The opinion of the Court was delivered by
Rogers, J.The facts and principles which govern the case are accurately stated by Mr. Justice Grier, and we affirm the judgment for the reasons given in the charge. In answer, however, to one remark, I must be permitted to say, that it is by no means clear that where a consignee neglects or-refuses to receive goods consigned to him, without cause, the owner is without remedy; for I must dissent from the position that a consignee is not bound ordinarily to receive goods consigned to him. Has a consignee a right arbitrarily to refuse a consignment by a distant owner, who trusts to his implied engagement with the public that he will be vigilant and careful in forwarding goods entrusted to his care? A cumulative remedy' is no anomaly in the law; and the safety of our internal trade, which is becoming of such immense importance, requires a strict accountability from consignees as well as carriers; and can it be tolerated that agents who are indispensably connected with it, may at pleasure shrink from a responsibility which they have voluntarily assumed, and which the commercial world have aright to suppose they will faithfully and diligently perform? In the case in hand, it is admitted that the owner has lost his property from the default of the carrier or consignee, or both; and justice and fair dealing require that his remedy should not be even doubtful. It will not do, where the exigency of the case requires it, to allow consignee or carrier respectively to shift the responsibility from themselves on the shoulders of the other. Thus, in this case, if the.owner had brought suit against the consignee, he would be met by the defence that the carrier was liable; and between these conflicting interests the injured party would have no* *67redress whatever. BiA, be this as it may, the carrier in the first place is answerable to the owner, and he can only discharge himself from liability by the most clear and decisive proof of an actual delivery to the consignee. An offer to deliver, as is held in Ostrander v. Brown, (15 Johns. 42), does not relieve him from the care and custody of goods which he has under his charge.
The testimony was properly excluded, because, as is truly said, the objection assumes the matter in issue, viz., which was liable, the consignee or the carrier. Besides, the liability of the consignee is contingent, which forms no objection to the competency of his testimony.
Judgment affirmed.