#### JOHN F. HERRING v. WILLIAM R. UTLEY.

Where, in an action, against the owner of a dray in the town of Wilmington, brought to recover the value of a trunk lost from the defendant’s dray, it was sought to charge the defendant as a common carrier, it was held competent for tk'e plaintiff to prove that it was the duty of draymen in Wilmington to 'Carry baggage.

Whether the -owner of a lost trunk can be admitted to prove, by his own oath, the 'Contents of a trunk lost. Quere ?

This Was an action on the case, against the defendant as a ■common carrier, to recover damages for the loss of the plaintiff’s trunk, tried before French, J., at Fall Term, 1860, of New Hanover Superior Court.

It was in evidence that the defendant had two licensed drays in the town of Wilmington, and one unlicensed dray. It was 'further in evidence that plaintiff asked defendant what he was going to do about his trunk which was lost out of his dray; that defendant said he was willing to pay him $10.00, and that the offer was rejected by the plaintiff.

Plaintiff offered to prove that it was the duty of draymen in Wilmington, to carry baggage. Defendant objected to this testimony, and the Court sustained the objection. Plaintiff excepted.

The counsel for the defendant then offered to introduce the plaintiff to prove the contents of the trunk. Defendant objected. The objection was sustained by the Court. Plaintiff ex*cep ted.

The Court having intimated the opinion that there was no *271evidence to charge tire defendant as a common carrier, plaintiff submitted to a nonsuit and appealed.

Baker for the plaintiff.

Strange, for the defendant.

Manly, J.

Without deciding, at present, the other question of evidence appearing -upon the record, there is one which was erroneously ruled below, and upon which plaintiff is entitled to a venire de novo.

It was proposed on the part of the plaintiff to prove that it was the d'uty of draymen, in Wilmington, to carry l>aggage. It is not stated how it was to be proved, but supposing it to be by competent testimony, it was certainly pertinent and proper.

The case states as a fact, that defendant had three drays in the town, two licensed and one unlicensed, and there was evidence tending to show that plaintiff’s baggage had been lost from some dray of defendant. It was the point, therefore, in the cause, whether drays, licensed or unlicensed, in Wilmingting, are accustomed to carry baggage, or hold themselves out as common carriers of the same. If accustomed to carry, it was their duty, and if their duty, they are common carriers, and subject to the responsibility of that class of public servants.

By the term baggage, used in the case, we understand the ordinary outfit of a trunk or bag or both, of a traveller, as distinguished from sacks, bales, casks and boxes of produce and merchandise, appertaining to the trade of the town. It is possible that draymen may be used as common carriers in one of these departments of service only, or in both. These are proper subjects for proof.

Our attention has been directed to the statement that two of the defendant’s drays were licensed. We are not informed what is the purport of the license spoken of, and are unable, therefore, to see the full significance of the statement. If the license be to carry for the public, on the streets of Wilming*272ton, it would seem to present, then, a question whether th.eir range of duties was. restricted or unrestricted, as already suggested.

With respect to the other question of evidence, as to the-competency of plaintiff to prove the contents of his trunk, we prefer not to decide it,'except it come necessarily into judgment. It is a new and important application of a principle, viz, of evidence from a party, made proper, ex necessitate, and ought to be engrafted upon the jurisprudence of the State, if at all, by the courts after fall consideration..

Per Curiam,

Judgment reversed, and a venire de novo..