendant received the goods and failed to deliver them safely. When this is done, a prima facie case of negligence or misconduct is established against the defendant. The complaint of the plaintiff charges the defendant in his capacity as a common carrier, and the contention of counsel for the plaintiff is that, upon the facts as disclosed by the record a prima facie case of negligence or misconduct was made out which re uired an explanation from the defendant to exempt itself from liability. He bases his argument upon the ground that the liability of a common carrier, at common law, for the delivery of live animals, is the same as that for the delivery of other property, unless modified by special agreement.

In some of the states-notably Michigan-the carriers of live-stock are not regarded as common carriers unless they have expressly assumed the responsibilities of common carriers by special contract. Michigan Southern & N. I. R. Co. v. McDonough, 21 Mich. 165; Lake Shore, etc., R. Co. v. Perkins, 25 Mich. 329; Rorer, R. R. 1300– 1309. "But in most of the states," says Mr. Lawson, "the carriers of living animals are held to be common carriers, and to be insurers to the same extent as if engaged in carrying general merchandise,

subject to explanation as to loss or damage caused by animals to themselves and to each other." Laws. Cont. 17, and note of authorities. There is no doubt that there is some controversy in the judicial mind whether, in the conveyance of live-stock, the duties and liabilities of the common law attach to the carrier, or whether the carrier, in the absence of a special contract, is to be regarded as the bailee or special agent for the transportation of such property, bound only to furnish suitable and safe carriage and motive power, and liable only for defects in these. For the authorities upon this subject, see Whart. Neg. §§ 615-621. But, for the purpose of this case, we shall assume that when the carrier undertakes the transportation of live-stock he assumes the obligation to deliver them safely against all contingencies, except such as would excuse the non-delivery of the property, and that, unless modified by special contract, his duties. and liabilities as common carrier for the delivery of such live-stock are the same as those which the common law attaches to the delivery of other goods or merchandise. Kimball v. Railroad Co., 26 Vt. 247; Squire v. New York Cent. R. Co., 98 Mass. 239; Smith v. New Haven & N. R. Co., 12 Allen, 531; Kansas Ry. Co. v. Nichols, 9 Kan. 235. Yet it is not perceived how, upon the record made in this case, it can avail the plaintiff. The evidence submitted and included in the bill of exceptions does not prove the duty or undertaking as alleged. The facts disclose that the defendant did not hold itself out as a common. carrier of dogs, or assume their transportation in that character, but that the defendant expressly refused to accept hire and furnish tickets for their transportation. The evidence shows that when the party having in charge the dogs applied to the ticket agent of the defendant for transportation for himself and dogs that the agent refused tickets for the dogs, and referred him to the baggage master, who told him: "You know the rules about dogs;" but, as an accommodation, consented to take the dogs in his car, and promised to look after them, for which he received two dollars. These circumstances do not show that it was the business of the defendant to carry dogs, or to receive pay for their transportation, but that, as a matter of accommodation to a passenger, it permitted the baggage master, after the party was notified of the rules, to carry them in his car, and to accept pay for his care of them.

It is true, as Mr. Justice BRADLY said: "A common carrier may, undoubtedly, become a private carrier, or a bailee for hire, when, as a matter of accommodation, or special engagement, he undertakes to carry something which it is not his business to carry." Railroad Co. v. Lockwood, 17 Wall. 357. Even in this view, if the arrangement, under the circumstances, made with the baggage master, may be construed to have any binding effect upon the defendant, the defendant can only be charged as a private carrier, or bailee, who undertook to carry what the facts show was not its business to carry, as a matter of accommodation, under a special arrangement. In such a case,

as ISHAM, J., said, "the relation is changed from a common carrier to a private carrier, and when such is the effect of the special agreement, they are not liable as common carriers; neither can they be declared against as such. It is possible there has been a breach of that express contract, and the plaintiff is, perhaps, entitled to damages for the injuries he has sustained; but the action should have been brought on that contract, or for a breach of duty arising out of it, and not on the duty and obligation imposed on common carriers." Kimball v. Rutland R. Co., 26 Vt. 249. The complaint must set out the facts of the undertaking or duty as it is. A plaintiff cannot declare upon one undertaking, duty, or obligation, and recover upon another. So that in any view of the facts, as presented by this record, there would seem to be no error, and the judgment must be affirmed.

(13 Or. 358)

GERDES and others v. SEARS.

Filed April 13, 1886.

SHERIFF-FAILURE IN DUTY-RETURN OF ATTACHMENT-ACTION.

A sheriff is liable in damages to a party aggrieved by his failure in official duty by not returning an attachment.

F. V. Drake, for appellants.
Raleigh Stott, for respondent.

BY THE COURT. The appellants commenced an action in the court below against the respondent for an alleged breach of official duty as sheriff of said county. In their complaint therein filed they set forth that theretofore they commenced an action in said circuit court against one T. W. Stapleton, to recover a judgment against him for $336.45, and procured to be issued therein a writ of attachment against the property of the said Stapleton, which was duly delivered to the respondent, as such sheriff, for service; that at the time said Stapleton owned and possessed personal property in said county, not exempt from execution, and subject to levy under said writ, sufficient to fully satisfy such demand; that said respondent as such sheriff, under and by virtue thereof, did seize, levy upon, and take into his possession personal property of said Stapleton sufficient to satisfy the demand; that such proceedings were thereafter had in said action that a judgment was recovered in said court in their favor, and against the said Stapleton, for said sum of $336.45, and costs; and that said judgment, among other things, directed and ordered the property attached to be sold, and the proceeds thereof to be applied to the satisfaction of said judgment; that after the levy of attachment by the respondent the appellants frequently made request to the respondent that he return said writ, with the proceedings indorsed thereon, to the clerk of the said court, together with an inventory of the property so attached, which he neglected and refused to do, and subsequently

delivered the writ over to his successor in office without any indorsement or certificate of his proceedings thereunder; and at all times has failed, neglected, and refused, and did still fail, neglect, and refuse, to make an assignment or delivery of any part of the property so levied upon by him under the said writ; that an execution had been issued upon their said judgment, and returned unsatisfied, except as to $31.80; that by reason of the said neglect and default of the respondent, the appellants had been deprived of means to obtain judgment, or satisfaction of their said judgment, to their damage in the sum of $347.15; for which sum they demanded judgment against the respondent. The respondent filed an answer to the complaint, controverting the material allegations alleged therein, and the issues so made came on for trial by jury.

The appellants attempted to prove facts to maintain the issues upon their part, but were not allowed to do so by the court, upon the ground, as we understand, that the appellants' judgment and order of sale did not describe the property to be sold with sufficient certainty, and that this was a waiver of the lien of attachment. We are unable to agree with the circuit court in this view. The gist of the action was the alleged violation of the respondent's official duty as sheriff, whereby the appellants claim to have been injured. The imperfect description of the property attached, in the judgment and order of sale, may have been occasioned by the neglect of the respondent to return the writ of attachment. His counsel contends that he was not compelled to return the writ when requested by the appellants; but this we do not know. Whether he was or not depended upon whether it had been executed. The statute provides that the writ shall be directed to the sheriff of any county in which property of the defendant may be, and shall require him to attach and safely keep all the property of such defendant within his county not exempt from execution, or so much thereof as shall be sufficient to satisfy the plaintiff's demand. Civil Code, § 145. Section 147 of the Civil Code provides that the sheriff to whom the writ is directed and delivered shall execute the same without delay as follows: Real property shall be attached by leaving with the occupant thereof, or if there be no occupant, in a conspicuous place thereon, a copy of the writ, certified by the sheriff. Personal property capable of manual delivery to the sheriff, and not in the possession of a third person, shall be attached by taking it into his custody, and other personal property by leaving a certified copy of the writ, and a notice specifying the property attached, with the person having the possession of the same, etc. And section 160 provides that when the writ of attachment shall be fully executed or discharged, the sheriff shall return the same, with his proceedings indorsed thereon, to the clerk of the court where the action was commenced.

It necessarily follows from these several provisions of the statute that it is the duty of the sheriff, in such a case, to execute a writ of at