By the Court,
Sutherland, J.It appears to be well settled, thata warehouseman, or depositary of goods for hire,is responsible only for ordinary care, and js not liable for loss arising from accident when he is not in default; 2 Kent’s Comm. 441; 4 T. R. 481; Peake’s N. P. 114; 4 Esp.N. P. R. 262; and in Finucane v. Small, 1 Esp. N. P. R. 315, it was held that if goods be bailed to be kept for hire, if the compensation be for house-room, and not a reward for care and diligence, the bailee is only bound to take the same care of the goods as of his own, and if they be stolen or embezzled by his servant, without gross negligence on his part, he is not liable ; and 1 the onus of shewing negligence seems to be upon the plain- ' tiff, unless there is a total default in delivering or accounting for the goods. 7 Cowen, 500, note a. and cases there cited. 3 Taunt. 264. 5 Barn. & Cres. 322. 1 H. Black. 298. Jones on Bailment, 106, n. 40. 2 Salk. 655. 1 T. R. 33. The defendant’s claim for storage, therefore, is not prejudiced by the fact that a portion of the goods had been purloined or embezzled by the store-keeper or servant.
The defendants had a lien on the whole and every part of the hemp for their storage of the whole ; it was but one parcel ; the whole was deposited with them at the same time ; it was but one transaction. It is admitted that the defendants might have refused to deliver any portion of the hemp until their storage for that particular portion was paid; but having parted with all but six and a half tons, it is contended that they have no right to retain that for their charges in relation to the other portions. This cannot be ; it would be found most inconvenient in practice. Restricting the lien to services rendered in relation to the whole quantity deposited at the same time, it becomes a just and reasonable rule, giving effect undoubtedly to the actual intentions and understanding of the parties, and promoting the convenience of trade and business. 2 Kent’s Comm. 495, 6.
New trial granted.