QJorttf U Ham 0rljool Hihtaty Cornell University Library KF 560.G77 1905 V.I Select cases and other authorities on th 3 1924 020 060 756 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020060756 SELECT CASES AND OTHER AUTHORITIES ON THE LAW OF PROPERTY. SELECT CASES A2TD OTHER AUTHORITIES ON THE LAW OF PROPERTY. BY JOHN CHIPMAN GRAY, BOTALL PROFESSOR OP LAW IN HARVARD UNIVERSITY. VOLUME I. SECOND EDITION. CAMBRIDGE : CHARLES W. SEVER AND COMPANY. 1905. Copyright, 1905, By John Chipman Gkat. UmVEESiTT Pbess: JoHH Wilson and Son, Cambbidge, D. S. A. PREFACE TO THE SECOND EDITION. The experience of the seventeen years since the publication of the first two volumes has convinced me that they contain more cases than can be satisfactorily treated in a single course of lec- tures. It has also confirmed my opinion that a collection of cases should not attehipt to cover too much ground, but that the cases should be multiplied on the crucial topics. A single case on a subject has little advantage over a text-book. It is only by pre- senting a doctrine in many aspects that the best results can be reached. I have tried to bear both these points in mind in the present edition, in which about two hundred pages have been stricken out, and one hundred added, in each of the two volumes. To my colleague. Professor J. I. Westengard, I am indebted for collecting the cases reported since the first edition, and for constant advice and assistance in selection and arrangement. He has also contributed several valuable notes. I would especially call attention to the note on Distress. If the present edition of these volumes is an improvement on the earlier one, it is largely due to him. I have also to thank my learned friend, Robert Walcott, Esquire, for seeing the volumes through the press. PREFACE. This Collection of Cases is prepared for the convenience of students in the Law School of Harvard University. The head-notes are always, and the arguments generally, omitted. As one of the main objects in the study of cases is to acquire skill and confidence in extracting the ratio decidendi, the omission of head-notes from a collection like this is an essential part of the scheme. To thrust before the eyes of a student of law the answer to the problem contained in a case is like telling a stu- dent in arithmetic the answer to his sum before he does it, with the additional disadvantage that the answer in the head-note is often wrong. On the other hand, the omission of the arguments is an evil, but a necessary one. To have retained them would either have compelled the exclusion of many valuable cases, or else have swollen the size and expense of volumes already larger and more costly than I could wish. With the exception of the head-notes and arguments, and of a few passages the omission of which is duly noted, the cases are reprinted literally from the reports ; but I have striven after some consistency in the use of capitals and italics, and where a citation was obviously wrong, I have corrected it. The book is intended for study, not for practice. That one who has carefully read these cases will find the volumes of con- siderable aid in after professional life, I have no doubt ; but by one who has not thus become acquainted with their contents, the want of head-notes will probably be felt an invincible obstacle to their use. VI 11 PEEFACE. Further, the reading of these cases, it should be remembered, is intended to be accompanied by oral instruction, and therefore they are without the comments which would, on so difficult a subject, be desirable, if the cases were meant for solitary study. As any one will find who attempts to compile a collection of cases, it is hard to make it small enough. I have tried to limit myself to the leading and illustrative authorities, and in the few notes no attempt has been made at a full collection of the decisions, — indeed, no case is ever referred to without a distinct reason for calling attention to it. A special difficulty in dealing with the law of property, and particularly of real property, is to determine how much to dwell on parts of the law which have now become practically obsolete. No two persons would probably decide this question in exactly the same way. I have endeavored to bear in mind, on the one hand, that a real knowledge of the law as it is, requires a knowl- edge of the law as it has been ; and, on the other, that I am working for men who are preparing themselves to be lawyers, and not merely for students of the history of institutions. For the parts of the law of which he treats and for which it was impossible or undesirable to give cases, I have had recourse to the terse and exact sentences of Littleton. I desire especially to acknowledge the aid I have received from Mr. Leake's Digest of the Law of Land. This excellent book (unfortunately not finished) has met with less appreciation than it deserves. J. C. G. AUG0ST, 1888. TABLE OF CONTENTS. Page TABLE OF CASES sv TABLE OF STATUTES xix BOOK I. DISTINCTION BETWEEN REAL AND PERSONAL PROPERTY 1 BOOK II. NATURE AND ACQUISITION OF RIGHTS IN PERSONAL PROPERTY CHAPTER I. Introductory. Suits for the Recovery of Personal Property 7 § 1. Detinue and Replevin 7 2. Bill in Equity 14 CHAPTER II. Acquisition of Rights not under Former Owner 16 § 1. Chattels having no Former Owner 16 2. Wreck 23 3. Waifs, Estrays, and Deodands 26 4. Judgments 28 5. Sale in Market-overt 33 6. Statute of Limitations 33 7. Accession 41 8. Confusion 78 A. Lawful or Accidental 78 B. Tortious 98 TABLE OF CONTENTS. CHAPTER III. Page Transfer of Rights in Personal Property 116 § 1. Satisfaction of Judgment 116 2. Gifts of Chattels 130 Note on Incorporeal Personal Property 145 CHAPTER rv. Possession 148 § 1. Bailment 148 A. Nature and Acquisition of Lien 148 B. Lien given by Person other than Owner, when good against Owner 168 C. Loss of Lien 189 D. Pledge 213 E. Actions of Bailor against Bailee 237 P. Actions of Bailor against Third Person 241 G. Actions of Bailee against Third Person 254 H. Measure of Damages in Action by Bailor or Bailee . 265 Note on Judicial Process 276 Note on Distress 277 2. Finding 280 A. Rights of Finder against Owner 280 B. Rights of Finder against Third Person 288 BOOK III. INTRODUCTION TO THE LAW OP REAL PROPERTY . . 307 CHAPTER I. Tenure 307 § 1. Tenure in General 307 2. Manors 309 3. Military Tenures and their Incidents 312 1. Services 312 2. Incidents 315 A. Aids 315 B. Relief and Primer Seisin 316 C. Wardship and Marriage 317 D. Fines for Alienation 320 E. Escheat 320 TABLE OP CONTENTS. XI Page § 4. Socage Tenure 321 1. Services 321 2. Tnoidents 323 3. Gavelkind 824 Note on Ancient Demesne 325 5. Frankalmoign 326 6. Abolition of Military Tenures 827 Note on Tenancy in Capite 329 Note on Tenure in the United States 330 CHAPTER II. Estates 332 § 1. Fee-simple 332 2. Fee-tail 334 Note on Warranty and on Fines and Recoveries .... 338 Note on Determinable and Base Fees 339 3. Estates for Life 340 4. Estates less than Freehold 342 5. Joint Ownership 343 6. Reversions and Remainders 346 CHAPTER III. Seisin and Convktance 348 § 1. Seisin 348 Note on Descent and Purchase 351 2. Livery of Seisin 352 3. Grant and Attornment 853 4. Release and Surrender 856 5. Devise 357 6. Disseisin and other Ouster, and Remedies 357 CHAPTER IV. Copyholds 364 CHAPTER V. Uses and Trusts 368 § 1. Uses before St. 27 Hen. VIII. c. 10 368 2. Statute of Uses 872 3. Uses raised on Transmutation of Possession 375 4. Uses raised without Transmutation of Possession 382 5. Limitation of Uses and Operation of the Statute 396 6. Uses not Executed by the Statute 410 XU TABLE OF CONTENTS. CHAPTER VI. Page Wills op Land 417 BOOK IV. NATURE AND INCIDENTS OF OWNERSHIP IN REAL PROPERTY 421 CHAPTER I. Gold and Silver Mines 421 CHAPTER II. Wild Animals 423 CHAPTER III. Title-deeds 425 CHAPTER IV. Fixtures 428 § 1. When Chattels become Fixtures 428 A. Annexation to One's Own Land 428 B. Annexation to Other's Land 468 2. Rights of Third Persons 479 3. Severance 526 4. Removal of Fixtures 583 A. What Fixtures are Removable ... .... 533 I. Between Landlord and Tenant 533 II. Between Life Tenant and Remainderman . . 555 III. Between Vendor and Vendee 559 B. Fixtures are not Chattels before Removal 562 C. Loss of Right to Remove 564 D. Transfer of Fixtures 585 CHAPTER V. Emblements 591 CHAPTER VI. Manure 614 TABLE OF CONTENTS. XIU CHAPTER VII. Page Waste 629 A. Nature and Kind of Waste 629 B. Remedies 675 1. At Law 675 2. In Equity 676 C. Equitable Waste 687 CHAPTER VIII. Border Trees .... 690 TABLE OF CASES. Ames v. Palmer Anon. (Fitz. Ab. Wast, pi. 30) (48 Edw. in. 20, pi. 8) (11 Hen. IV. 17, pi. 39) (5 Hen. VII. 15, pi. 6) (21 Hen. VII. 26, pi. 4) (2 Eq. Cas. Ab. 757) (Cro. El. 46) (Pop. 38, pi. 2) (2 Roll. R. 255) Armory v. Delamirie Armstrong v. Wolsey Astbury, Ex parte Barker v. Bates V. Keete Bateman v. Hotchkin Bevan v. Waters Bewick V. Whitfield Binstead v. Buck Bligh V. Brent Bloss V. Holman Boardman v. Sill Booth V. Wilson Bostwick V. Leach Bowles's Case Brackett v. Goddard Brewster v. Warner Bridges v. Hawkesworth Brinsmead v. Harrison British Empire Shipping Co. v. Broadwood v. Granara Broughton v. Langley Bryan v. Weems Bryant v. Wardell V, Ware Buckland v. Butterfleld Burton v, Hughes Buster v. Newkirk Caldwell v. Tutt Callard v. Callard Campbell v. Roddy Page Page 246 Carpenter v. Walker 460 629 Cartwright, Re 652 254 Castlemain v. Craven 679 265 Cave V. Cave 431 43 Chapman v. Allen 148 428 Chase v. Washburn 80 688 Chesley b. St. Clair 265 396 Claridge v. South, etc. Tramway Co 268 98 Clark V. Maloney 297 691 Clary v. Owen 492 288 Cochrane v. Moore 131 378 CoUamore v. Gillis 553 435 Collier v. Jenks 627 Cooper 1). Franklin 411 295 V. Woolfitt 603 389 678 n. Davenport v: Shants 494 157 Davis V. Eyton 696 678 Doe d. Lloyd v. Passlngham 412 280 Donald v. Suckling 219 3 Doty V. Gorham 645 237 Durfee v. Jones 299 191 Dustin 1). Crosby 559 256 589 Egerton's Case 402 636 Ellis Hartop's Case 418 608 Elwes V. Maw 534 266 289 Farkant v. Lovel 681 116 Fay V. Muzzey 624 Somes 165 Fears v. Sykes 37 171 Feder v. Van Winkle 463 377 Ferguson v. 646 33 Ford V. Cobb 485 238 105 Gent v. Harrison 682 539 Gibbs V. Estey 476 257 Gilson V. Gwinn 184 19 Gordon v. Harper 242 Graves v. Weld 699 208 Griffin V. Bixby 698 386 Griffith V. Fowler 29 502 Grymes v. Boweren 541 XVI TABLE OF CASES. Page Hall v. Pickard 246 Hallen v. Bunder 586 Halliday v. Holgate 232 Hamaker v. Blanchard 301 Hampton v. Brown 263 Hanna v. Phelps 204 Harrow School v. Alderton 645 Heelis v. Blain 404 Heme v. Bembow 647 Hesseltine v. Stockwell 102 Hobson V. Gorringe 509 Hoflfmann v. Armstrong 700 Holder v. Coates 691 Holland v. Hodgson 440 Honywood v. Honywood 649 Hooser v. Hays 606 Hughes V. Cornelius 28 Illinois R. & C. Co. v. Ogle 70 Irons V. Smallpiece 130 Jackson v. Cummins 159 Jacobs V. Latour 193 James v. Plank 90 Jenkins v. Steanka 108 Johnson v. Stear 213 Jones V. Pearle 189 Judaon v. Etheridge 157 Justice V. Nesquehonlng R. R. Co. 521 Keeler v. Eastman 657 King, The, v. Otley 433 Kruger v. Wilcox 149 Lancastbk v. Eve 468 Lassell v. Reed 614 Latham v. Atwood 593 Lawton v. Lawton 555 V. Salmon 431 Leathes v. Leathes 425 Ledyard v. Hibbard 86 Lewis V. McNatt 611 London Loan Co. u. Drake 569 Lotan V. Cross 245 Lutwich V. Milton 888 Lyman v. Hale 693 Market-Overt, Case of 33 M'Avoy V. Medina 298 M'Combie v. Davles 189 Mackintosh v. Trotter 562 Masters v. PoUie 690 Mennie v. Blake 8 Meux V. Cobley 655 Mexal V. Dearborn 207 Mildmay's Case 398 Miller v. Dell 39 Page Miller v. Hyde 120 Moore v. Townshend 663 Mulgrave v. Ogden 280 Mulliner v. Florence 199 Murphy v. Dunham 23 Natlor v. Mangles 151 Needham v. Allison 619 Nicholson v. Chapman 281 Noble V. Bosworth 446 V. Sylvester 530 Panton v. Isbam 644 Peacock v. Purvis 593 Peirce v. Goddard 448 Perrot v. Perrot 680 Phillips V. Jones 7 Pickering v. Moore 112 Poole's Case 533 Poole V. Symonds 259 Pugh V. Arton 571 Pulcifer v. Page 63 Pynchon v. Stearns 658 Richardson v. Copeland 483 Robins & Co. i>. Gray 176 Robinson v. Baker 181 V. "Walter 168 Roe V. Tranmer 391 Rogers v. Gilinger 526 Rooth V. Wilson 256 Rushforth v. Hadfield 154 Russell «. Richards 479 Ryder «. Hathaway 99 Same's Case 376 Sampson v. Grogan 669 Sanders v. Davis 574 Sawyer v. Twiss 621 Scarfe v. Morgan 194 Sharington v. Strotton 384 Sherbourne's, Abbot of. Case 557 Shoemaker v. Simpson 616 Shortridge v. Lamplugh 376 Shrewsbury's, Countess of, Case 635 Silsbury v. McCoon 44 Single 0. Schneider 57,59 Singer Mfg. Co. u. London R'y Co. 185 Smith V. Benson 472 V. Clark 78 V. Morrill 109 V. Price 607 119 Smyth V. Carter 647 Somerset v. Cookson 14 South Staffordshire Co. u. Sharman 304 Spencer's Case 592 TABLE OF OASES. XVll Squier v. Mayer Staples V. Emery State Savings Bank v. EerchsTal Steinman v. Wilkins Stillman v. Flenniken V. Hamer Stoughton V. Rappalo Strong V. Doyle Sutton V. Moody Swift V. Giflford Symson and Turner Taylor v. Tale Terhune v. Elberson Threfall v. Borwick Thresher v. Water Works Co. Tyrrel's Case Tyson v. Post Vane v. Barnard Van Ness v. Pacard Vaughen v. Haldeman Vinal V. SpofEord Voorhis v. Freeman 'age Page 430 Ward v. Ayre 98 617 V. Macauley 241 457 Warde v. Tuddingham 388 163 Washburn v. Sproat 471 499 Waterman v. Soper 691 474 Watriss v. First Bank 580 13 Weeton v. Woodcock 567 626 Wentworth v. Day 284 423 Wetherbee v. Green 62 19 Weymouth v. C. & N. W. R. R. Co. 54 411 Whipple V. Dutton 235 White V. Arndt 576 V. Gainer 191 385 Whitehead v. Bennett 542 605 Whitfield V. Bewit 676 173 Wilby V. Bower 241 564 Wilson V. Guyton 286 410 V. Martin 249 507 Winkfield, The 270 Winn V. Jngilby 433 Witham v. Brooner 408 687 Witt, In re 161 547 Wooden Ware Co. u. U. S. 74 454 210 Yelverton v. Yelverton 387 451 Young V. Hiohens 17 TABLE OF STATUTES. Page Magna Carta, cc. 2, 15 316 52 Hen. III. (Marlebridge) c. 23, § 2 629 3 Edw. I. (Westm. I.) c. 36 316 6 Edw. I. (Gloucester) c. 5 629 13 Edw. I. c. 1 {lie Bonis) 335 18 Edw. I. cc. 1, 3 {Quia Emptores) 308 1 Rich. III. c. 1 (Uses) 369 27 Hen. VIII. c. 10 (Uses) 372 c. 16 (Enrolments) 382 12 Car. II. c. 24 (Abolition of Military Tenures) 327 4 Anne, c. 16, § 9 355 SELECT CASES AND OTHER AUTHORITIES ON THE LAW OF PROPERTY. BOOK I. DISTINCTION BETWEEN REAL AND PERSONAL PROPERTY. Beacton, Lib. 2, c. 9, fol. 27 a. If a gift be made for a term of years, although a very long one, which exceeds the lives of men, yet the donee will not have a freehold from it, since a term of years is certain and determined, and the term of life uncertain, and because although nothing is more certain than death, yet nothing is more uncertain than the hour of death. Williams, Eeal Peopeett (18th ed.), 17, 25. Tenant for a term of years was regarded in early law as holding possession on behalf of the freeholder as his bailifif, and was never allowed to use the freeholder's remedies for dispossession. Originally he had no remedy in case of his ejectment, unless he held under a covenant with his landlord. If so, he might have an action of covenant against his landlord in case he had been ejected by the landlord himself or any one claiming the land by superior title ; and might recover, in the former case, possession of his holding for the rest of his term, if unexpired, but otherwise damages only. But afterwards special actions were given to a tenant for years against any person, who had wrongfully ousted him or acquired posses- sion of his land from a wrongful ejector. And though at first it was doubted whether these actions enabled him to recover anything but dam- ages, in the reign of Edward the Fourth it was established that he should therein recover possession of his holding as well. The owner of chattels might take proceedings, under the early law, to obtain the res- titution of stolen or lost goods, into whosesoever hands they came ; and in these proceedings he might either accuse the possessor of his goods of theft or sue him civilly, dropping the criminal charge. In the latter case, however, the plaintiff was obliged to set a money value on his goods, on payment of which the defendant would be absolved. But civil proceedings of this nature very soon became obsolete ; when the dis- 2 DISTINCTION BETWEEN EEAL AND PERSONAL PKOPBKTY. possessed owner of goods was left to be protected by remedies, in which he could either make no claim but for compensation in money, or in which, though he might claim to recover his goods, the law gave no process, whereby the goods themselves could be attached and restored to him, and he could only recover their value if the defendant refused to render them. . . . Originally, as we have seen, freeholds were the only things specifi- cally recoverable in the King's Court; all that could be included in " the realty." Thus the word realty came to be used as denoting the freehold. After this, those interests in land which were reckoned as chattels were distinguished by the name of chattels real, because, it was said, they concerned the realty ; while the name of chattels personal was given to movable goods, " because for the most part they belong to the person of a man, or else " (which seems the better reason) " for that they are to be recovered by personal actions." As freeholds de- scended to the heir, while chattels passed to the executor, the notion of descent to the heir became associated with the realty, as well as the idea of land specifically recoverable ; and the incident of passing to the ex- ecutor became a characteristic of the personalty. So that in later times, when men began to describe property as consisting of real and personal estate instead of by the old terms lands, tenements, and hereditaments and goods and chattels, only things inheritable as well as specifically recoverable, only real hereditaments, in fact, were classed as real estate ; and chattels, whether real or personal, were considered as personal estate rather on the ground of their passing to the executor than with reference to the question, how far they were specifically recoverable.^ 2 Bl. Com. 21. Incorporeal hereditaments are principally of ten sorts ; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.^ Lit. § 740. But where such lease or grant is made to a man and to his heires for terme of yeares, in this case the heire of the lessee or the grantee shall not after the death of the lessee or the grantee have that which is so let or granted, because it is a chattel reall, and chattels realls by the common law shall come to the executors of the grantee, or of the lessee, and not to the heire. 1 See also Digby, Hist. Real Prop. c. 3, sect. 2, § 17 (in 1st ed. § 16). 2 " The next question was, whether the annuity of 5001. which in the will is called a freehold annuity [an annuity to the grantee and his heirs], and is thereby specifically giren, is to be considered as real or personal ; and upon the authority of the cases which were cited in the argument, viz.. The Earl of Stafford v. Buckley, 2 Ves. Sen. 171, and Aubin v. Daly, 4 B. & Aid. 59, 1 am of opinion, that it is what Lord Hardwicke called a personal inheritance, which the law suffers to descend to the heir, but which has noth- ing to do with the realty." Per Losd Lanodale, M. B., in Badhim v. Jervis, 3 Bea?. 450,461 (1841). BLI6H V. BEENT. BLIGH V. BRENT. ExcHEQUEK. In Equity. 1837. [Reported 2 V. d- 0. Ex. 268.1] Aldeeson, B., delivered the judgment of the court: This was a bill praj-ing in substance that the defendant Margaret Brent, widow and executrix of Timothy' Brent, deceased, may account for certain shares of the Chelsea "Waterworks, and that it may be declared by the court that the plaintiff as his heir at law became entitled to those shares, and that the other defendants, the Governor and Company of the Chel- sea Waterworks, may be directed to insert in their transfer-books the plaintiff's name as proprietor thereof. There is no dispute as to the facts, and the only question for the court was, whether these shares were part of the real or personal estate of the testator. If the former, the plaintiff as heir at law is entitled to the decree he prays, because the will is attested by only two witnesses ; and if the latter, his bill must be dismissed. When this question originally came before me, I thought it one of so much difficulty, and involving such extensive consequences, that I was desirous the parties should have the benefit of having the opinion of my learned brethren also ; and accordingly, in conformity to the practice here (which is a peculiar advantage in the frame of the Court of Equity in the Exchequer), I adjourned the case to be heard before the full court. The case was, in the course of last Michaelmas Term, very fully and ably argued before Lord Abinger, my brothers Parke and Gurney, and myself; and I am now to deliver the opinion of the whole court on the point. The company of the Chelsea Waterworks was originally constituted under the provisions of the statute 8 Geo. I., 1723. By that act, cer- tain persons named therein were constituted commissioners, under- takers, and trustees for carrying into effect the works then projected, and for afterwards maintaining them. For that purpose his Majesty was, by a subsequent clause, empowered to incorporate them, by the name of the Governor and Company of the Chelsea Waterworks. And they were to have the power of purchasing lands not exceeding £1,000 per annum, and to sell and dispose thereof at their pleasure, and to do all necessary works, and to be subject to such rules, qualifications, and appointments as his Majesty should think reasonable to be inserted in the charter ; and might also be empowered to make by-laws from time to time for the good government of the corporation. In pursuance of this power a charter of incorporation was granted almost immediately afterwards by George I. That charter followed the directions of the statute, and gave the corporation power to pur- chase lands, &c., so as they did not exceed in value £1,000 per annum, 1 The opinion only is given. It sufficiently states the facts. * BLIGH V. BEENT. and also estates for life or lives, and for years, and goods and chattels of what nature or value soever, for the better carrying on and effecting the purposes of the companj-, not exceeding the value of the joint stock of the corporation thereinafter mentioned and limited, and to be taken and computed as part thereof. The twenty-third section empowered the corporation by subscription to raise a joint stock, not exceeding £40,000, and to manage the same from time to time, and to receive the benefit and advantage of the same to the use of them the said Governor and Company and their suc- cessors, according to such shares and proportions as they or any of them have or shall have therein. And then it provided that everj- person subscribing and contributing any sum or sums of money should, by virtue thereof, become members of the said corporation, and should be entitled to a share or shares in such joint stock (previously fixed at £20 each) equal to the sum or sums of money so by him actually contributed and paid in, and no greater ; and should be enabled to sell, assign, and transfer the same or any part thereof (not being less than one whole share, as by a subsequent clause was provided), by transfers in the company's books, in such manner as should be by a general court directed, or bj' his last wUl and testament ; and the person to whom such assignment or transfer, or disposition by last will and testament, should be made, should by virtue thereof become member of the said corporation. What, then, is the intention of the crown and legislature to be col- lected from all these particulars as to the nature of the interest which each shareholder is to have ? That is, in truth, the whole question in this cause. Now, in the first place, we have a corporation to whose management the joint stock of money subscribed by its individual cor- porators is intrusted. Thej- have power of vesting it at their pleasure in real estate or in personal estate, limited only as to amount, and of altering from time to time the species of property which they, may choose to hold ; and in order to give them greater facilities and advantages, certain powers are intrusted to the undertakers by the legislature, and that even before thej' were constituted a body corporate, of laj'ing down pipes, and thereby occupying land for the purposes of their undertaking. These powers render the use of joint stock by the body corporate more profitable, but they form no part of the joint stock itself ; and one de- cided test of this is, that they belong inalienably to the corporation, whereas all the joint stock is capable expressly of being sold, ex- changed, varied, or disposed of at the pleasure of the corporate body. It is of the greatest importance to look carefully at the nature of the property originally intrusted, and that of the body to whose manage- ment it is intrusted, — the powers that body has over it, and the purposes for which these powers are given. The property is money, — the sub- scriptions of individual corporators. In order to make that profitable, it is intrusted to a corporation who have an unlimited power of con- verting part of it into land, part into goods, and of changing and dis- BLIGH V. BRENT. 5 posing of each from time to time ; and the purpose of all this is the obtaining a clear surplus profit from the use and disposal of this capital for the individual contributors. It is this surplus profit alone which is divisible among the individual corporators. The land or the chattels are onlj' the instruments — and those varying and temporary instruments — whereby the joint stock of money is made to produce profit. Suppose the subscription had not been by the individual corporators, but that strangers, having collected the money, had put it into the management of a corporate body having particular privileges, and had, after giving them power to vest the money at their pleasure, stipulated to receive these profits : could it be contended that the nature of the property of the subscribers depended on the mode of management by the independent body ? And yet that is, in truth, this case ; for the individual members of a corporation are quite as distinct from the metaphysical body called " the corporation," as any others of his Majesty's subjects are. This case varies most materially from those which were cited in the argument. In the New River case, the individual corporators have the propertj' ; the corporation have only the management of it. Lord Hardwicke, in the case in Atkyns,'' expressly puts it on that ground. " They have the legal right," he says ; " they maj- bring an ejectment for so much land covered with water ; and the only difference between the shareholders of the king's half and the others is that the corpora- tion of management have as to these shares perhaps the legal estate in them, the equitable estate being in the individual proprietors." In that case, too, the property given to the corporation was real property, which thej- are to manage for the good of all. They have no powers of con- verting it into any other sort of property, but must keep it and make a profit from it as it is ; viz., as real property. The same observations apply to Buckeridge v. Ingram^ the Avon Navigation, with this addition, that there the undertakers do not appear to have been a corporation at all. And in both the shares are trans- fen-ed to the shareholders and their heirs. But here the case is wholly' different, — the property intrusted is money ; the corporation may do what they like with it, and may obtain their profit in any way they please from the employment of their capital stock. If they thought that they could with greater profit supply water by conveying it in carts or the like, they would have a perfect right so to do. It would be strange that the nature of these shares should continually fluctuate, and be sometimes real estate, and sometimes personal, according as the cor- poration in the course of their management should choose to hold real or personal property. Suppose a man made his will, attested by two per- sons, and at a time when the corporation held only personal estate. It is good. He becomes lunatic or is incapable from age, and then real property is bought by the corporation. Is his will to be set aside? And yet he cannot make another, 1 \Tmjmsend v. Ash, 3 Atk. 336.1 " [2 Ves. Jr. 652.] 6 BLIGH V. BEENT. Then, in what way has this property always been treated ? If we look to the wording of the charter, the language is much more suitable to personal than to real estate. Indeed, on the latter supposition it is verj' inaccurate. Again, the form of transfer appointed by the legisla- ture (for that which is done under the provisions of the charter is, in fact, done by the legislature, and is, indeed, subsequently recognized by it) is applicable to personal estate only. These shares are not transferred to A. B. and his heirs, but A. B., his executors, adminis- trators, and assigns ; and so they have always been. This form, indeed, may be considered as almost a contemporary exposition of the law on this point. Lastly, in Weekley v. Weekley ^ this point came expressly under the consideration of Sir Thomas Sewell, Master of the Kolls, and he decided that these shares were personal propertj'. Upon the whole, therefore, we think that the principles of law, the usage of the company, and the distinct authority of one decided case are suflScient to warrant us in coming to the conclusion that these shares are personal property. The result is, that the bUl must be dismissed, with costs. Decree accordingly. Mr. SimpJeinson, Mr. Oreswell, and Mr. Toller, for the plaintiff. The Attorney- General {Sir John Oamphell) , Mr. Boteler, and Mr. Prescott White, for the Governor and Company of the Chelsea Water- works. Mr. G. Michards and Mr. Stevens for the defendant Brent. 1 [2 Y. & C. Ex. 281, note.] Note. — So Jiussell v. Temple, 3 Dane, Ab. 108. In Connecticut, shares in turn- pike corporations, and in Kentucky, shares in railroad corporations, were once held to be real estate ; but in both States the law has now been changed by statute. PHILLIPS V. JONES. BOOK 11. NATURE AND ACQUISITION OF RIGHTS IN PERSONAL PROPERTY. CHAPTER I. IKTEODUCTOKY. SUITS FOR THE RECOVERY OF PERSONAL PROPERTY. Note. — The student cannot too soon observe the inseparable connection between substantive rights and the forms of remedies. In most suits which involve rights to personal property, only damages can be recovered. It seems desirable here to see when possession of the property itself may be obtained. SECTION I. DETINUB AND KEPLEVIN. PHILLIPS V. JONES. Queen's Bench. 1850. [Beported 15 Q. B. 859.] Parke, B.* We are of opinion that the judgment in the present form is erroneous. Upon referring to the precedents, it appears that the plaintiflE in detinue has a right to recover the goods in specie, and, in case of non-deliverj-, the value, and the option of giving up the goods or paying the value is in the defendant, who, by refusing to deliver the former, renders himself liable to pay the latter. It was so laid down by Frowike, C. J., Keilw. Rep. 64 b. He says, "that the judgment is, that the plaintiff shall recover the goods or the value ; then shall issue a writ to the sheriff to distrain the defendant to deliver the goods, and if he will not, then the value as it is taxed by the inquisition. And so 1 A part only of the opinion is given. 8 MENNIB V. BLAKE. it is in the election of the defendant to deliver to the plaintiff the goods or the value." And the same law is laid down in Yelv. 71 ; and in Peters v. Heyward, Cro. Jac. 682, it was held that the judgment must not give the sheriff an option to take one or the other, but the plaintiff must have judgment to recover the goods only, and, if they could not be had, the value. There appear to be two modes in the old books by which the value so to be recovered is to be ascertained ; one, by which the value is found by the jury who try the issue, in giving the verdict : East. Ent. 218 b, Detinew, pi. 9, Peters v. Heyward^ Cro. Jac. 682 ; and, if there were no issue to be tried, the jury who assess the dam- ages would find the value : the other, according to which the sheriff is directed to ascertain the value [by writ of inquiry, according to the au- thorities cited], if the defendant does not deliver up the goods : East. Ent. Detinew, 218 a, pi. 4, 218 b, pi. 5, 219 b, pi. 13; and, on the sheriff's return, judgment absolute would be given for the value ; Paler V. Hardyman, Yelv. 71. In the present case neither of these forms is adopted. The judgment does not ascertain the value, nor give any means of ascertaining it. The objection is the same as was held valid upon error in the last men- tioned case. MENNIE V. BLAKE. Queen's Bench. 1856. [EepoHed 6 K <& B. 842.] Eeplevin. Plea : Nbn cepit. Issue thereon. The cause came on to be tried before Crowder, J., at the last Spring Assizes for Devon. The following account of the facts which then appeared in evidence is taken from the judgment of this court. " One Facey was indebted to the plaintiff. He brought him £15 towards payment of the debt, but requested and obtained permission to lay the money out in the purchase of a horse and cart, which were to be the property of the plaintiff, but of which Facey was to have the possession and the use, subject to such occasional use as plaintiff might require to have of them, and to their being given up to plaintiff when he should demand them. Accordingly Facey made the purchase. The possession and the use were substantially with him ; he fed, stabled, and took care of the horse ; there was some evidence that his name was on the front of the cart ; certainly plaintiff's was on the side, — under what circumstance placed there, the evidence was contradictory, the plaintiff alleging it to have been placed in the ordinary way as an evidence of property, the defendant insinuating that it was so placed ia order to protect it from Facey's other creditors. It is not, however, material, because on the one hand the plaintiff's property we take to be indisputable, and on the other we do not think there is evidence enough MENNIE V. BLAKE. » to charge the defendant with fraud or collusion in the circumstances under -which he obtained possession, and which we now proceed to state. "Facey determined to emigrate; and the defendant knew of his intention, but the plaintiff did not. The horse and cart were used in transporting Facey's effects to the pier at which he was to embark ; and the defendant, to whom he owed money for fodder supplied to the horse, went with him to procure payment if he could. At parting, Facey delivered the horse and cart to him, telling him to take them for the debt, but adding that he owed the plaintiff money also, and that if he would discharge the debt due to the defendant, which was much less than their value, he was to give them up to him. In this manner the defendant acquired his possession. The plaintiff for some time re- mained in ignorance of what had passed, and afterwards, coming to the knowledge of it, demanded them ; but the defendant refused to deliver them unless his debt were paid : whereupon the plaintiff pro- ceeded to replevy the goods, and so brought the present action." Upon these facts the learned judge directed a verdict for the plaintiff, with leave to move to enter a verdict for the defendant, or a nonsuit if under such circumstances replevin did not lie. Montague /Smith, in the ensuing term, obtained a rule nisi accord- ingly. Collier and Karslake, in last Hilary Term, showed cause. Montague Smith and Coleridge, contra. Coleridge, J., now delivered judgment. This was a rule to enter a nonsuit or verdict for the plaintiff on a plea of Nbn cepit to a declara- tion in replevin ; and the facts were in substance these. His Lord- ship then stated the facts, and proceeded as follows : — Upon these facts the question raised is. Whether there was any tak- ing of the horse and cart from the plaintiff by the defendant? And we are of opinion, looking to the nature and purpose of the action of replevin, that there was no taking in the sense in which that word must be understood in this issue. The whole proceeding of replevin, at com- mon law, is distinguished from that in trespass in this, among other things : that, while the latter is intended to procure a compensation in damages for goods wrongfully taken out of the actual or constructive possession of the plaintiff, the object of the former is to procure the restitution of the goods themselves ; and this it effects by a preliminary ex parte interference by the officer of the law with the possession. This being done, the action of replevin, apart from the replevin itself, is again distinguished from trespass by this, that, at the time of declar- ing, the supposed wrongful possession has been put an end to, and the litigation proceeds for the purpose of deciding whether he, who by the supposition was originally possessed, and out of whose possession the goods were taken, and to whom they have been restored, ought to retain that possession, or whether it ought to be restored to the defen- dant. Blackstone (3 Com. 146), after observing that the Mirror 10 MENNIE V. BLAKB. ascribes the invention of this proceeding to Glanvil, says that it " obtains onlj' in one instance of an unlawful taking, that of a wrongful distress." If by this expression he only meant that in practice it was not usual to have recourse to replevin except in the case of a distress alleged to be wrongful, he was probably justified by the fact. But there are not wanting authorities to show that the remedy by replevin was not so confined ; and in the case of Shannon v. Shannon, 1 Sch. & Lef. 324, 327, Lord Redesdale finds fault with this passage, saying that the definition is "too narrow," and that "many old authorities will be found in the books of replevin being brought where there was no distress : " and the learned reporters, in a note to the passage, refer to Spelman's Glossary, 485 (tit. Heplegio) ; Doctrina Placitandi, Replevin, 313 ; Com. Dig. Replevin (A) ; and Gilbert, Distress and Replevin, 58 (4th ed., p. 80). There is no doubt that passages, such as those referred to, may be found stating the definition very broadly ; yet we believe that when the authorities on which some of them rest are examined, and when due attention has been paid to the context in others, it will appear in the result questionable, at the least, whether the commentator's more qualified definition was not correct, — at least that replevin was insti- tuted as a peculiar remedy, and under the Statute of Marlbridge by plaint as 2i.festinum remedium for the injurj' of, an unlawful distress. Thus in 2 Roll. Abr. 430, Replevin (B) 2, it is said, if trespasser takes beasts, replevin lies of this taking at election ; the authority for this is Yearb. Mich. 7 H. IV. fol. 28 B, where, the counsel or another judge alleging the contrary, Gascoigne, C. J. of K. B., says : " He may elect to have replevin or writ of trespass ; " but he adds, or the reporter adds, "and some understand that he cannot," — for which last a reason is given. Again, Com. Dig, Replevin (A) : " Replevin lies of all goods and chattels unlawfully taken." For this no authority is cited; but the context shows that ths Chief Baron was thinking, not so much of the circumstances under which taken, as of the things themselves, for he adds, " whether they be live cattle or dead chattels," or " a swarm of bees," or " iron of his mUl," citing Fitzherbert's Natwra Brevium, in whose chapter on Replevin we do not find the law so broadly laid down. As to the passage to which reference is made in Lord Chief Baron Gilbert, it should be remembered that the treatise is on the Law of Distresses and Replevins, and the passage occurs in a chapter in which replevin is treated of with reference to distress, as if the two formed parts of one subject-matter. Little, therefore, can be inferred from the generality of the language in a single sentence. A dictum of Lord EUenborough has also been referred to in JDore v. Wilkinson, 2 Stark. N. P. C. 287, from which the inference is that he thought re- plevin might conveniently be had recourse to more often than it was, instead of bringing trover ; but it was an observation thrown out in the course of a cause, a recollection of what Mr. Wallace used to say, MENNIE V. BLAKB. 11 not ruling any point, nor deciding anything, in the cause. Much impor- tance ought not to be attached to such casual observations, even of so great a judge at Nisi Prius. On the other hand, Lord Coke seems to be authority the other way. In Co. Lit. 145 b, is the following pas- sage : " A replegiare lyeth, as Littleton here teacheth us, where goods are distrained and impounded ; the owner of the goods may have a writ de replegiari facias, whereby the sheriff is commanded, taking sureties in that behalf, to re-deliver the goods distrained to the owner, or upon complaint made to the sheriff he ought to make a replevy in the county. Meplegiare is compounded of re and plegiare ; as much as to say, as to re-deliver upon pledges or sureties." From a review of these and other authorities which might be added, it may appear not settled whether originally a replevy lay in case of other takings than by distress. Nor is it necessary to decide that question now ; for at all events it seems clear that replevin is not maintainable unless in a case in which there has been first a taking out of the possession of the owner. This stands upon authority and the reason of the thing. "We have referred already to a dictum of Lord Redesdale. Three cases are to be found: Ex parte Chamberlain, 1 Sch. & Lef. 320 ; In Re Wilsons, 1 Sch. & Lef. 320, note (a) ; and Shannon v. Shannon, 1 Sch. & Lef. 324, in which the law is so laid down by Lord Redesdale. And these are cases of great authority ; for that very learned judge found the practice in Ireland the other way. He felt the inconvenience and injustice of it ; he consulted with the Lord Chief Justice, and obtained the opinion of the other judges; and then pronounced the true rule, which, in one of these cases. In Re Wilsons, he thus states : The writ of replevin " is merely meant to apply to this case, viz., where A takes goods wrongfully from B, and B applies to have them re-delivered to him upon giving security until it shall appear whether A has taken them rightfully. But if A be in possession of goods in which B claims a property, this is not the writ to try that right." In the course of these cases his Lordship points out how replevin proceeds against the general presumption of law in favor of possession ; how it casts upon him who was in posses- sion the burden of first proving his right ; and he puts {Ex, parte Chamberlain, 1 Sch. & Lef. 322), as a reductio ad absurdum, a case not unlike the present. "Suppose," says he, " the case of a person having a lien on goods in his possession, and who insists on being paid before he delivers them up : I do not see, on the principles insisted on, why a writ of replevin may not issue in that case." The reason of the thing is equally decisive : as a general rule it is just that a party in the peaceable possession of land or goods should remain undisturbed, either hy the party claiming adversely or by the officers of the law, until the right be determined and the possession shown to be unlawful. But where, either by distress or merely by a strong hand, the peaceable pos- session has been disturbed, an exceptional case arises ; and it may be just that, even before any determination of the right, the law should 12 MENNIE V, BLAKE. interpose to replace the parties in the condition in which they were before the act done, security being taken that the right shall be tried and the goods be forthcoming to abide the decision. "Whatever maybe thought of Lord Coke's etymology, what he says of replegiare, while it shows his understanding of the law, gives a true account of what reple- vin is, — a re-delivery to the former possessor on pledges found. But this is applicable clearly to exceptional cases only. If wherever a party asserts a right to goods in the peaceable possession of another he has an election to take them from him by a replevin, it is obvious that the most crj'ing injustice might not unfrequently result. Now, in the pres- ent case Facey was not the servant of the plaintiff, nor was his pos- session merely the possession of the plaintiff; he was the bailee of the plaintiff, and had a lawful possession from the delivery of the owner, which conferred on him a special property. This did not authorize him to transfer his possession to the defendant, nor could he give him a lien for his debt against the paramount right of the true owner, the bailor. After a demand and refusal, upon the admitted facts in this case, the plaintiff could clearly have maintained trover against the defendant ; but yet there was nothing wrongful in his accepting the possession from Facey. He acquired that possession neither by fraud nor violence, — at least none is found, and we cannot presume either, — and he retained the possession on a ground which might justify the retainer until the alleged ownership was proved. This, therefore, in our opinion was a case in which the plaintiff could not proceed by replevin, but should have proved his prior right in trover or detinue. It appeared in this case that the sheriff's deputy for the issuing of replevins was the attorney for the plaintiff; and although we have no reason to believe that anything wrong was here intended, we think it right to notice this circumstance, because it is one which obviously might lead to much abuse and oppression. It is proper to be known that there are several cases to be found in the books in which attach- ments have issued where replevins have been thought to have been granted improperly and from improper motives. The rule should be absolute, not to enter a verdict, but a nonsuit. Mule absolute for a nonsuit?- 1 In Mdlor v. Leather, 1 E. & B. 619 (1853), it had been said by the Court of Queen's Bench that replevin would lie where goods had been unlawfully taken, though not as a distress. STOUGHTON V. EAPPALO. 13 STOUGHTON v. EAPPALO. Supreme Court op Pennsylvania. 1818. [Beported 3 S. <& R 559.] This was a replevin for 631 barrels of flour, tried before the Chief Justice, at Nisi Prius, in November, 1817, when the jury found a ver- dict for the plaintiflF, subject to the opinion of the court in banc on a point reserved. The plaintiff, on March 9th, 1813, contracted to ship 631 barrels of flour on board the Minerva, a Spanish vessel, of which the defend- ant was master, from Philadelphia to Havanna, at four dollars a barrel. The flour was accordingly put on board by March 16th, the ship then lying at the wharf in Philadelphia. On March 16th the bills of lading were signed, and the ship cleared out at the custom-house ; and on the 17th she cleared out at the Spanish consul's. When the contract was made, both parties expected a blockade of the Delaware bj' the British, and, accordingl}', notice was received in Philadelphia on March 16th that the blockade was instituted. Under these circumstances the plaintiff several times applied to the defendant either to proceed on his voyage, or to deliver up the flour ; and the defendant, on the last application, refused to do either, unless the plaintiff, in case of the flour being delivered to him, would pay one half freight (two dollars a barrel), or, in case the vessel proceeded, would guarantee the ship and two thirds of the freight. The plaintiff, therefore, on April 29th, Issued this replevin, on which the flour was delivered to him. The defendant pleaded property, on which issue was joined, and a verdict taken for six cents damages and six cents costs, subject to the opinion of the court whether the property at the commencement of the action was in the plaintiff. Chauncey and Tngersoll for the defendant. J. H. Jngersoll, contra. Duncan, J. However the law may be in England as to the action of replevin, whether it only lies in case of distress, as is held by some (3 Bl. 145), or whether, as held bj- others, it lies in all cases where the goods have been taken out of the actual possession of the owner, it is the established law of Pennsylvania that it lies in all cases where a man claims goods in the possession of another. 1 Dall. 156. 6 Binn. 8. It is a question of property. It is not like trover, which is an equitable action, and if the party has a legal or equitable lien on the property, it may be defalked in the damages assessed by the jury. But in a case where the claim of the defendant must be entirely uncertain, no fixed standard by which to ascertain it, the owner cannot know what sum to tender ; and if a verdict passed against him in replevin, because he tendered too little, his property' would be lost. Here the goods were delivered to the plaintiff. If there is a verdict for the defendant, it 14 SOMEESET V. COOKSON. must be a general one ; in which case there would be judgment de retorno habendo, and the defendant might, for the value of the goods, and not for the amount of the lien claimed by him, proceed against the sheriff or the pledges. In the action the jury could not award damages to the defendant. The taking here not being tortious, the plaintiff must prove property. If the taking were wrongful, this burden would lie on the defendant. The plaintiff has proved property. The defendant cannot claim a lien on the ground of freight, for no freight was earned ; and it is impossi- ble to say certainly that it would have been earned, had there been no blockade, for still the voyage might not have been safely performed. The plaintiff had done everything on his part. The defendant was not prevented from earning it by any breach of contract on the part of the plaintiff. It is not necessary, as this case comes before the court, to decide whether the defendants were entitled to any compensation, and if to any, what. The occasion does not call for an opinion on the question whether the contract is dissolved or suspended. Although no direct decision has been produced, yet it appears from writers whose opinions are entitled to great respect, and such, too, would appear to be the rea- son of the thing, independently of direct precedents, that in case of a cargo such as this, perishable in its nature, which if kept on board during the continuance of the blockade would have been spoiled, or if secured on shore must be greatly deteriorated, that the owner had a right to have such cargo unladen, and to the possession of it, and the power to sell it, without giving any security to replace it. If this be so, the defendant could have no lien on the cargo. For the doctrine of lien is founded on the possessor's right to detain until the lien is dis- charged. When the possession is gone, the lien is gone. The remedy of the defendant for compensation, if he has any, is not by detaining the goods, nor action for recovery of freight, but an action for the recovery of damages for not being suffered to carry it.* New trial refused. SECTION II. BILL IN BQUITT. SOMERSET V. COOKSON. In Chancery, before Lord Talbot, C. 1735. [Beported 3 P. Wms. 390.] The Duke of Somerset, as lord of the manor of Oorbridge, in North- umberland (part of the estate of the Piercys, late Earls of Northumber- 1 The opinions of the other judges concarring are omitted. Fop the States which give the same scope to the action, see Morris, Repleyin (3d ed.)i 52-54. See also Wil- son T. Fuller, 9 Kan. 176, 190 (1872). SOMERSET V. COOKSON. 15 land) , was entitled to an old altar-piece made of silver, remarkable for a Greek inscription and dedication to Hercules. His grace became entitled to it as treasure-trove within his said manor. This altar-piece had been sold by one who had got the possession of it to the defend- ant, a goldsmith at Newcastle, but who had notice of the Duke's claim thereto. The Duke brought a bill in equity to compel the delivery of this altar-piece in specie, undefaced. The defendant demurred as to part of the bill, for that the plaintiff had his remedj^ at law by an action of trover or detinue, and ought not to bring his bill in equity ; that it was true, for writings savoring of the realty a bill would Iie,^ but not for anything merely personal, any more than it would for an horse or a cow. So a bill might lie for an heirloom, as in the case of Pusey v. Pusey, 1 Vern. 273. And though in trover the plaintiff could have only damages, yet in detinue the thing itself, if it can be found, is to be recovered ; and if such bills as the present were to be allowed, half the actions of trover would be turned into biUs in chancery. On the other side it was urged that the thing here sued for was matter of curiosity and antiquity ; and though at law only the intrinsic value is to be recovered, yet it would be very hard that one who comes bj' such a piece of antiquity by wrong, or it may be as a trespasser, should have it in his power to keep the thing, paying only the intrinsic value of it, — which is like a trespasser's forcing the right owner to part with a curiosity or matter of antiquity' or ornament, nolens volens. Besides, the bill is to prevent the defendant from defacing the altar- piece, which is one way of depreciating it ; and the defacing may be with an intention that it may not be known, by taking out or erasing some of the marks and figures of it. And though the answer had denied the defacing of the altar-piece, yet such answer could not help the demurrer. That in itself nothing can be more reasonable than that the man who by wrong detains my property, should be compelled to restore it to me again in specie ; and the law being defective in this particular, such defect is properly supplied in equity. "Wherefore it was prayed that the demurrer might be overruled, and it was overruled accordingly. 1 See Pieree y. Lamson, 5 Allen, 60. — Ed. CHAPTER II. ACQUISITION OF EIGHTS NOT UNDER FORMER OWNER. Note. — In tMs chapter are considered the cases in which the chattel in question either had no former owner, or in which, if it had a former owner, the present claimant does not derive his title from him. SECTION I. CHATTELS HAVING NO FOKMEE OWNEE. (Inst. II. 1, 12, 13 & 15.) 12. Wild beasts, therefore, and birds and fishes, that is to say, all animals that live on the earth, in the sea or in the air, as soon as they are caught by any one, become his at once by virtue of the law of na- tions. For whatever has previously belonged to no one, is granted by natural reason to the first taker. Nor does it matter whether a man catches the wild beasts or birds on his own ground, or on another's ; although a person purposing to enter on another's land for the purpose of hunting or fowling may of course be prohibited from entering by the owner, if he perceive him. Whatever, then, you have caught of this kind, is regarded as yours so long as it is kept in your custody ; but when it has escaped from your custod}' and reverted to its natural free- dom, it ceases to be yours, and again belongs to the first taker. And it is considered to have recovered its natural freedom when it has either escaped out of your sight, or is still in sight, but so situated that its pursuit is difficult.* 13. It has been debated whether a wild beast is to be considered yours at once, if wounded in such manner as to be capable of capture ; and some have held that it is yours at once, and is to be regarded as yours so long as you are pursuing it, but that if j'ou desist from pur- suit, it ceases to be yours, and again belongs to the first taker. Others have thought that it is not yours until you have actually caught it. And we adopt the latter opinion, because many things may happen to prevent your catching it. 15. ... But, with respect to animals which are in the habit of going and returning, the rule has been adopted, that they are considered yours as long as they have the intention of returning, but if they cease to have this intention, they cease to be yours, and become the property of the first person that takes them. These animals are supposed to have lost the intention, when they have lost the habit, of returning.^ 1 See Manning v. Mitcherson, 69 Ga. 447 (1882) ; Mullett v. Brayne, 53 N. Y. Snpp. 781 (1898) ; Report Royal Com. on Grim. Code, p. 26. See also Haslem v. Lockwood, 37 Conn. 500.— Ed. a See Behring Sea Arbitration, I Moore, Int. Arbs. 881, 917, 918. YOUNG V. HICHENS. 17 THE CASE OF SWANS. 7 Co. 15 b, 17 a (1592). — And in the same case it is said that the truth of the matter was that the Lord Strange had certain swans which were cocks, and Sir John Charleton certain swans which were hens, and they had cignets between them ; and for these cignets the owners did join in one action, for in such case by the general custom of the realm, which is the common law in such case, the cignets do belong to both the owners in common equallj', sc. to the owner of the cock and the owner of the hen ; and the cignets shall be divided betwixt them. And the law thereof is founded on a reason in nature ; for the cock swan is an emblem or representation of an affectionate and true husband to his wife above all other fowls ; for the cock swan holdeth himself to one female only, and for this cause nature hath conferred on him a gift beyond all others ; that is, to die so joyfully, that he sings sweetly when he dies ; upon which the poet saith, — Dolcia defecta modulatur carmina lingua, Cantator, cygnus, funeris ipse sui, etc. And therefore this case of the swan doth differ from the case of kine, or other brute beasts. Vide 7 Hen. IV. 9.^ YOUNG V. HICHENS. Queen's Bench. 1844. [Reported 6 Q. B. 606.] Trespass. — The first count charged that defendant, with force, &c., seized and disturbed a fishing sean and net of plaintiff, thrown into the sea for fish, wherein plaintiff had taken and inclosed, and then held inclosed in his own possession, a large number of fish, to wit, &c., and that defendant threw another fishing sean and net within and upon plaintiff's sean and net, and for a long time, to wit, &c., prevented plaintiff from taking the fish, so taken and inclosed, out of his sean and net, as he could otherwise have done; and drove, &c., the fish; whereby part of them died, part were injured, and part escaped ; and the sean and net was injured. Second count, that defendant with force, &c., seized, took, and converted fish of plaintiff. Pleas, 1. Not guilty. Issue thereon. 2. To the first count, as to preventing plaintiff from taking the fish alleged to be inclosed in his possession, and driving, &c., the said fish : that the fish were not plaintiff's fish, and he was not possessed of them, in manner, &c. Conclusion to the country. Issue thereon. * See Tyson, v. Simpson, 2 Hayw. (No. Ca.) 147. — Ed. 2 18 YOUNG V. HICHENS. 3. To the second count, that the fish were not the plaintiff's fish, in manner, &c. : conclusion to the country. Issue thereon. 4 and 5. As to other parts of the declaration, raising defences under statutes 16 Geo. III. c. 36, and 4 & 5 "Vict. c. Ivii. (local and personal, public), relating to the St. Ives (Cornwall) pilchard fishery. Issues of fact were tendered and joined on those pleas. On the trial, before Atcherley, Serjt., at the Cornwall Spring Assizes, 1843, it appeared that the plaintiff had drawn his net partially round the fish in question, leaving a space of about seven fathoms open, which he was about to close with a stop net ; that two boats, belonging to the plaintiff, were stationed at the opening, and splashing the water about, for the purpose of terrifying the fish from passing through the opening ; and that at this time the defendant rowed his boat up to the opening, and the disturbance, and taking of the fish, complained of, took place. The learned Serjeant left to the jury the question of fact whether the fish were at that time in the plaintiff's possession, and also other ques- tions of fact on the other issues. Verdict for plaintiff on aU the issues, with damages separately assessed ; namely, £568 for the value of the fish, and £1 for the damage done to the net. Leave was given to move as after mentioned. In Easter term, 1843, Crowder obtained a rule nisi for entering a verdict for defendant on all the issues, or on the 2nd, 3rd, 4th, and 5th, or for reducing the damages to 20s. and entering a ver- dict for defendant on the 2nd and 3rd issues ; or for a new trial ; or for arresting the judgment. In Hilary vacation (Feb. 10th), 1844, Cockburn and Montague /Smith showed cause. Crowder, contra. LoED Denman, C. J. It does appear almost certain that the plaintiff would have had possession of the fish but for the act of the defendant ; but it is quite certain that he had not possession. Whatever interpre- tation may be put upon such terms as " custody" and "possession," the question will be whether any custody or possession has been obtained here. I think it is impossible to say that it had, until the party had actual power over the fish. It may be that the defendant acted unjus- tifiably in preventing the plaintiff from obtaining such power ; but that would only show a wrongful act, for which he might be liable in a proper form of action. Patteson, J. I do not see how we could support the affirmative of these issues upon the present evidence, unless we were prepared to hold that all but reducing into possession is the same as reducing into pos- session. Whether the plaintiff has any cause of action at aU is not clear; possibly there may be a remedy under the statutes. WiGHTMAN, J. I am of the same opinion. If the property in the fish was vested in the plaintiff by his partially inclosing them, but leaving an opening in the nets, he would be entitled to maintain trover for fish which escaped through that very opening. (CoLERiDG-E, J., was abscut.) Eule absolute for reducing the damages to 20s., and entering the verdict for defendant on the second and third issues. SWIFT V. GUTORD. 19 BUSTER V. NEWKIRK. Supreme Court of New York. 1822. [Reported 20 Johns. 76.] In error, on certiorari to a justice's court. Newkirk brought an action of trover against Buster for a deer skin. It appeared that N. was hunting deer on the 31st of December, 1819, and had wounded one, about six miles from B.'s house, which he pur- sued with his dogs. He followed the track of the deer, occasionally discovering blood, until night ; and on the next morning resumed the pursuit, until he came to B.'s house, where the deer had been killed the evening before. The deer had been fired at by another person, just before he was killed by B., and fell, but rose again, and ran on, the dogs being in pursuit, and the plaintiff's dog laid hold of the deer about the same time, when B. cut the deer's throat. N. demanded the venison and skin of B., who gave him the venison, but refused to let him have the skin. The jury found a verdict for the plaintiff for seventy-five cents, on which the justice gave judgment. Per Curiam: The principles decided in the case of Pierson v. Post (3 Caines' Rep. 175) are applicable here. The authorities cited in that case establish the position that property can be acquired in animals ferm natures by occupancy only, and that in order to con- stitute such an occupancy it is sufficient if the animal is deprived of his natural liberty, by wounding or otherwise, so that he is brought within the power and control of the pursuer. In the present case the deer, though wounded, ran six miles ; and the defendant in error had abandoned the pursuit that day, and the deer was not deprived of his natural liberty, so as to be in the power or under the control of N. He therefore cannot be said to have had a property in the animal so as to maintain the action. The judgment must be reversed. Judgment reversed. SWIFT V. GIFFORD. United States District Court for Massachusetts. 1872. [Reported 2 Lowell, 110.] Libel by the owners of the ship Hercules against the agent and managing owner of the Rainbow, both whale-ships of New Bedford, for the value of a whale killed in the Ochotsk Sea by the boats of the Hercules, and claimed by the master of the Rainbow, and taken and 20 SWIFT V. GIPPOED. appropriated by him, because one of his harpoons, with a line attached to it, was found fastened in the animal when he was killed. The evi- dence tended to show that the boats of the respondents raised and made fast to the whale, but he escaped, dragging the iron and line, and so far outran his pursuers that the boats' crews of the Hercules did not know that any one had attacked or was pursuing the whale when they, being to windward, met and captured him ; that the master of the Rainbow was, in fact, pursuing, and came up before the whale had rolled over, and said that one of his irons would be found in it, which proved to be true ; and he thereupon took the prize. The parties filed a written stipulation that witnesses of competent experience would tes- tify that, during the whole time of memory of the oldest masters of whaling-ships, the usage had been uniform in the whale-fishery of Nan- tucket and New Bedford that a whale belonged to the vessel whose iron first remained in it, provided claim was made before cutting in. There were witnesses on the stand who confirmed the existence of the usage, and who extended it to all whalemen in these seas ; and there was nothing offered to oppose this testimony. The only disputed question of fact or opinion was concerning the reasonable probability that the whale would have been captured by the Rainbow if the boats of the Hercules had not come up. The value of the whale was said to be about $3,000. J. O. Dodge and G. T. Bonney, for the libellants. G. Marston and W. W. Crapo, for the respondent. Low:ell, J. : The rule of the common law, borrowed probably from the Roman law, is that the property in a wild animal is not acquired by wounding him, but that nothing short of actual and complete pos- session will avail. This is recognized in aU the cases concerning whales cited at the Bar, as well as in the authorities given under the first point. Whether the modern civil law has introduced the modifi- cation that a fresh pursuit with reasonable prospect of success shall give title to the pursuer, does not seem to be whollj' free from doubt, though the ancient commentators rejected such a distinction, for the satisfactory reason that it would only introduce uncertainty and confu- sion into a rule that ought to be clear and unmistakable. See Pan- dects, by Pothier, vol. xvi. p. 550 ; lib. 41, tit. 1 ; Gaius, by Tompkins & Lemon, p. 270. I do not follow up this inquiry, because it would be impossible for me to say that the crew represented by the respond- ent, though continuing the chase, had more than a possibility of success. The decision, therefore, must turn on the validity of the usage, with- out regard to the chances of success which the respondent's crew had when the others came up. It is not disputed that the whalemen of this State, who have for many years past formed, I suppose, a very large proportion of all those who follow this dangerous trade in the Arctic seas, and perhaps aU other Americans, have for a very long time recog- nized a custom by which the iron holds the whale, as they express it. SWIFT V. GIFFOED. 21 The converse of the proposition is that a whale which is found adrift, though with an iron in it, belongs to the finder, if it can be cut in be- fore demand made. The usage of the English and Scotch whalemen in the Northern flsherj-, as shown by the cases, is, that the iron holds the whale onlj' while the line remains fast to the boat ; and the result is, that every loose whale, dead or alive, belongs to the finder or taker, if there be but one such. The validity of the usage is denied by the libellants, as overturning a plain and well-settled rule of property. The cases cited in the argu- ment prove a growing disposition on the part of the courts to reject local usages when they tend to control or varj' an explicit contract or a fixed rule of law. Thus Story, J., in The Heeside, 2 Sumner, 569, saj's, " I own mj'self no friend to the almost indiscriminate habit of late years of setting up particular usages or customs in almost all kinds of business and trade, to control, vary, or annul the general liabilities of parties under the common law, as well as the commercial law. It has long appeared to me that there is no small danger in admitting such loose and inconclusive usages and customs, often unknown to particular parties, and liable to great misunderstandings and misin- terpretations and abuses, to outweigh the well-known and well-settled principles of law." Many similar remarks of eminent judges might be cited. But in the application of these general views it will be found difficult to ascertain what is considered a principle of law that cannot be interfered with. Principles of law differ in their impor- tance as well as in their origin ; and while some of them represent great rules of policy, and are beyond the reach of convention, others may be changed bj' parties who choose to contract upon a different footing ; and some of them maj' be varied by usage, which, if general and long established, is equivalent to a contract. Thus in Wiggles- worth V. Dallison, Doug. 201, which Mr. Smith has selected as a lead- ing case, the law gave the crops of an outgoing tenant to his landlord ; but the custom which made them the property of the tenant was held to be valid. The rule of law invoked in this ease is one of very limited applica- tion. The whale-fishery is the only branch of industry of any impor- tance in which it is likely to be much used ; and if a usage is found to prevail generallj^ in that business, it will not be open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception. Then the application of the rule of law itself is very difficult, and the necessity for greater precision is apparent. Suppose two or three boats from different ships make fast to a whale, how is it to be decided which was the first to kill it ? Every judge who has dealt with this subject has felt the importance of upholding all reasonable usages of the fishermen, in order to prevent dan- gerous quarrels in the division of their spoils. In Fennings v. Gren- ville, 1 Taunt. 241, evidence was oflTered of a custom in the Southern fishery for the contending ships to divide the whale equally between 22 SWTFT V. GIPFOED. tbem. This custom, which differed entirely from that prevailing in the North Atlantic, was yet thought to be not unreasonable. Chambre, J., said, "I remember the first case on the usage which was had before Lord Mansfield, who was clear that every person was bound by it, and who said that were it not for such a custom there would be a sort of warfare perpetually subsisting between the adventurers." The case went off upon a question of pleading, and the custom was not passed upon ; but it is clear that it was thought to be valid. In the other cases cited, the usage first above mentioned was found to be valid. In the case of Bartlett v. Budd, 1 Lowell, 223, the respondents claimed title to a whale by reason of having found it, though it had been not only killed, but carefully anchored, by the libellants. I there inti- mated a doubt of the reasonableness of a usage in favor of the larceny of a whale under such circumstances, and I still think that some parts of the asserted usage could hardly be maintained. If it were proved that one vessel had become fully possessed of a whale, and had after- wards lost or left it, with a reasonable hope of recovery, it would seem unreasonable that the finder should acquire the title merely because he is able to cut in the animal before it is reclaimed. And, on the other hand, it would be diflScult to admit that the mere presence of an iron should be fuU evidence of property, no matter when or under what cir- cumstances it may have been affixed. But the usage being divisible in its nature, it seems to me that, so far as it relates to the conduct of the men of different vessels in actual pursuit of a whale, and pre- scribes that he who first strikes it so effectually that the iron remains fast should have the better right, the pursuit stiU continuing, it is reasonable, though merely conventional, and ought to be upheld. In JBourne v. Ashley, determined in June, 1863, but not printed, Judge Sprague, whose experience in this class of cases was very great, found the custom to be established, and decided the cause in favor of the libellants, because they owned the first iron, though the whale was killed by the crew of the other vessel, or by those of both together. Mr. Stetson, of counsel in that case, has kindly furnished me with a note of the opinion taken down by him at the time, and I have care- fully compared it with the pleadings and depositions on file, and am satisfied that the precise point was in judgment. The learned judge is reported to have said that the usage for the first iron, whether attached to the boat or not, to hold the whale, was fully established, and that one witness carried it back to the year 1800. He added, that although local usages of a particular port ought not to be allowed to set aside the general maritime law, this objection did not apply to a custom which embraced an entire business, and had been concurred in for a long time by every one engaged in that trade. In this case the parties all understood the custom, and the libellants' master yielded the whale in conformity to it. If the pursuit of the Eainbow had been clearly understood in the beginning, no doubt the other vessel would not have taken the trouble to join in it, and MTTEPHT V. DUNHAM. 23 the usage would have had its appropriate and beneficial effect. In the actual circumstances, it is a hard case for the libellants ; but as they have not sustained their title, I must dismiss their cause, and, in con- sideration of the point being an old one in this court, with costs. Zdbel dismissed, with costs. SECTION II. "WRECK. MURPHY V. DUNHAM. U. S. District Court, E. D. Michigan. 1889. [Reported 38 Fed. Rep. 503.] Libel ^ in admiralty for the conversion of 981 tons of coal. Re- spondent was owner of the schooner Wells Burt, carrying 1375 tons of coal from Buffalo, consigned to Chicago. On May 18, 1883, the ves- sel anchored off Evanston, Illinois, and sunk at her anchorage, in a storm, with all on board, neither man nor animal surviving. The whereabouts of the schooner were wholly unknown. Both respondent and the consignees of the cargo abandoned their interests to the under- writers as a total loss. Afterwards the underwriters of the cargo made a sale of the cargo to the libellant Murphy. Some two months after the loss, the schooner was located by the libellant and the respondent, independently of one another. Libellant's diver reported that the ex- pense of raising the cargo would exceed its value. No attempt was made to raise the schooner. In January, 1884, the respondent notified the underwriters and the libellant, that he intended to raise the vessel, and that, unless he heard to the contrary from the libellant, respondent should consider that libellant abandoned the cargo. To this libellant replied that he neither had abandoned nor intended to abandon his in- terest, and that he had already begun preparations for rescuing the schooner and cargo. In June, 1884, the respondent, without any license from libellant or the underwriters, raised 981 tons of coal from the schooner, which he sold in open market. The consignee, on notice of the arrival of the cargo in Chicago, refused to receive the same and pay the charges, declaring that he had been paid by the underwriters. Murphy was informed of the respondent's operations during their prog- ress, but he made no claim for the coal till May, 1885, when this suit was brought. Brown, J. By the common law of England it would appear that property found floating at sea, by which we mean more than a marine league from the shore, belonged to the finder. Thus, Britton says * The statement of facts is atbreviated. Part of the opinion is omitted. 24 MURPHY V. DUNHAM. (lib. 1, c. 17) : " Of treasure hid in the ground, the king will have it, and if it be found in the sea, be it to the finder." And, again: "If found on the shore, they (the shipwrecked goods) are a wreck and be- long to the king ; but if they are found in the sea further off from the shore, then whatever has been found shall belong to the finder, because it may be said to be then no man's goods ; ^ the king no more than a private person." By the statute (3 Edw. I. c. 4) known as the " Statute of Westminster," it is provided, that, " concerning wrecks of the sea, it is agreed that where a man, a dog, or a cat escape quick out of the ship, that such ship, nor barge, nor an3-thing within them shall be adjudged wreck, but the goods shall be saved and kept by view of the sheriff, coroner, or king's bailiff, and delivered into the hands of such as are of the town where the goods are found ; so that if any sue for those goods, and after proof that thej' were his, or perished in his keeping, within a year and a day, they shall be restored to him without delay ; and if not, they shall remain to the king, and be seized by the sheriffs, coroners, and bailiffs, and shall be delivered to them of the town, which shall answer before the justices of the wreck belonging to the king. And, where the wreck belongeth to another than the king, he shall have it in like manner." It is upon this statute, which is as- sumed to be a part of the common law of this country, that defendant relies for his claim that the libeUant lost his property in the coal in question by reason of his failure to appear within a year and a day to make claim to it. The statute, however, seems to be merely declara- tory of the common law, and the fact that no dog, nor cat, nor other animal came alive ashore, did not by any means prove that the goods were a wreck, or forfeited. Hamilton v. £>avis, 5 Burrows, 2732, 2738. It was said in that case that " if the owner of the dog or cat or other animal was known, the presumption of the goods belonging to the same person would be equally strong, whether the animal was alive or dead. If no owner could be discovered, the goods belonged to the king. But there ought to be a reasonable time allowed to the owner to come in and claim them." " The old limitation was a j'ear and a day, which was the time limited in many other cases." The only significance of the dog or cat was in raising a presumption (which seems somewhat far fetched) towards ascertaining the owner of the goods. At any rate the modern system of marking goods has completely supplanted this primitive and inconclusive proof. But I think this statute has no application to the case under consid- eration for two reasons : First. The coal lying at the bottom of the lake was not by the com- mon law wreck of the sea. Lord Hale in his treatise De Jure Maris, 37, speaking of wreck, says : " The kinds of it are two : First, such as is called properly so, the goods cast upon the land or shore ; second, improper, for goods that are a kind of sea waifs or stray ; flotsam, jet- sam and ligan." This coal had never been cast upon the land or shore, I Bnt see The King v. Property Derelict, 1 Hagg. ( Adm.) 383. — Ed. MURPHY V. DUNHAM. 25 and hence was not wreck proper. It was not flotsam, because it did not float upon the water. It was not jetsam, because it never had been cast into the sea to save the ship ; nor was it ligan, because the very definition of the word from the Latin " ligo," to bind, indicates that it must be buoj'ed ; but it was simply property lying at the bottom of the sea, which " awaits its owner." 1 Bl. Comm. 290-295 ; 3 Black Book Adm. 441, 445 ; 4 Black Book Adm. 517; Ang. Tidewaters, c. 10 j Baker v Hoag, 7 N. Y. 555. Second. The year and a day does not begin to run from the day of the wreck, nor from the time the goods were first discovered, but from the day the goods are actually taken and seized by the finder. Thus, in the case of Dunwich v. Sterry, 1 Barn. & Adol. 841, 842, it is said that this year and a day dates from the seizure and actual possession of the lord ; " for, until then," says Lord Coke, " it is not notorious who claims the wreck, or to whom the owner shall repair to make his claim, and show him his proofs." This also corresponds to the modern Eng- lish statute upon the subject of wrecks (17 & 18 Vict. c. 104), by which (section 470) the owner is given a year from the date at which the wreck came into the possession of the receiver to establish his claim. This suit was begun within a year after the coal was raised by the re- spondent. Sir Henry Constable's Case, 5 Coke, 105. It is entirely clear to my mind that the United States has no title to this coal, even if it were to be treated as derelict, or property of which no owner could be found, since the proprietorship of the State extends to the centre of the lake, subject only to the right of Congress to con- trol its commerce and navigation. Pollard's Lessee v. Hagan, 3 How. 212, 230 ; Barney v. Keokuk, 94 U. S. 324, 338. Nor is there anything in the statute of Illinois which indicates that the title ever became vested in the State. The only statute having any connection with the subject is limited to "watercraft, timber, or plank found adrift on any water-course within the limits or upon the borders of this State," and has no application to any other species of cargo. Starr & C. 111. St. c. 50, § 21. It could only become the prop- erty of the State by applying the common-law doctrine of escheat. Indeed, after careful search of all the authorities upon the subject, I can find nothing to indicate either that of wrecks of the sea, or prop- erty lying at the bottom of the sea, which can be identified by its owner, the owner loses his title, provided he appears within a year and a day to make claim to it. The salvor of such property may, undoubtedly, retain possession of it until his compensation is paid, or may take pro- ceedings to procure a judicial sale in admiralty, and upon such sale it is not unusual to award the whole of the proceeds to the salvor, par- ticularly if bis expenses have exceeded the value of the property, but in no other wav can the title of the owner be divested. 25 WAIFS, ESTBAYS, AND DEODANDS. SECTION in. WAIFS, ESTRAYS, AND DEODANDS. 1 Bl. Com. 297. — Waifs, bona waoiata, are goods stolen, and ■waved or thrown awaj' by the thief in his flight, for fear of being ap- prehended. These are given to the king by the law, as a punishment upon the owner for not himself pursuing the felon and taking away his goods from him. Cro. Eliz. 694. And therefore if the party robbed do his diligence immediately to follow and apprehend the thief (which is called making fresh suit) , or do convict him afterwards, or procure evidence to convict him, he shall have his goods again. Finch. L. 212. Waved goods do also not belong to the king till seized by somebody for his use ; for if the party robbed can seize them first, though at the distance of twenty years, the king shall never have them. Finch. L. 212. If the goods are hid bj- the thief, or left any where by him, so that he had them not about him when he fled, and therefore did not throw them awaj'^ in Ms flight, these also are not bona waviata, but the owner may have them again when he pleases. 5 Rep. 109. The goods of a foreign merchant, though stolen and thrown awaj' in flight, shall never be waifs (Fitz., Abr., tit. Estray, 1. 3 Bulstr. 19) ; the reason whereof may be, not only for the encouragement of trade, but also because there is no wilful default in the foreign merchant's not pursuing the thief; he being generally a stranger to our laws, our usages, and our language. Estrays are such valuable animals as are found wandering in any manor or lordship, and no man knoweth the owner of them ;i in which case the law gives them to the king as the general owner and lord para- mount of the soil, in recompense for the damage which they may have done therein ; and they now most commonly belong to the lord of the manor, by special grant from the crown. But in order to vest an abso- lute property in the king, or his grantees, they must be proclaimed in the church and two market towns next adjoining to the place where they are found ; and then, if no man claims them, after proclamation and a year and a day passed, they belong to the king or his substitute without redemption (Mirr. c. 3, § 19), even though the owner were a minor, or under any other legal incapacity. 5 Rep. 108. Bro., Abr,, tit. JEstray. Cro. Eliz. 716. A provision similar to which obtained in the old Gothic constitution with regard to all things that were found, which were to be thrice proclaimed : primum coram comitibus et via- toribus obviis, deinde in proxima villa velpago, postremo coram eccle- sia vdjudicio; and the space of a year was allowed for the owner to 1 See State v. Apel, U Tex. 428. WAIFS, ESTEAYS, AND DEODANDS. 27 reclaim his property. Stiemh., Dejur. Gothor., 1. 3, c. 5. If the owner claims them within the year and day, he must pay the charges of find- ing, keeping, and proclaiming them. Dalt. Sh. 79. The king or lord has no property till the year and day passed ; for if a lord keepeth an estray three-quarters of a year, and within the j'ear it strayeth again, and another lord getteth it, the first lord cannot take it again. Finch. L. 177. Any beasts may be estrays that are by nature tame or re- claimable, and in which there is a valuable propertj", as sheep, oxen, swine, and horses, which we in general call cattle ; and so Fleta (L. 1, c. 43) defines them pecus vagans, quod nullus petit, sequitur, vel advocat. For animals upon which the law sets no value, as a dog or cat, and Rnimals ferce naturae, as a bear or wolf, cannot be considered as estraj's. So swans may be estrays, but not any other fowl (7 Rep. 17, 19) ; whence they are said to be royal fowl. The reason of which distinction seems to be that cattle and swans being of a reclaimed nature, the owner's property in them is not lost merely bj- their tempo- rary escape ; and they also, from their intrinsic value, are a sufficient pledge for the expense of the lord of the franchise in keeping them the year and daj'. For he that takes an estray is bound, so long as he keeps it, to find it in provisions and .preserve it from damage (1 Roll. Abr. 889) ; and may not use it by way of labor, but is liable to an action for so doing. Cro. Jac. 147. Yet he may milk a cow, or the like ; for that tends to the preservation, and is for the benefit of the animal. Cro. Jac. 148. Noy. 119. 1 Bl. Com. 300. — By this [a deodand] is meant whatever personal chattel is the immediate occasion of the death of any reasonable creature ; which is forfeited to the king, to be applied to pious uses, and distributed in alms by his high almoner (1 Hal. P. C. 419. Fleta, 1. 1, c. 25) ; though formerly destined to a more superstitious purpose. It seems to have been originally designed, in the blind days of popery, as an expiation for the souls of such as were snatched away by sudden death ; and for that purpose ought properly to have been given to holy church.^ 1 See Holmes, Common Law. 28 HUGHES V. CORNELITTS. SECTION IV. JUDGMENTS. HUGHES V. CORNELIUS. King's Bench, 1680. [Repcyrted 2 Show. 232.] Tkovee brought for a ship and goods, and on a special verdict there is found a sentence in the admiralty court in France, which was with the defendant [plaintiff]. And now per Curiam agreed and adjudged, that as we are to take notice of a sentence in the admiralty here, see Ladiroke v. Grickett, 2 Term Eep. 649, so ought we of those abroad in other nations, and we must not set them at large again, for otherwise the merchants would be in a pleasant condition; for suppose a decree here in the Exchequer, and the goods happen to be carried into another nation, should the courts abroad unravel this ? It is but agreeable with the law of nations that we should take notice and approve of the laws of their countries in such particulars. If you are aggrieved, you must apply yourself to the king and council ; it being a matter of government, he will recom- mend it to his liege ambassador if he see cause ; and if not remedied, he may grant letters of marque and reprisal. And this case was so resolved by all the court upon solemn debate ; this being of an English ship taken by the Trench, and as a Dutch ship in time of war between the Dutch and the French.^ Judgment for the defendants [pZam^t^f]- 1 The special verdict was, that one William Gault, a denizen of England, was owner of the ship at the time she was taken ; that the master of the ship was a native of Hol- land, hut made a denizen of England ; that two of the sailors were Dutchmen, and the mate, with the eight other mariners, Englishmen ; that the ship was Dutch-huilt, and taken during the war between Holland and France, and condemned as a Dutch prize in the court of admiralty in France, and sold to the plaintiff Hughes under that sentence ;. and that on her arrival in England, the defendant Cornelius and others, as the servants of William Gault, took and converted the ship to their own use. s. c. Eaym. 473. The sentence of the admiralty was produced under seal. 2 Ld. Eaym. 893. But the court would not suffer this verdict to he argued, hut ordered judgment to be entered for the plaintiff; for sentence in a court of admiralty ought to bind generally, accord- ing to jua gentium., s. c. Skinner, 59, although the facts found by the special verdict were contrary to, and falsified the sentence in, the admiralty court, s. c. cited by Holt, C. J., who was counsel for the plaintiff, 2 Ld. Raym. 893, for the property is thereby altered, though the sentence be unjust, s. o. cited Ewer v. Jmes, 2 Ld. Raym. 936. Carth, 225. 9 Mod. 66. Bull. N. P. 244, 245. It has, however, been determined that a sentence of condemnation in a foreign court of admiralty is not con- clusive evidence that a ship was not neutral, unless it appear that the condemnation went upon that ground, Bemarde v. Motteux, Dougl. 54 ; but such a sentence is tmclusive as to every thing tha^- appears on the face of it, Barzillay y. Lewis, Park. GRIFFITH V. FOWLER. 29 GRIFFITH V. FOWLER. Supreme Court of Vermont. 1846. [Reported 18 Ft. 390.] Trespass for taking a shearing machine. The case was submitted upon a statement of facts, agreed to by the parties, from which it appeared, that in 1836 the defendant, being the owner of the machine in question, lent it to one Freeman, to use in his business as a clothier, who was to pay a yearly rent therefor, and in whose possession it remained until the year 1841, when it was sold at sheriff's sale, on ex- ecution, as the property of Freeman, and one Richmond became the purchaser; that Richmond, in January, 1842, sold the machine to the plaintiff, who at the same time purchased of Freeman the building, in which the machine was situated, and took possession thereof; and that the defendant, in February, 1842, took the machine from the plaintiff's possession, claiming it as his property. The value of the machine was admitted to be fifty dollars. Upon these facts the county court, — Hebard, J., presiding, — rendered judgment for the defendant. Exceptions bj' plaintiff. Ins. 359 ; so, where no special ground is stated in the sentence, but the ship is con- demned generally as good and lawful prize, Saloucci v. Woodhouse, Park. 362 ; unless manifestly, upon the face of it, against law and justice, Saloucci v. Johnston, Park. Ins. 364 ; or contradictory to itself, Mayne v. Walter, Park. 363. And see the case of Burton v. Fitzgerald, Stra. 1078. — Note by Thom.as Leach. Note. — " When a tribunal, no matter whether in England or a foreign country, has to determine between two parties, and between them only, the decision of that tribunal, though in general binding between the parties and privies, does not affect the rights of third parties ; and if in execution of the judgment of such a tribunal process issues against the property of one of the litigants, and some particular thing is sold as being his property, there is nothing to prevent any third person setting up his claim to that thing, for the tribunal neither had jurisdiction to determine, nor did determine, any- thing more than that the litigant's property should be sold, and did not do more than sell the litigant's interest, if any, in the thing. All proceedings in the courts of common law in England are of this nature, and it is every day's experience that where the sheriff, under a, fieri facias against A, has sold a particular chattel, B may set up his claim to that chattel either against the sheriff or the purchaser from the sheriff. And if this may be done in the courts of the country in which the judgment was pronounced, it follows, of course, that it may be done in a foreign country. But when the tribunal has jujisdiction to determine not merely on the rights of the parties, but also on the disposition of the thing, and does in the exercise of that jurisdiction direct that the thing, and not merely the interest of any particular party in it, be sold or transferred, the case is very different. " It is not essential that there should be an actual adjudication on the status of the thing. Our courts of admiralty, when property is attached and in their hands, on a proper case being shown that it is perishable, order that it shall be sold and the proceeds paid into court to abide the event of the litigation. It is almost essential to justice that such a power should exist in every case where property, at all events perish- able property, is detained." Per Blackburn, J., in Oastrique v. Imrie, L. E. i H. L. 414, 427, 428 (1870). See Megee v. Beirne, 39 Pa. 50. 30 GKIFFITH V. FOWLEB. Tracy &adi Converse, for plaintiff. J. S. iS/arcy, for defendant. The opinion of the court was delivered by Eedfield, J; The only question reserved in this case is, whether a title to personal property, acquired by purchase at sheriff's sale, is absolute and indefeasible against all the world, or whether such sale only conveys the title of the debtor. There has long been an opinion, verj' general, I think, in this state, not only among the profession, but the people, that a purchaser at sheriff's sale acquires a good title, without reference to that of the debtor, that such a sale, like one in market overt in England, convej's an absolute title. But, upon examination, I am satisfied that this opinion acts upon no good basis. So far as can now be ascertained, this opinion, in this state, rests mainly upon a dictum in the case of Seacock v. Walker, 1 Tyl. 338. There are many reasons, why this dictum should not be regarded, if the matter were strictly res integra. It was a declaration of the chief justice in charging the jury. Cases were then tried by the jury at the bar of this court, as matter of right, and in course, and before the law of the case liad been discussed and settled by the court In all these respects these trials differed essentially from jury trials at the bar of the higher courts in Westminster Hall. Such trials, there, being only matter of favor, granted in the most important cases, and after the law of the cases has been fully discussed, and settled by the court. The law given to the jury, in the two cases, will of course partake something of the character of the respective form and deliberation of the trials. Under our former practice, law laid down in the course of a jury trial, unless when questions were reserved and farther discussed upon motions for new trials, was not much esteemed, even when it was upon the verj^ point in dispute. But especially, the dicta of the judge, who tried the case, and who must, of necessity, somewhat amplify the bare text of the law, in order to show the jury the reason upon which it was based, could not be esteemed, as any thing more than the hastilj' formed opinion of the judge — mere argument, to satisfy some possible, or apprehended, doubt of the jury in regard to the soundness of the main proposition laid down. Such was the dictum, referred to. That, which was said of Chief Justice Tilghman, of Pennsylvania, is undoubt- edly good praise, when said of any judge ; — "He made no dicta, and he regarded none.'' There are sufficient reasons, why the dictum should not be regarded, if the thing were new. And we do not esteem the long standing of the dictum of any importance, unless it can be shown, that it has thus grown into a generally received and established law, or usage ; which, we think, is not the case in regard to this. For this court has, within the last ten years, repeatedly held, that a sheriff's sale was of no validity to pass any but the title of the debtor, when no actual delivery of the thing sold was made iy the sheriff, at the time of sale. Austin v. Tilden et al., 14 Vt 325 ; JBoynton v. Kelsey, GRIFFITH V. FOWLEE. 31 Caledonia County, 1836 ; s. p. Lamoille County, 1841. Since the first of these cases was decided, the main question, involved in this case, has been considered doubtful in this state, and we now feel at liberty to decide it, as we think the law should be, that is, as it is settled at common law. But the idea, that some analogy existed between a sheriff's sale and a sale in market overt is certainly not peculiar to the late Chief Justice Tyler. This opinion seems at one time to have prevailed in Westmin- ster Hall, to some extent, at least ; for in the case of Farrant v. Thompson, 5 B. & A. 826, which was decided in the King's Bench in 1822, nearly twenty years later than that of Heacoch v. "Walker, one of the points raised in the trial of the case before Chief Justice Abbott was, that the title of the purchaser, being acquired at sheriff's sale, was good against aU the world, the same as that of a purchaser in m,arJcet overt. This point was overruled, and a verdict passed for the plaintiff, but with leave to move to set it aside, and to enter a nonsuit, upon this same ground, with one other. This point was ex- pressly argued by Sir James Scarlett, — who was certainly one of the most eminent counsel, and one of the most discriminating men of modern times, — in the King's Bench, and was decided by the court not to be well taken. Since that time I do not find, that the question has been raised there. It seems to be considered in Massachusetts, and in New York, and in many of the other states, that nothing analogous to markets overt in England, exists in this country. Dam,e v. Saldwin, 8 Mass. 518 ; Wheelwright v. DePeyster, 1 Johns. 480; 2 Kent, 324, and cases there cited. Nothing of that kind, surely, exists in this state, unless it be a sheriff's sale. And if the practice of holding sales in market overt conclusive upon the title existed in any of the states, it would be readily known. I conclude, therefore, that Chancellor Kent is well founded in his opinion, when he aflSrms, that the law of markets overt does not exist in this country. lb. It seems probable to me, that the idea of the conclusiveness of a sheriff's sale upon the title is derived from the effect of sales under condemnations in the exchequer, for violations of the excise or revenue laws, and sales in prize cases, in the Admiralty courts, either provis- ionally, or after condemnation. But these cases bear but a slight analogy to sheriff's sales in this country, or in England. Those sales are strictly judicial, and are merely carrying into specific execution a decree of the court in rem, which, by universal consent, binds the whole world. Something very similar to this exists, in practice, in those countries, which are governed by the civil law ; which is the fact in one of the American states, and in the provinces of Canada, and in most, if not all, the continental states of Europe. The property, or what is claimed to be the property, of the debtor is seized and libelled for sale, and a general monition served, notifying all having adversary claims to 32 GEIFPITH V. FOWLEE. interpose them before the court, by a certain day limited. In this respect the proceedings are similar to proceedings in prize courts, and in all other courts proceeding in rem. If no claim is interposed, the property is condemned, by default, and sold ; if such claims are made they are contested, and settled by the judgment of the court, and the rights of property in the thing are thus conclusively settled before the sale. But with us nothing of this character exists in regard to sheriff's sales. Even the right to summon a jury to inquire into conflicting claims de bene esse, as it is called in England, and in the American states, where it exists, has never been resorted to in this state. And in England, where such a proceeding is common, — Impey, 153 ; Dal- ton, 146 ; Farr et al. v. JVewman et al., 4 T. E. 621, — it does not ivail the sheriff, even, except to excuse him from exemplarj' damages. Zatkow V. Earner, 2 H. Bl. 437 ; Glassop v. Poole, 3 M. & S. 175. It is plain, then, that a sheriff's sale is not a judicial sale. If it were, no action could be brought against the sheriff, for selling upon execu- tion property not belonging to the debtor. With us an execution is defined to be the putting one in possession of that, which he has already acquired by judgment of law. Co. Lit. 154 a. (Thomas' Ed. 405.) But the judgment is of a sum in gross "to be levied of the goods and chattels of the debtor," which the sheriff is to find at his peril. The sale upon the execution is only a transfer, by operation of law, of what the debtor might himself trans- fer. It is a principle of the law of property, as old as the Institutes of Justinian, Ut nemo plus juris in alium, transferre potest, quam ipse habet. The comparison of sheriff's sales to the sale of goods lost, or estrays, in pursuance of statutory provisions, which exist in many of the states, does not, in my opinion, at all hold good. Those sales undoubtedly transfer the title to the thing, as against all claims of antecedent property in any one, if the statutory provisions are strictly complied with ; but that is in the nature of a forfeiture, and is strictlj' a proceed- ing in rem, wherein the finder of the lost goods is constituted the tribunal of condemnation. There being, then, no ground, upon which we think we shall be justi- fied in giving to a sheriff^ 's sale the effect to convey to the purchaser any greater title, than that of the debtor, the judgment of the court below is affirmed. BEYAN V. WEBMS. 33 SECTION V. SALE IN MARKET-OVEET. THE CASE OF MAEKET-OVERT. Newgate Sessions. 1595. {Beported 5 Go. 83 6.] At the sessions of Newgate now last past, it was resolved by Popham, Chief Justice of England, Anderson, Chief Justice of the Common Pleas, Sir Thomas Egerton, Master of the Rolls, the At- torney-General, and the court, that if plate be stolen and sold openly in a scrivener's shop on the market-day (as every day is a market-day in London except Sunday) that this sale should not change the prop- erty, but the party should have restitution ; for a scrivener's shop is not a market-overt for plate ; for none would search there for such a thing ; & sic de similibus, <&c. But if the sale had been openly in a goldsmith's shop in London, so that any one who stood or passed by the shop might see it, there it would change the propertj'. But if the sale be in the shop of a goldsmith, either behind a hanging, or behind a cupboard upon which his plate stands, so that one that stood or passed by the shop could not see it, it would not change the prop- erty : so if the sale be not in the shop, but in the warehouse, or other place of the house, it would not change the property, for that is not in market-overt, and none would search there for his goods. So every shop in London is a market-overt for such things only which, by the trade of the owner, are put there to sale ; and when I was Recorder of London, I certified the custom of London accordingly. Note, reader, the reason of this case extends to all markets-overt in England.^ SECTION VI. statute of limitations. BRYAN V. WEEMS. SCPEEME CotTRT OF ALABAMA, 1856. [Reported 29 Ala. 423.] Appeal from the chancery court of Dallas. Heard before the Hon. James B. Clark. 1 In the United States there are no markets-overt, Dame v. Baldwin, 8 Mass. 618, 521 ; Oriffiih v. Fowler, 18 Vt. 390. 3 34 BKYAN V. WEEMS. The case made by the record may be thus stated: In December, 1831 , Simmons Harrison, of the county of Jones in North Carolina, there executed a deed of gift, conveying certain slaves to one William H. Green, his heirs, executors, and administrators, in trust for the sole and separate use, benefit, and behoof of Mrs. Mary R. Bush, who was the daughter of said Harrison and the wife of Nathan B. Bush, during her life ; and after her death, for the use, benefit, and behoof of her children by the said Nathan B. Bush, and their heirs forever. Soon after the execution of this deed. Bush and his wife removed to this State, and brought with them the slaves conveyed by the deed. Mrs. Bush died in 1837, leaving three children, Holland, Mary, and Penelope. The slaves remained in the possession of said Nathan B. Bush until his death which happened in 1844, at which time he had acquired several others by his industry and economy, and by the services of the slaves conveyed by the deed. By his last will and testament, which was duly admitted to probate, and of which one Alexander Sledge was the executor, said Bush bequeathed all the slaves then in his possession, including those conveyed by the deed, with the increase of the females, to his three daughters, but not in equal portions — the bequest to Pe- nelope being larger than the others. The executor proved the will, took possession of all the property, proceeded to a settlement of the estate, and delivered the slaves to the respective legatees. After the death of said Bush, his daughter Holland married Frederic B. Bryan ; Mary married Thomas J. McQueen ; and Penelope, the youngest, married Samuel W. Weems. In August, 1850, Mrs. Weems died, having be- queathed all her property to her said husband, who afterwards proved her will, and took possession of all her slaves and other property. In December, 1850, Mr. and Mrs. Bryan, with Mary Bush, who was then unmarried, filed their bill against said Green, Weems and Sledge ; alleging their ignorance of the deed from Simmons Harrison until a short time previous to the filing of the bill ; and asking that the said Sledge, as executor of Bush, might be made to account for the hire and services of the slaves during the life of his testator, and that the slaves might be divided between Mrs. Br}'an and Mrs. McQueen. The defendant Weems answered the bill, demurring for want of equity, and setting up the statute of limitations in defense of the suit. The answer also contains other matter, which is not deemed material. On final hearing, the chancellor held the statute of limitations a bar to the relief sought, and therefore dismissed the bill ; and his decree is now assigned as error. Wm. M. Byrd^ for the appellants. A. H, Manning^ contra. Stone, J. We are fully satisfied with the views of the chancellor, and the result which he attains on all the points necessary to a decision of this case. 1. However the rule might be, if the trustee in this case were ap- pointed by will (Hill on Trustees, 239) , his estate and interest did not BETAN V. "WEEMS. 35 terminate with the life of Mrs. Bush. The deed of Simmons Harrison conveyed the property to the trustee, " his heirs, executors, and ad- ministrators," . . . "in trust and for the following uses, interests, and purposes ; viz., in trust and for the separate and exclusive use and benefit of the said Mary R. Bush during her natural life, and in no wise , or manner to be subject or liable to or for the contracts or debts of the said husband, Nathan B. Bush ; and after her death, for the use, benefit and behoof of the children of the said Mary R. Bush by her present husband, the said Nathan B. Bush, and their heirs forever." There are no words in this deed, indicating an intention that the estate in fee, which the deed creates in the trustee, shall be cut down into a less estate. The estate of the trustee continued after the death of both Mrs. and Mr. Bush. Wykham v. Wyhham, 18 Vesey, 395 ; Coleman v. Tindall, Y. & J. 605 ; Jones v. Strongf, 6 Ired. 367 ; Murritt v. Wendley, 3 Dev. 399 ; Martin v. Prage, 4 B. Monroe, 524 ; Fry v. Smith, 2 Dana, 38. Our own decisions are not in conflict with this. In Smith v. Bud- die, 15 Ala. 28, the deed directed that at the death of the said Elizabeth H., the property, both real and personal, was to go to and be equally divided between the children. Elizabeth H. was dead ; and of course the estate of the trustee was an end. In Comhy v. McMichael, 19 Ala. 747, the deed directed the trustee to " convey the property to such of the issue " of the cestui que trust, as should be living at her death. Mrs. McMichael was dead ; and Cli. J. Dargan held, that the legal title of the trustee had determined, because the deed clearly contemplated that result. Couthway v. JBerghaus, 25 Ala. 393-406, simply decides that a ten- der in that case to the cestui que trust was sufficient. The trustee lived out of the State, and was a mere naked trustee without interest. The cestui que trust had himself made the purchase of the propert}', taking the title in the name of his sister ; while he, the beneficiary, was in possession of the property, receiving the rents and profits. The court rightly held, that the money was due to Berghaus, and that the tender to him was sufficient. 2. While Mr. Bush held the possession of the slaves, he must be re- garded as holding in subordination to the title of the trustee. His de- clarations to Mr. Green, and to Mr. Whitfield, shortly before his death, would establish this proposition, if it needed confirmation. A short time before the death of Mr. Bush, he expressed to the trustee an incli- nation and wish to make a will, and to make more ample provision for Penelope, who afterwards married Mr. Weems ; speaking of her as his " poor afflicted daughter." The testimony of Mr. Green, the trustee, who was examined as a witness, satisfies us that he. Green, knew of the making of a will by Bush, and its " general character," before such will was admitted to probate. This was, at least, enough to put him on in- quiry ; and is equivalent to notice. Smith v. Zurcher, 9 Ala. 208, and authorities cited. The bill, after stating that Mr. Bush executed his will and died in June, 1844, proceeds as follows : " Whereupon Alex- 36 BRYAU V. -WEEMS. ander Sledge, the executor named in said will, caused the same to be duly admitted to probate in the Orphans' Court of said county ; obtained letters testamentary upon said estate, from the same court ; undertook the execution of said will, and possessed himself as such executor as aforesaid of all the slaves and other personal property mentioned there- in." The will mentions all the slaves in controversy, except some chil- dren born since the probate, of females bequeathed by the will ; a part of which children are with their mothers in the possession of each lega- tee. The answer admits these averments, but states that the executor possessed himself of the property before the will was probated. These several facts constituted the executor an adverse holder, from and after the probate of the will, and possession of the property under it by him. From that time the statute commenced running against Green, the trustee. Findley v. Patterson, 2 B. Monroe, 76; Den, ex dem., V. Shanklin, 4 Dev. & Bat. Law, 289. 3. Between the time of the probate of the will of Mr. Bush, and the commencement of this suit, more than six years elapsed. The trustee was then barred of his action of detinue. The rule is certainly well settled, that if a trustee delay the assertion of his rights until the statute perfects a bar against him, the cestui que trust will also be barred. Colburn v. JBroughton, 9 Ala. 351-363 ; Ebvenden v. Lord Annesley, 2 Sch. & Lef. 628-629 ; Angell on Limitation, 514, § 6 ; Bondv. Hopkins, 1 Sch. & Lef. 429 ; Freeman v. Perry, 2 Dev. Eq. 243 ; Couch v. Couch, 9 B. Monroe, 160 ; Falls v. Torrence. 4 Hawks' Law & Eq. 412. 4. It wiU. be seen that we have assimilated the complainant's right to relief in this case to the trustee's right to maintain detinue. If, at the time the bill in this case was filed, Green, the trustee, had instituted his action of detinue or trover for the slaves, against Sledge, the executor, the six years statute, if pleaded, would have barred either action, not only as to the slaves bequeathed by the will, but also as to the offspring of the females, born after the adverse holding. Morris v. Perregay, 7 Gratt. 373 ; White v. Martin, 1 Porter, 215. When defendant's right to property is established by a successful in- terposition of the plea of the statute of limitations, it relates back to the time of the first taking, and canies with it all the intermediate profits, and the increase of the females while in the adverse possession of such defendant, unless, as to such increase, some act be done before the bar against recovery of the mother is perfected, which prevents the operation of this rule. Partus sequitur ventrem. To hold otherwise, would lead to strange results in the case of female slaves. An adverse holding of six years would vest the title in the holder. During the time she was adversely held, she may, at intervals, have given birth to children ; she and the children all the time remaining together, out of the possession of the claimant. She may have given birth to an infant within a very short time before the completion of the six years. According to the argument, all claim to the mother would be forfeited, while to bar FEARS V. SYKES. 37 the right to recover her child would require another period of near six years. Another illustration may serve to present this argument in a stronger light. Suppose the property adversely held consist of domestic animals, who multiply at an early age, and rapidlj-. Before the six years expire, the females, in all probability, will have increased abundantly ; and per- haps at no point of coming time, will there be a female that has reached the age of six j-ears, without yielding her increase. If the offspring do not follow the mother as an incident, but each successive scion must it- self be adversely held for the term of six years before the statute runs, unless, before its birth, the parent stock had existed and been adversely held for a like period, the entire interest of the former owner would not probably be extinguished in any conceivable number of years. This point was not raised in argument ; but we have felt it our duty to notice it, as the court is not unanimous. The claim for hire, and for profits of the labor of the slaves, while in the possession of Mr. Bush, is barred both by lapse of time, and by the statute of non-claim. Under these principles, the right of complainants is barred. Whether Mr. Bush, or those claiming under him, can set up fraud in the original deed to Mr. Harrison, and from htm to Mr. Green in trust, we need not inquire. See Walton v. £onham, 24 Ala. 513 ; Twine's Case, 3 Eep. 83 •, Roberts on Conveyances, 10-11. The decree of the chancellor is affirmed. FEARS, Admr. v. SYKES. High Court of Errors of Mississippi. 1858. [Reported 35 Miss. 633.] Error to the Circuit Court of Monroe County. Hon. William Cothran, judge. Locke E. Houston, for plaintiff in error. O. Sykes, for defendant in error. Handy, J., delivered the opinion of the court. This action was brought by the plaintiff in error to recover from the defendant a female slave in his possession, alleged to be the property of the plaintiff's intestate. It appears, by the record, that the slave in controversy had been the property of one John Chism, in the State of Alabama, prior to, and during, the year 1839, and, on the 16th September of that year, that Chism executed a bill of sale for her to the plaintiff's intestate, Hansford J. Fears ; that, on the 12th October of the same year, Chism executed a bill of sale for the slave, for a valuable consideration, to one Lewis G. Garrett, who, during that year, had her in open and public posses- 38 FBAES V. SYKES. sion in the State of Alabama, and continued in possession there until August, 1853, when he sold her to the defendant for a valuable con- sideration, -who brought her to this State, and has since continued in possession. There is some evidence tending to show that, when Chism sold the slave to Garrett, he took her from the possession of Fears without authority, and delivered her to Garrett, and that Fears was desirous of regaining possession of her, but was unable to find where she was. Yet it is fully proved that Garrett had her in open and notorious possession, in a hotel kept by him in the town of Tuscumbia, in Alabama, for the greater part of the time when he owned her, claiming title to her. It is further shown, that the plaintiff's intestate removed to this State in the year 1842 or 1843. The decision of the case, under this state of facts, depends upon the question whether Garrett acquired a good title in virtue of his adverse possession in the State of Alabama, which is available to the defendant. It is true that the Statute of Limitations of another State is not technically pleadable as a defence to a demand sued for in the courts of this State, because the defence of such statute strictly pertains to the lex fori; though to this rule there may be exceptions. Yet, where title to personal property has been acquired under the laws of another State, by reason of possession held by a party for such length of time as, under those statutes, renders his title unimpeachable, such title may be shown in this State, and will be available to the party having such possession for the requisite time, and those claiming under him. In such case, it is not the Statute of Limitations of another State that is relied on, or pleaded, but the title acquired by operation of such statute ; and, when a title becomes perfect under the laws of one State, it is valid in anj' other State. Slielby v. Gay, 11 Wheat. 362 ; Moseby v. Williams, 5 How. 520-.523. It appears to be the settled law of Alabama, that the Statute of Limita- tions of that State, which bars the remed3' for the recovery of personal property, also acts upon the title, and destroys the right of the party setting up claim against the person in possession. Sinis v. Canjield, 2 Ala. 555 ; Lay's JSxor. v. Lawson, 23 Ala. 377. Hence, it is clear that the title of Garrett could not be questioned by the plaintiff, after a possession in Alabama for about fourteen years. Nor is the question affected by the fact, that Fears removed to this State, before the bar had become complete by the possession of Garrett for the time prescribed by the statute. Garrett continued to reside there, and had the slave in possession, and could have been sued there at any time, notwithstanding the removal of Fears ; and it is this which bars the remedy, and vests the right in the possessor, whether the person setting up title against the possessor resided there or not. The non-residence of the claimant does not appear tb be enumerated as one of the exceptions in the statute, and there can be no reason why it should be allowed, especially when he was a resident of the State when the adverse possession commenced, and so continued for several years. MILLER V. DEUO. 39 But it is insisted that it was a sufficient answer to the title of Garrett, arising from the Statute of Limitations, that Chism took the slave from the possession of the plaintiff's intestate fraudulently, and carried her away secretly, so that she could not be found. However these considerations might have operated in an action by the plaintiff against Chism, if the slave had been in his possession, they can have no effect upon the title of Garrett, or of the defendant derived from him. For aught that is alleged, Garrett had no connection with the fraudulent taking, or the concealment, of the slave ; but he appears to have purchased her fairly and for full value, and to have had her in his possession in a very public manner. The remedy of the plaintiff's in- testate against him was open, and in no wise obstructed, during all the period of his possession. His title, therefore, could not be affected by the fraud of Chism, and it became unimpeachable after his possession had continued for the period of six years, prescribed by the statute of Alabama. That title was conveyed to the defendant, and constituted an ample defence to his action. Lei the judgment be affirmed. MILLER V. DELL. CouET OF Appeal. 1891. [Reported [1891] 1 Q. B. 468.] Application by the plaintiff to set aside the judgment entered for the defendant at the trial before Charles, J., and a common jur^-, and to enter judgment for the plaintiff or for a new trial. The facts were as follows : The plaintiff was the owner of the lease of a house used by him as a refreshment house; the plaintiff's son managed the business for him, and there was an agreement between the plaintiff and his son for an assignment of the lease to the latter upon certain conditions ; the conditions, however, were not performed, and the son never became entitled to have an assignment of the lease made to him. In 1881, more than six years before the commencement of this action, the plaintiff's son, without the knowledge or consent of the plaintiff, deposited the lease with one Bates to secure an advance of 150^., and signed an ordinary memorandum of deposit containing an agreement to execute a legal mortgage of the premises if and when called upon. "Within six years of the commencement of the present action Bates became bankrupt, and in 1889 the trustee under his bank- ruptcy sold his business to the defendant, including the debt of 150^., and handed over to him the lease which had been deposited as security. Subsequently the plaintiff demanded the return of the lease from the defendant, and upon his refusal to give it up commenced this action for 40 MILLER V. DELL. detinue and conversion of the lease, to which the defendant pleaded the Statute of Limitations (21 Jac. 1, c. 16). At the trial the learned judge, acting upon the authority of Wilkinson v. Verity, Law Rep. 6 C. P. 206, held that the action was barred by the statute, and directed judgment to be entered for the defendant. LoKD EsHER, M.R. This is an action for wrongful conversion or detinue of a lease. Whatever the defendant did in regard to the lease, whether his acts amounted to detinue or conversion, is immaterial, for in either case it was within six years of the commencement of this action, and if there were nothing more, the Statute of Limitations would be no bar to the plaintiff's claim against the defendant. But what the defendant relies on is that Bates converted this lease to his own use more than six years ago, and it is contended that this was the first wrongful conversion, and that the statute runs from the time when that first wrongful conversion occurred. The case of Wilkinson v. Verity, Law Rep. 6 C. P. 206, was cited in support of this contention at the trial before Charfes, J., and especial reliance was placed on a pas- sage in the judgment of Willes, J. (at p. 209), who says : "It is a gen- eral rule that, where there has once been a complete cause of action arising out of contract or tort, the statute begins to run, and that sub- sequent circumstances which would but for the prior wrongful act or default have constituted a cause of action are disregarded." But it is plain that Willes, J., was there dealing with a case in which the defend- ant himself and nobody else was charged with the wrongful detention. The defendant himself was the sole wrongdoer, and the language of the passage relied upon, though general in its terms, must be applied to such circumstances as those in that case. Moreover, Willes, J., immediately goes on to give the following illustration : " As for instance, in the case of a bill of exchange drawn at so many months after sight, and refused acceptance, the cause of action is complete, and the statute begins to run upon the refusal of acceptance, and no new cause of action arises upon refusal of payment " — language which shows that what he meant was, that where there was a valid cause of action against the defend- ant by the plaintiff, the statute began to run from the time when that cause of action arose. In the present case, it is sought on behalf of the defendant to extract from that decision this doctrine — that if one man is guilty of a wrong- ful conversion, and afterwards a second man is guiltj' of a wrongful conversion of the same thing, then the cause of action against the second man is barred by the statute if the cause of action against the first man accrued more than six years before action, although the conversion in respect of which the second man is sued may have occurred within the six years, or indeed within six months. It is said that to hold otherwise would be contrary to reason and natural law; that is to say, that because the legislature, in order to prevent litigation after a certain period, has said that no action shall lie against A. in respect of an act done by him more than six years before action brought, therefore B. ACCESSION. 41 cannot be sued in respect of an act done by him within the six j'cars. To me that proposition seems contrary to reason ; but whether it be so or not, I am of opinion that in the present case the Statute of Limi- tations does not apply ; it applies only to an action brought against the defendant in respect of a wrongful act done by the defendant himself. The property in chattels, which are the subject-matter of this action, is not changed by the Statute of Limitations though more than six years may elapse, and if the rightful owner recovers them the other man can- not maintain an action against him in respect of them. I think that the effect of the judgment in Wilkinson v. Verity, Law Eep. 6 C. P. 206, was misconceived by the learned judge, and that that case is no au- thority in favor of the defendant. The other case which was cited to us, that of Spackman v. Foster, 11 Q. B. D. 99, seems to be applicable to the present, especially upon the point that a lease, being a document of title, is not a mere chattel, and that therefore where title deeds are fraudulently taken from the rightful owners and deposited with a third person, until demand and refusal to give up the deeds to the real owners they have no right of action against the third person against which the statute would run. "Whether the statute would run to prevent a person rightfully in pos- session of land getting back his documents of title more than six years after their conversion, is a question which would require consideration, and I do not say that he could not get them back though they had been wrongfully held for more than six years. This appeal must be allowed, and judgment entered for the plaintiff.^ SECTION VII. ACCESSION. Inst. 2, 1 (25, 26, 33, 34). "When any one has converted another person's property into a new form, the question is often asked, which of them is the owner thereof on natural principles ; whether the man who made the thing, or rather he who was previously the owner of the substance : for example, when any one has made wine or oil or corn from the grapes or olives or ears of another, or made any vessel of another's gold or silver or copper, or compounded mead of another's wine or honey, or made a plaster or eye-salve of another's drugs, or a garment of another's wool, or a ship or chest or seat out of another's planks. And after many controversies between the Sabinians and 1 The opinions of Lopes and Kat, L.JJ., concurring, are omitted. On the subject of "tacking" successive holdings in order to make up the statutory period, see 3 Harv. Law Rev. 313, 318, 321 ; Beadle v. Hunter, 3 Strobh. 331 ; Chapin V. Freeland, 142 Mass. 383. 42 ACCESSION. Proculians, the middle view has been approved, held by those who think that if the new form can be reconverted into its materials, that man is to be regarded as owner who was originally owner of the mate- rials ; but that if it cannot be reconverted, the other who made it is to be regarded as owner : for example, a vessel made by casting can be reconverted into the rough mass of copper or silver or gold ; but wine or oil or corn cannot be returned into grapes or olives or ears, neither can mead be resolved into wine and honey. But when a man has cre- ated a new form out of materials partly his own and partly another's, for instance, when he has compounded mead out of his own wine and another person's honey, or a plaster or eye-salve out of his own drugs and those of other people, or a garment out of wool partly his and partly another's, in such a case there is no doubt that the maker is the owner ; since he has not only given his labour, but provided also a por- tion of the materials of the article. If, however, any one has interwoven with his own garment purple thread which belongs to another person, the purple thread, though the more valuable, accrues to the garment as an accessory ; and the former owner of the purple thread has an action of theft and a condiction against the man who stole it, whether the latter or another person be the maker of the garment : for although things that have ceased to ex- ist cannot be recovered by vindication, yet a condiction lies for them against thieves and certain other possessors. Writing too, even if of gold, is as much an accessory to the paper or parchment, as buildings or crops are an accessory to the soil: and therefore, if Titius have written on j'our paper a poem, a history, or an oration, you, and not Titius, are regarded as the owner of the sub- stance. But if you claim from Titius your books or parchments, and do not offer to pay the expense of the writing, Titius can defend him- self by plea of fraud, at any rate if he obtained possession of the paper or parchment in good faith. If any man have painted upon another's tablet, some think that the tablet is an accessory to the picture : whilst others hold that the pic- ture, however valuable it may be, is an accessory to the tablet. But to us it seems better that the tablet should be an accessory to the picture ; for it is absurd that a picture by Apelles or Parrhasius should go as an accessory to a paltiy tablet. Hence, if the owner of the tablet be in possession of the picture, and the painter claim it from him, but refuse to pay the price of the tablet, he can be met by the plea of fraud. But if the painter be in possession, it follows that the owner of the tablet will be allowed an utilis actio against him : although in such case, un- less he pay the expense of the painting, he can be met by the plea of fraud, at any rate if the painter took possession in good faith. For it is clear that if the painter or any one else stole the tablet, the owner thereof has an action of theft. ANONYMOtrS. 43 ANONYMOUS. 1489. IS^orted Tear-Book, 5 Hen. FIT. 15, pt. 6.] A WRIT of trespass was brought for the taking of so many slippers and shoes, and the defendant said that he was possessed of so many- dickers of leather, and delivered them to one J. S., who gave them to the plaintiff; and afterwards the plaintiff made the slippers and shoes and boots, and the defendant came and took them as he well might. Judgment if the action lay. . . .^ [The plaintiff] moved the court that this plea, that the defendant could take them back, was not good ; but by the making of shoes and boots, &c., the property was altered, because they were now of another nature. As if one takes barley or grain and makes malt of it, he from whom the grain was taken cannot take the malt, because the chattel is changed into another nature. And so it is if trees are taken, and out of them a house is made, he from whom the trees were taken cannot tear down the house and take them back, and so other chattels are joined together with it. For where a chattel is taken with force, and no other chattel is joined or mixed with it, and it is not altered into another nature, the partj' can take it. So if one takes a tree, and squares it with an axe, now the party can take it, because it is not altered into another nature, nor is any other chattel mixed with it or joined to it ; but if a man takes silver, and then makes a piece of it, or takes a piece of silver and has it gilt with gold, in this case the party cannot take it ; and so here the leather is mixed with thread, and there- fore the party cannot take it ; and so it seems that the plea is not good. And the court holds the contrary clearly. And as to the cases of grain taken and malt made from it, the party cannot take it, because the grain cannot be known. And so it is with pennies or groats, and a piece made of them, it cannot be taken, because of the pennies one can- not be known from another. And so if one takes a piece, and strikes pennies from it at the mint, the party cannot take the pennies, because the pennies cannot be known one from another; and so in all like cases. And also in the case of the building of a house, now the timber is altered, for now it is freehold, and for this reason he cannot take it ; but in everj' case where the chattels themselves can be known, there the party can take them, notwithstanding that some chattel is joined or mixed with them. As if one takes a piece of cloth and makes a coat for himself, the part}' can take it back well enough, because it is the same chattel and not at all altered ; and so it is in the case put, if one cuts a tree and squares it, the party can take it well enough, because the tree can be known well enough notwithstanding. And so it is of iron, where a smith makes of it a bar, &c. And so it was held by all the court. Wherefore the plaintiff replied, for that matter appeared. 1 A part of the case relating to a point of pleading is omitted. 4i SILSBUET V. M'COON. SILSBURY V. McCOON. Supreme Couet op New York. 1844, 1847. Coijet for the Cob- RECTioN OF Errors. 1850. [Seported 6 Hill, 425 ; i Denio, 332 ; 3 Comst. 379.] Trover for a quantity of whisky, tried at the Montgomery circuit in May, 1843, before Willard, C. Judge. The facts proved by the plain- tiffs to establish their title to the whisky were as follows : On the 18th of February, 1842, the sheriff of Montgomery levied on five hundred bushels of gi-ain by virtue of a fl. fa. against one Wood in favor of Eldert Tj-mason. The grain was in Wood's distillery at the time, having been purchased by him with a view of manufacturing it into whisky, and the sheriff did not remove it. Shortly after the levy, the plaintiffs, who it seems succeeded Wood in the possession of the dis- tillery, converted the grain into whisky. When the sheriff went to the distillery for the purpose of selUng, he was informed by Silsburj', one of the plaintiffs, that they had converted the grain into whisky, and were willing to pay for it ; but no terms were then agreed upon. On the 10th of March, 1842, the plaintiffs gave their note to the sheriff for the grain, allowing him fifty cents per bushel ; and Tymason afterwards accepted the note as so much paid upon the fl. fa. The whisky in question was a part of that which the plaintiffs had manufactured from the grain levied on by the sheriff. The defence was as follows : On the 25th of February, 1842, after the whisky in question had been manufactured by the plaintiffs, it was seized by one of the deputies of the sheriff of Montgomery, by virtue of a fl. fa. issued against Wood, in favor of the defendants. The deputy sold the whisky on the 23d of March following, and it was bid in by the defendants. It appeared that the sheriff was informed of the levy made under the defendants' fl. fa., before he settled with the plaintiffs for the grain. The defendants moved for a nonsuit, insisting that the plaintiffs acquired no title to the whisky by their compromise with the sheriff. The circuit judge ordered a nonsuit, and the plaintiffs now moved for a new trial on a bill of exceptions. S. WilJceson,Jr., for the plaintiffs. N. mU, Jr., for the defendants. £y the Court, Nelson, Ch. J. Even conceding that the settlement with the sheriff for the taking and conversion of the grain was inopera- tive, (which I should not be willing to admit, if made in good faith,) still, a decisive answer to the defence is, that the identity of the grain was destroyed by the act of manufacturing it into whisky, and the propertj' in the new article vested in the plaintiffs. The doctrine on this subject is stated by Blackstone as follows : "By the Roman law, if any given corporeal substance received afterwards an accession by SILSBUET V. m'COON. 45 natural or by artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of ■wood or metal into vessels and utensils, the original owner of the thing was entitled by his right of possession to the property of it under such its state of improvement. But if the thing itself, by such operation, was changed into a diflferent species, as by making wine, oil, or bread, out of another's grapes, olives, or wheat, it belonged to the new opera- tor ; who was only to make a satisfaction to the former proprietor for the materials which he had so converted. And these doctrines are implicitly copied and adopted by our Bracton, and have since been confirmed by many resolutions of the courts." 2 Bl. Com. 404 ; and see Bro. Ab. tit. Property, 23 ; Moore, 20 ; Poph. 38 ; Vin. Ab. tit. Trespass, (H. a. 3,) pi. 8 ; Id. tit. Property (E.) pi. 5 ; Betts v. Zee, 5 Johns. Rep. 348 ; 2 Kent's Com. 364. The same doctrine was laid down in Brown y. Sax, 7 Cowen, 95. The court there said: "The rule, in case of a wrongful taking is, that the taker cannot, by any act of his own, acquire title, unless he either destroy the identity of the thing ; as bj' changing money into a cup, or grain into malt ; or annex- ing it to and making it a part of some other thing, which is the princi- pal ; or changing its nature from personal to real property ; as where it is worked into a dwelling-house." In the present case, the nature and species of the commodity was entirely changed and its identity destroj-ed ; as effectually, it seems to me, as by " making wine, oil, or bread, out of another's grapes, olives, or wheat." I think the circuit judge erred in nonsuiting the plaintiffs, and that they are entitled to a new trial. l^ew trial granted. On the second trial it was proved that one Hackney, a deputy of the sheriff of Montgomery county, on the 22d day of March, 1842, by vir- tue of a fi. fa. on a judgment in this court in favor of the defendants, against one Uriah "Wood, sold the whiskey in question, being about twelve hundred gallons, and worth $277.68, he having previously levied upon it ; and that upon the sale the defendants became the purchasers, and afterwards converted it to their own use. The whiskey was levied on and sold at the plaintiffs' distillery, and they forbade the sale. The plaintiffs having rested, the defendants offered to prove in their defence that the whiskey was manufactured from com belonging to Wood, the defendant in the execution ; that the plaintiffs had taken the corn and manufactured it into whiskey, without any authority from Wood ; and that they knew at the time they took it that it belonged to him. The plaintiffs' counsel objected to this evidence, insisting that Wood's title to the corn was extinguished by the conversion of it into whiskey. The judge sustained the objection and rejected the evidence, and the defendants' counsel excepted. Verdict for the plaintiffs. A motion is now made for a new trial, on a bill of exceptions. [A majority of the court (Bkonson, C. J., and Beardsley, J.) denied the motion for a new trial, Jewett, J., dissenting. The opinions are omitted.] 46 SILSBURY V. m'oOON. After judgment the defendants brought error to this Court [for the Correction of Errors] , where the cause was first argued bj' Mr. Sill, for the plaintiffs in error, and Mr. Reynolds, for the defendants in error, in September, 1848. The judges being divided in opinion, a re-argument was ordered, which came on in January last. N. Hill, Jr., for the plaintiffs in error. M. T. Reynolds for the defendants in error. Edggles, J. It is an elementary principle in the law of all civilized communities, that no man can be deprived of his property, except by his own voluntarj' act, or by operation of law. The thief who steals a chattel, or the trespasser who takes it by force, acquires no title by such wrongful taking. The subsequent possession by the thief or the trespasser is a continuing trespass ; and if during its continuance, the wrongdoer enhances the value of the chattel by labor and skill bestowed upon it, as by sawing logs into boards, splitting timber into rails, mak- ing leather into shoes, or iron into bars, or into a tool, the manufactured article still belongs to the owner of the original material, and he may retake it or recover its improved value in an action for damages. And if the wrongdoer sell the chattel to an honest purchaser having no notice of the fraud by which it was acquired, the purchaser obtains no title from the trespasser, because the trespasser had none to give. The owner of the original material may still retake it in its improved state, or he may recover its improved value. The right to the improved value in damages is a consequence of the continued ownership. It would be absurd to say that the original owner may retake the thing by an action of replevin in its improved state, and j'et that he maj' not, if put to his action of trespass or trover, recover its improved value in damages. Thus far, it is conceded that the common law agrees with the civU. They agree in another respect, to wit, that if the chattel wrongfully taken, afterwards come into the hands of an innocent holder who believing himself to be the owner, converts the chattel into a thing of different species so that its identity is destroyed, the original owner cannot reclaim it. Such a change is said to be wrought when wheat Is made into bread, olives into oil, or grapes into wine. In a case of this kind the change in the species of the chattel is not an intentional wrong to the original owner. It is therefore regarded as a destruction or con- sumption of the original materials, and the true owner is not permitted to trace their identity into the manufactured article, for the purpose of appropriating to his own use the labor and skill of the innocent occu- pant who wrought the change ; but he is put to his action for damages as for a thing consumed, and maj' recover its value as it was when the conversion or consumption took place. There is great confusion in the books upon the question what consti- tutes change of identity. In one case, (5 Hen. 7, fol. 15,) it is said that the owner may reclaim the goods so long as they may be known, or in other words, ascertained by inspection. But this in many cases is SILSBURY V. m'COON. 47 by no means the best evidence of identity ; and the examples put by way of illustration seiTe rather to disprove than to establish the rule. The court say that if grain be made into malt, it can not be reclaimed bj' the owner because it can not be known. But if cloth be made into a coat, a tree into squared timber, or iron into a tool, it may. Now as to the cases of the coat and the timber they may or may not be cap- able of identification by the senses merely; and the rule is entirely uncertain in its application ; and as to the iron tool, it certainly can not be identified as made of the original material, without other evidence. This illustration, therefore, contradicts the rule. In another case, (Moore's Kep. 20,) trees were made into timber and it was adjudged that the owner of the trees might reclaim the timber, "because the greater part of the substance remained." But if this were the true criterion it would embrace the cases of wheat made into bread, milk into cheese, grain into malt, and others which are put in the books as examples of a change of identity. Other writers say that when the thing is so changed that it can not be reduced from its new form, to its former state, its identity is gone. But this would include many cases in which it has been said by the courts that the identity is not gone ; aa the case of leather made into a garment, logs into timber or boards, cloth into a coat, &c. There is therefore no definite settled rule on this question ; and although the want of such a rule may create embarrass- ment in a case in which the owner seeks to reclaim his property from the hands of an honest possessor ; it presents no difficulty where he seeks to obtain it from the wrongdoer ; provided the common law agrees with the civil in the principle applicable to such a case. The acknowledged principle of the civil law is that a wilful wrong- doer acquires no property in the goods of another, either by the wrong- ful taking or by any change wrought in them by his labor or skill, however great that change may be. The new product, in its improved state, belongs to the owner of the original materials, provided it be proved to have been made from them ; the trespasser loses his labor, and that change which is regarded as a destruction of the goods, or an alteration of their identity in favor of an honest possessor, is not so regarded as between the original owner and a wilful violator of his right of property. These principles are to be found in the digest of Justinian. (Lib. 10, tit. 4, leg. 12, § 3.) " If any one shall make wine with my grapes, oil with my olives, or garments with my wool, knowing they are not his own, he shall be compelled by action to produce the said wine, oil or garments." So in Vinnius' Institutes, tit. 1, pi. 25. " He who knows the material is another's ought to be considered in the same light as if he had made the species in the name of the owner, to whom also he is to be understood to have given his labor." The same principle is stated by Puffendorf in his Law of Nature and of Nations, (b. 4, ch. 7, § 10) and in Wood's Institutes of the Civil Law, p. 92, which are cited at large in the opinion of Jewett J. delivered in 48 SILSBTJEY V. M'COON. this case in the Supreme Court. (4 Denio, 338,) and which it is un- necessary here to repeat. In Brown's Civil and Admiralty Law, p. 240, the writer states the civil law to be that the original owner of any thing improved by the act of another, retained his ownership in the thing so improved, unless it was changed into a different species ; as if his grapes were made into wine, the wine belonged to the maker, who was only obliged to pay the owner for the value of his grapes. The species however must be incapable of being restored to its ancient form ; and the materials must have been taken in ignorance of their being the property of another. But it was thought in the court below that this doctrine had never been adopted into the common law, either in England or here ; and the distinction between a wilful and an involuntary wrongdoer hereinbefore mentioned, was rejected not only on that gronnd but also because the rule was supposed to be too harsh and rigorous against the wrongdoer. It is true that no case has been found in the English books in which that distinction has been expressly recognized ; but it is equally true that in no case until the present has it been repudiated or denied. The common law on this subject was evidently borrowed from the Roman at an early day ; and at a period when the common law furnished no rule whatever in a case of this kind. Bracton, in his treatise compiled in the reign of Henry III., adopted a portion of Justinian's Institutes on this subject without noticing the distinction ; and Blackstone, in his Commentaries, vol. 2, p. 404, in stating what the Roman law was, follows Bracton, but neither of these writers intimate that on the point in question there is any difference between the civil and the common law. The authorities referred to by Blackstone in support of his text are three only. The first in Brooks' Abridgment, tit. Property 23, is the case from the Year Book, 5 H. 7, fol. 15, (translated in a note to 4 Denio, 335,) in which the owner of leather brought trespass for taking slippers and boots, and the defendant pleaded that he was the owner of the leather and bailed it to J. S. who gave it to the plaintiff, who manu- factured it into slippers and boots, and the defendant took them as he lawfully might. The plea was held good and the title of the owner of the leather unchanged. The second reference is to a case in Sir Francis Moore's Reports, p. 20, in which the action was trespass for taking tim- ber, and the defendant justified on the ground that A entered on his land and cut down trees and made timber thereof, and carried it to the place where the trespass was alledged to have been committed, and afterwards gave it to the plaintiff, and that the defendant therefore took the timber as he lawfully might. In these cases the chattels had passed from the hands of the original trespasser into the hands of a third person ; in both it was held that the title of the original owner was unchanged, and that he had a right to the property in its improved state against the third person in possession. They are in conformity with the rule of the civil law ; and certainly fail to prove any difference between the civil and the common law on the point in question. The SILSBURY V. M'COON. 49 third case cited is from Popbam's Reports, p. 38, and was a case of con- fusion of goods. Tlie plaintiff voluntarily mixed liis own hay with the hay of the defendant, who carried the whole away, for which he was sued in trespass ; and it was adjudged that the whole should go to the defendant ; and Blackstone refers to this case in support of his text, that " our law to guard against fraud gives the entire property, without any account to him whose original dominion is invaded and endeavored to be rendered uncertain without his own consent." The civil law in such a case would have required him who retained the whole of the mingled goods to account to the other for his share, (Just. Inst. lib. 2, tit. 1, § 28 ;) and the common law in this particular appears to be more rigorous than the civil ; and there is no good reason why it should be less so in a case like that now in hand, where the necessity of guarding against fraud is even greater than in the case of a mingling of goods, because the cases are likely to be of more frequent occurrence. Even this liability to account to him whose conduct is fraudulent, seems by the civil law to be limited to cases in which the goods are of such a nature that they may be divided into shares or portions, according to the original right of the parties ; for by that law if A obtain by fraud the parchment of B, and write upon it a poem, or wrongfully take his tablet and paint thereon a picture, B is entitled to the written parch- ment and to the painted tablet, without accounting for the value of the writing or of the picture. (Just. Inst. lib. 2, tit. 1, §§ 23, 24.) Neither Bracton nor Blackstone have pointed out any difference except in the case of confusion of goods between the common law and the Roman, from which on this subject our law has mainlj- derived its principles. So long as property wrongfully taken retains its original form and substance, or maj' be reduced to its original materials, it belongs, ac- cording to the admitted principles of the common law, to the original owner, without reference to the degree of improvement, or the addi- tional value given to it by the labor of the wrongdoer. Naj' more, this rule holds good against an innocent purchaser from the wrongdoer, although its value be increased an hundred fold by the labor of the purchaser. This is a necessary consequence of the continuance of the original ownership. There is no satisfactory reason why the wrongful conversion of the original materials into an article of a different name or a different species should work a transfer of the title from the true owner to the trespasser, provided the real identity of the thing can be traced by evi- dence. The diflSculty of proving the identitj'^ is not a good reason. It relates merely to the convenience of the remedy, and not at all to the right. There is no more difficulty or uncertainty in proving that the whisky in question was made of Wood's corn, than there would have been in proving that the plaintiff had made a cup of his gold, or a tool of his iron ; and yet in those instances, according to the English cases, the proof would have been unobjectionable. In all cases where the new product can not be identified by mere inspection, the original material 4 50 SILSBUEY V. M'cooiir. must be traced by the testimony of witnesses from hand to hand through the process of transformation. Again. The coui-t below seem to have rejected the rule of the civil law applicable to this case, and to have adopted a principle not hereto- fore known to the common law ; and for the reason that the rule of the civil law was too rigorous upon the wrongdoer, in depriving him of the benefit of his labor bestowed upon the goods wrongfully taken. But we think the civil law in this respect is in conformity not only with plain principles of morality, but supported by cogent reasons of public policy ; while the rule adopted by the court below leads to the absurdity of treating the wilful trespasser with gi'eater kindness and mercy than it shows to the innocent possessor of another man's goods. A single example may suffice to prove this to be so. A trespasser takes a quantity of iron ore belonging to another and converts it into iron, thus changing the species and identity of the article : the owner of the ore ma}' recover its value, in trover or trespass ; but not the value of the iron, because under the rule of the court below it would be unjust and rigorous to deprive the trespasser of the value of his labor in the trans- mutation. But if the same trespasser steals the iron and sells it to an innocent purchaser, who works it into cutlery, the owner of the iron may recover of the purchaser the value of the cutlery, because by this process the original material is not destroyed, but remains, and may be reduced to its former state ; and according to the rule adopted by the court below as to the change of identity the original ownership remains. Thus the innocent purchaser is deprived of the value of his labor, while the guilty trespasser is not. The rule adopted by the court below seems, therefore, to be objec- tionable, because it operates unequally and unjustly. It not only divests the true owner of his title, without his consent ; but it obliterates the distinction maintained by the civil law, and as we think by the common law, between the guilty and the innocent; and abolishes a salutary check against violence and fraud upon the rights of property. We think, moreover, that the law on this subject has been settled by judicial decisions in this country. In Betts v. Lee, 5 John. 349, it was decided that as against a trespasser the original owner of the prop- erty may seize it in its new shape, whatever alteration of form it may have undergone, if he can prove the identity of the original materials. That was a case in which the defendant had cut down the plaintiffs trees, and made them into shingles. The property could neither be identified by inspection, nor restored to its original foiTn ; but the plaintiff recovered the value of the shingles. So in Curtis v. Grroat, 6 John. 169, a tresspasser cut wood on another's land and converted it into charcoal. It was held that the charcoal still belonged to the owner of the wood. Here was a change of the wood into an article of different kind and species. No part of the substance of the wood remained in its original state ; its identitj' could not be ascertained by the senses, nor could it be restored to what it originally was. That SILSBURY V. M'oOON. 61 case distinctly recognizes the principle that a wilful trespasser can not acquire a title to property merely by changing it from one species to another. And the late Chancellor Kent, in his Commentaries, (Vol. 2, p. 363,) declares that the English law will not allow one man to gain a title to the property of another upon the principle of accession, if he took the other's property wilfully as a trespasser : and that it was settled as early as the time of the Year Books, that what- ever alteration of form anj' propertj' had undergone, the owner might seize it in its new shape, if he could prove the identity of the original materials. The same rule has been adopted in Pennsylvania. Snyder v. Vaux, 2 Rawle, 427. And in Maine and Massachusetts it has been applied to a wilful intermixture of goods. Ryder v. Hathaway, 21 Pick. 304, 5; Wingate v. Smith, 7 Shep. 287; Willard v. Bice, 11 Mete. 493. "We are therefore of opinion that if the plaintiffs below in converting the corn into whisky knew that it belonged to Wood, and that they were thus using it in violation of his right, they acquired no title to the manufactured article, which although changed from the original material into another of different nature, yet being the actual product of the corn, still belonged to Wood. The evidence offered by the defendants and rejected by the circuit judge ought to have been admitted. The right of Wood's creditors to seize the whisky by their execution is a necessary consequence of Wood's ownership. Their right is para- mount to his, and of course to his election to sue in trover or trespass for the corn. The judgment of the Supreme Court should be reversed and a new trial ordered. Gardiner, Jewett, Htjrlbut, and Pratt, JJ., concurred. Bronson, Ch. J. Two verj' able arguments here, against the opinion which I delivered when the case was before the Supreme Court, (4 Denio, 332,) have only served to confirm me in the conclusion at which I then arrived. I shall add but little now to what I said on the former occasion. The owner may, as a general rule, follow and retake the property of which he has been wrongfully deprived so long as the same thing remains, though it may have been changed in form and value by the labor and skill of the wrong-doer. But when, as in this case, the identity of the thing has been destroyed by a chemical process, so that the senses can no longer take cognizance of it — when it has not only changed its form and appearance, but has so combined with other elements that it has ceased to be the same thing, and become something else, the owner can, I think, follow it no longer: his remedy is an action for damages. Such I take to be the rule of the common law ; and that is our law. The rule for which the defendants contend, that in the case of a wilful trespass, the owner may follow and retake his property after it 62 SILSBUBY V. m'COON. has been changed into a thing of a diflFerent species — that he may trace corn into whislcy, and take the new product — is open to several objections. First : it would be nearly or quite impossible to administer such a rule in trials by jury. Second : the rule would often work injus- tice, bj' going beyond the proper measure of either redress or punish- ment ; while an action for damages would render exact justice to both parties. It is very true that a wilful trespasser should be punished : but that proves nothing. All agree that he should be made to suflFer ; but the mode and measure of punishment are questions which still remain. If one has knowingly taken six pence worth of his neighbor's goods as a trespasser, he should neither be imprisoned for life, nor should he forfeit a thousand dollars. We should not lose sight of the fact, that the rule now to be established is one for future, as well as present use ; and it may work much greater injustice in other cases than it can in this. Third : there is no authority' at the common law for following and re- taking the new product in a case lilje this. I make the remark with the more confidence, because the very diligent counsel for the defendants, after having had several years, pending this controversy, for research, has only been able to produce some dicta of a single jurist, without so much as one common law adjudication in support of the rule for which he contends. He is driven to the civil law ; and then the argument is, that because we, in common with the civilians, allow the owner to re- take his property in certain cases, we must be deemed to have adopted the rule of the civil law on this subject in its whole extent. But that is a non sequitur. It often happens that our laws and those of the Eomans — and, indeed, of aU civilized nations — are found to agree in some particulars, while they are widely different in others ; and this is true of laws relating to a single subject. There is no force, therefore, in the argument, that because our law touching this matter is to some extent like the civil law, it may be presumed that the two systems are alike in every particular. And clearly, the burden of showing that the Roman law is our law, hes on those who affirm that fact. There is not only the absence of any common law adjudication in favor of the rule for which the defendants contend, but in one of the earliest cases on the subject to be found in our books, (Year Book, 5 H. 7, fo. 15, 4 Denio, 335, note,) the court plainly recognized the distinction which has been mentioned, and admitted that the owner could not retake the property after its identity had been destroyed; and "grain taken and malt made of it " was given as an example. There are many cases where the title to a personal chattel may be turned into a mere right of action, without the consent of the owner, although the thing was taken by a wilful trespasser, or even by a thief. If a man steal a piece of timber, and place it as a beam or rafter in his house ; or a nail, and drive it into his ship ; or paint, and put it upon his carriage, the owner can not retake his goods, but is put to his action for damages ; and this is so in the civil, as well as at the common law. If a thief take water from another's cistern, and use it in making beer ; PULCIFEE V. PAGE. 53 or salt, and use it in pickling pork; or fuel, and use it in smoking hams, I suppose no one will say, that the owner of the water, the salt, or the fuel may seize the beer, the pork or the hams. And there is no better reason for giving him the new product, where sand is made into glass, malt into beer, coal into gas, or grain into whisky. In the case now before us, the civilians would not go so far as to say, that the owner of the grain might take the swine which were fattened on the refuse of the grain after it had gone through the process of distillation. And yet that would hardly be more unjust or absurd than it would be to give him the whisky. There must be a limit somewhere ; and I know of none which is more safe, practical and just than that which allows the owner to follow a chattel until it has either been changed into a different species, or been adjoined to something else, which is the principal thing ; and stops there. Thus far our courts have gone, and there they have stopped. We have neither precedent nor reason in favor of taking another step ; and I can not take it. Judge Harris agrees with me in the opinion that the judgment of the Supreme Court is right, and should be affirmed. Tatlor, J. did not hear the argument, and gave no opinjon. Judgment reversed.^ PTJLCIFER V. PAGE. Supreme Court of Maine. 1851. [Beported32 Me. iOi.] Trespass for an iron chain, which each of the parties claimed to own. The evidence tended to show, that each of the parties had a chain ; — that each chain had been broken into several pieces ; that the plain- tiff, without the consent or knowledge of the defendant, carried all the pieces to a blacksmith, and had them made up into two chains ; — and that the defendant carried away one of them into which some part of his own chain had been incorporated. It was for this chain, that this suit is brought. The judge instructed the jury that if the plaintiff had only incorpo- rated into this chain some small portion of the defendant's chain with- out his consent, not exceeding two or three Unks, it would not thereby become the property of the defendant. To this ruling the defendant excepted. Woodman, for the defendant. Goodwin, for the plaintiff. » See Gaikina v. Davis, 115 N. C. 85. 54 WEYMOUTH V. CHICAGO AND NORTH- WESTERN EY. CO. Howard, J. This case presents a question of acquisition of property by accession, but does not involve an inquiry concerning the admixture or confusion of goods. It is a general rule of law, that if the materials of one person are united to the materials of another, by labor, forming a joint product, the owner of the principal materials will acquire the right of property in the whole, by right of accession. This Was a rule of the Roman, and of the English law, and has been adopted, as it is understood, in the United States, generally. Dig. 6, 1, 61 ; Bracton de acq. rerum dom. B. 2, c. 2, § 3, 4 ; MoUoy, B. 2, c. 1, § 7 ; Pothier, Trait du droit de propriety, L. 1, c. 2, art. 3, No. 169-180 ; 2 Black. Com. 404 ; 1 Bro. Civil Law, 241 ; Glover v. Austin, 6 Pick. 209 ; Sum- ner V. Hamlet, 12 Pick. 83 ; Merritt v. Johnson, 7 Johns. 474 ; 2 Kent's Com. 361. The distinctions and qualifications, that may be appropriate and necessary in the application of this doctrine to a variety of cases that may arise, do not require consideration, in determining this case. The first instruction stated was favorable to the defendant, and forms no ground of exceptions for him ; and the plaintiff does not complain of it. The second instruction, that " if the plaintiff had only incorporated into this chain some small portion of the defendant's chain, without his con- sent, not exceeding two or three links, the chain would not by the incor- poration of such small portion, become the property of the defendant," is understood to be in accordance with the rule of law before mentioned, and is not erroneous. Exceptions ovemded, judgmeni on the verdict. WEYMOUTH V. CHICAGO & NORTH-WESTERN RAILWAY COMPANY. Supreme Court op Wisconsin. 1863. [Reported 17 Wis. 5.50.] Appeal from the Circuit Court for Jefferson County. The plaintiff, a married woman, brought this action to recover damages for the conversion of seventy-one cords of wood belonging to her. The facts are stated sufHciently in the opinion of the court. "Verdict for the plaintiff for |417 damages. Motion for a new trial overruled. Judgment upon the verdict; from which the defendant appealed. Enos & Sail, for appellant. D. F. Weymouth, for respondent. By the court, Paine, J.^ The only remaining question is as to the rule of damages. The facts material to this are as follows : The plain- tiff had caused the wood to be cut, and had piled it on the premises 1 Part of the case relating to another point is omitted. WEYMOUTH V. CHICAGO AND KOETH-WESTBEN ET. CO. 55 of the defendant, in the town of . Farmington in Jefferson county, with a view of selling it to the defendant. The complaint shows that at that place it was worth about one dollar and fifty cents per cord. Before the contract of sale was completed, the defendant, by mistake, carried the wood to Janesville, and there mingled it with other wood in such a manner that its identity was lost. The plaintiff then demanded it at Janesville, and the defendant did not deliver it. Wood at that time was worth four dollars per cord in Janesville, and was afterwards ■worth five. The question is, whether the plaintiff should recover its value at Janesville, or only the value at Farmington, where it was first taken. There are cases which would seem to sustain the right of the plaintiff to recover the value at Janesville, although the increase in value arose solely from the labor of the defendant in transporting it to that place. In the case of Walther v. Wetniore, 1 E. D. Smith, 28, the following are cited as sustaining such a rule : Curtis v. Grant, 6 Johns. 168 ; Babcock v. Gill, 10 id. 287 ; Brown v. Sax, 7 Cow. 95 ; Baker v. Wheeler, 8 Wend. 605. I do not think that all of them sustain it. Thus in the case of Bab- cock V. Gill, the plaintiff had employed one Howard to manufacture black salts, which the plaintiff furnished, into pearl ashes. Howard was already indebted to the plaintiff, and his labor was to be applied in payment of the indebtedness. He manufactured the pearl ashes, and they were afterwards converted. The court very properly held that the plaintiff might recover their value, inasmuch as Howard was only the agent of the plaintiff in doing the work. He would still have been entitled to credit for his labor, on his indebtedness to the plaintiff. So that the question was a verj' different one from that presented here. In Curtis v. Grant the plaintitf had trespassed upon the defendant's land and manufactured his timber into coal, which remained, however, in the defendant's possession. The trespasser then sued the owner of the land for the coal, and it was held that he had no cause of action, for the coal belonged to the owner of the timber out of which it was made. This was undoubtedly correct. For it is conceded by all the cases that a wrongdoer cannot, by bestowing labor upon the property of another, which he has tortiously taken, thereby divest the title of the original owner, but the latter may retake it in whatever form, so long as its identity can be established. But it seems to me that although the owner's right of recaption has been thus settled, it does not necessarily follow that, if he voluntarily waives that right and sues for damages, he should recover, in all cases, the full value of the prop- erty at any time when he might have retaken it, though a large portion of such value had been given it by the labor of the defendant. The diflSculties which exist in the former case, preventing any other rule than the one adopted, do not exist in the latter. In determining the question of recaption, the law must either allow the owner to retake the property, or it must hold that he has lost his 56 "WEYMOUTH V. CHICAGO AND NOBTH-WESTEEK ET. CO. right by the wrongful act of another. If retaken at all, it must be taken as it is found, though enhanced in value by the trespasser. It cannot be restored to its-original condition. The law, therefore, being obliged to say either that the wrongdoer shall lose his labor, or the owner lose the right to take his property wherever he may find it, very properly decides in favor of the latter. But where the owner voluntarily waives the right to reclaim the property itself, and sues for the damages, the difficulty of separating the enhanced value from the original value no longer exists. It is then entirely practicable to give the owner the entire value that was taken from him, which certainly seems to be all that natural justice requires, without adding to it such value as the property may have afterwards acquired from the labor of the defendant. In the case of recaption, the law does not allow it because it is absolute justice that the original owner should have the additional value, but because the wrongdoer has by his own act created a state of facts where either he or the owner must lose something. There the law says the wrongdoer shall lose. But if the owner chooses to resort to another remedy, in applying which the law may give him full compensation for all that he has lost, without compelling the wrongdoer to pay more, I see no reason why that should not be the rule. The value of the property at the moment of conversion, with such increase as it may have received from fluctuations of the market, or other causes independent of the acts of the defendant, should be the measure of damages. If there is any force in these considerations, those cases which have assumed that the measure of damages should in all such instances include the enhanced value of the property, merely because the owner might have retaken it, ought not to be followed. In one of those cases, Brown v. Sax, 7 Cow. 95, Justice Suther- land delivered a dissenting opinion, which certainly presents some very strong reasons against the rule adopted by the court. And his views are sustained by the following cases : Gushing v. Longfdlow, 26 Maine, 310; Moody v. Whitney and others, 38 id. 174; Forsyth v. Wells, 41 Pa. St. 291 ; Morgan v. Powell, 43 E. C. L. 734. It is true that two of these cases were actions of trespass, and that they contain inti- mations that the owner might have demanded the property in its improved condition, and then recovered its value in that condition. But Moody v. Whitney et al. and Forsyth v. Wells were actions of trover, and reject such a distinction, and hold that in trover, at least where the property was taken by mistake, the rule of damages should be the same as in trespass — that is, the value where first taken. We have concluded to follow that rule, the facts in this case showing that the property was taken by mistake, and therefore not requiring us to go any farther. But I will also add that, in my opinion, it is imma- terial whether the property is taken by mistake or intentionally, unless in the latter case the taking is of such a character as to make the doc- trine of exemplary damages applicable. It is not every intentional SINGLE V. SCHNEIDER. 57 trespass or conversion that makes a case for exemplary damages. If a man takes a tree from my land by mistake, I am damaged just as much as though he took it intentionally ; and if in case of mistake I ought to recover only the value of the tree, although he may have manufactured it into costly furniture, for the reason that the value of the tree is all that I have lost, then the fact that he took it knowing it to be mine ought not to vary the rule of damages, for the plain reason that my loss is the same in one case as the other. It follows from our conclusion on this point, that the court should have given the fourth instruction asked by the defendant, that the value of the wood at Farmington, where it was first taken, with interest, con- stituted the measure of damages. For this reason the judgment must be reversed, and a new trial ordered.^ SINGLE V. SCHNEIDER and Another. Supreme Court of Wisconsin. 1869. [Reported 24 Wis. 299.] Appeal from the Circuit Court for Marathon County. Replevin for lumber. The facts are stated in the opinion. The defendants regained possession of the property from the officer, in the manner provided by the statute. Verdict for the plaintiff ; and defend- ants moved to set it aside, as against the law and the evidence ; but the motion was denied. On plaintiff's motion, judgment was rendered in his favor for the value of the property, as found by the verdict. From this judgment, defendants appealed. W. C. Silverthorn (with A. B. Braley, of counsel), for appellants. O. L. ParJc, for respondent. Paine, J. This action was brought to recover possession of certain lumber, which it was claimed had been manufactured from logs cut without authority upon the plaintiff's land. There was evidence tend- ing to show that the defendants, who owned land adjoining the plain- tiff's, got over the line by mistake. And there was also some evidence tending to show that they cut some on the plaintiff's land, after they were notified of the mistake. There was also an offer of a tax deed in evidence, which was rejected ; and the plaintiff's affidavit shows that the defendants claimed title to the property under this tax deed. There was some talk between the parties about the defendants settling with the plaintiff for what they had cut ; but this does not seem to have been done. Nor did the plaintiff take any steps to recover the logs, but marked them and kept watch of them at the mills until they were sawed and rafted, and then brought this action to recover the lumber. The 1 See Ei-mon v. Sdler, 105 Ind. 266; Forsyth v. Wdls, 41 Pa. 291. 68 SINGLE V. SCHNEIDBE. defendants gave an undertaking under the statute, and retained the property. The jury found for the plaintiff, and assessed the value of the property at the entire value of the lumber as it was proved to have been at the time of commencing this suit. The material and interesting question in the case is, whether, assum- ing the logs to have been cut on the plaintiff's land, he ought to recover the entire value of the lumber, without any deduction for the labor of the defendants in cutting, hauling, and manufacturing the logs into the lumber. If the action had been for the trespass or conversion, he could only have recovered the value of the timber at the time it was taken, at least if it was taken by mistake. Weymouth v. The Ch. <& If. W. M. It. Co., 17 Wis. 550. And, upon the evidence and the whole record, I think these defendants stand in as favorable a position as though it were conceded that the logs were taken b}' mistake. There is proof tending to show a mistake as to a part ; and it appears, also, from the plaintiff's aflRdavit, that they claimed title to the land. They are not to be regarded, therefore, as wilful trespassers. Upon these facts, it seems contrary to the dictates of natural justice, that the plaintiff should be allowed to wait quietly until the defendants had manufactured the logs into lumber, enhancing their value four or five fold, and then recover against them that entire value. True, it is generally recognized that a wrongdoer cannot, by changing the form of another's property, change the title. The owner may pursue it, and reclaim it specifically by whatever remedy the law gives him for that purpose. If he gets it, it is his. But the apparent injustice of allowing one to thus avail himself of the labor and money of another, in cases similar to this, has led to a modification of this stringent rule of ownership, wherever the question is resolved into one of mere compensation in money for whatever injury the party may have suflTered. This modification has thus far been developed almost entirely in actions of trespass or trover, like that of Weymouth v. Ch. & N". W. B. B. Co., and the cases therein referred to. But, in the recent case of Serdic v. Young, 55 Pa. St. 176, the supreme court of Pennsylvania applied the same rule in an action of replevin. They there held that, inasmuch as the law gave the defend- ant the power to retain the property by giving a bond, whenever he availed himself of that right, the question became then one of damages merely, and that the form of action ought not to produce a difference in the result. The damages to be recovered should be the same as though the action were trespass. This case seems to us so well adapted to the promotion of justice and the prevention of injustice, that we have concluded to follow it. To apply that rule here would have required the value of the property to have been assessed at the full value of the lumber, deducting the expense of all that the defendants had done upon it down to the time the suit was begun. As remarked by the court in that case : " Such a standard of damages, growing out of the nature of the act and the form of the action, is reasonable, and does justice to SINGLE V. SCHNEIDES. 59 both parties. It saves to the otherwise innocent defendant his labor and money, and gives to the owner the enhancement of the value of his property growing out of other circumstances, such as a rise in the market price, a difference in price between localities, and other adventitious causes." Our statute provides that the jury shall assess the value of the property. But that is merely as the basis of recovery in ease a delivery cannot be had. The intent was, to fix the value that the plain- tiflf was entitled to recover. Thus, in case of a lien or other special interest, the value to be fixed would be the amount of that lien or interest. Sooth v. Ableman, 20 "Wis. 21. And although, in strict law, the plaintiff is the general owner of the propertj', j-et, when it is once settled that he ought not to recover the value it has received from the defendant's labor, the application of the rule would seem to place him upon substantially' the same footing with the owner of a special interest, so far as ascertaining the value is concerned. Perhaps the best way in such a case would be, to direct the jury to find the actual entire value of the property, and to find specially the amount to which its value had been enhanced by the defendant's labor. And then, in case of judgment for the plaintiff, it would be in the alternative, for a deliverj-, or, if that could not be had, for the amount of the difference between the two sums thus found. It is quite probable that this question was not distinctly presented to the court below. But it seems to be fairly raised bj' the motion for a new trial, on the ground that the verdict was against the law and the evidence ; and that motion ought to have been granted. For this reason the judgment must be reversed, and the cause re- manded for a new trial. £y the Court, — Ordered accordingly.^ SINGLE V. SCHNEIDER Supreme Court of Wisconsin. 1872. [Reported 30 Wis. 570.] Appeal from the Circuit Court for "Winnebago County. Replevin for lumber. The facts appear in the opinion, and in the former report of the same case, 24 "Wis. 299. The jury found for the plaintiff, and found that 58,000 feet of the logs were cut by defendants in good faith, bj' mistake, and 59,350 feet were cut wilfully and not by mistake. A motion for a new trial being overruled, defendants ap- pealed from the judgment. Felker & Weisbrod, for appellant. G. L. Park and D. Lloyd Jones, contra. ^ See State v. Shevlin-Carpenter Co., 62 Minn, 99. 60 SINGLE V. SCHNEIDEE. Cole, J. This case has been before this court at a previous term, and will be found reported in the 24 Wis. 299. The facts as developed on the second trial were substantially the same as are the first. Among other things, the court charged, in respect to the rule of damages, as follows : " "When a person cuts logs upon the land of another, without a lawful right so to do, but in good faith, believing that he has the right to, he is entitled to have deducted from the value of the property re- plevied, such cost and expense and labor as he has bestowed upon the property to get it into its enhanced value. But on the other hand, if knowingly and wilfully, without color or claim of right, he cuts logs upon the land of another, the owner is entitled to recover the enhanced value of the property in whatever shape he may put it, provided he reclaims the specific property." The sole question in the case arises upon the last paragraph of this charge, which was excepted to on the trial. The jury found under this charge that 58 M. feet of the logs were cut by the defendants in good faith by mistake, and that a little over 59 M. feet were cut wilfully and not by mistake ; and the plaintiff had judgment for the improved value of the property on that quantity. The counsel for the defendant contends that, so far as the measure of damages is concerned, it is quite immaterial whether the logs were cut intentionally or through mistake — that the damages given in law as compensation for an injury should be precisely commensurate with the injury, neither more nor less ; and that the plaintiff is not entitled to recover the value of the property in its improved state, under the cir- cumstances of this case. He concedes that, if there was anj-thing tending to show that the trespass was wanton or malicious — com- mitted under circumstances of insult or aggravation, then, upon the authorities, exemplary damages might be allowed in the discretion of the jury, which might exceed or fall below the value of the property enhanced by the labor of the defendants. But he claims that when a person, though intentionally, cuts pine logs upon the wild, unoccupied land of another, to say, as a matter of right, the owner shall recover the enhanced value of the property manufactured into lumber, or into the most expensive furniture, is a rule contrary to the principles of natural justice, and not in accordance with the doctrine of the common law. We are inclined to adopt this view of the matter, although we are well aware that by so doing we laj' down a rule in conflict with some adjudications, which may be found. But it seems to us that, if the owner is entirely indemnified for the injury he has sustained, it is quite immaterial whether the logs were cut by mistake or intentionally, unless in the latter case the trespass was of such a character as to make the doctrine of exemplary damages applicable. This was the view ex- pressed by Mr. Justice Paine in Weymouth v. Chicago & Northwestern R. R. Co., 17 Wis. 550, 555 ; and it seems to us that it is consonant with sound principle and natural justice. It is true, that was an action SIXGLE V. SCHNEIDER. 61 of trover, and this is an action of replevin. But here the defendants gave the undertaking under the statute, and retained possession of the property. The judgment was in the alternative, for the delivery of the property to the plaintiff in case delivery could be had, or for its value. The plaintiff does not really expect to recover the specific prop- erty, and therefore there is no valid reason for a distinction between this case and that of trover, as regards the rule of damages ; it should be the same in both cases. And consequentlj-, whether the logs were cut by mistake or intentionally is immaterial as affecting the amount of the recovery, unless the element of exemplar}- damages enters into the case, which is not contended for by the counsel for the plaintiff. But he insists that it is the settled rule of the common law in the case of a voluntaiy trespass, that the owner may retake the propertj' in its im- proved state, or recover its enhanced value, so long as its identity remains. This was the great question discussed in the celebrated case of Sils- hury v. McCoon, reported in 6 Hill, 425, 4 Denio, 332, and 3 N. Y. 379. The question in that case was, whether, if one wrongfully took another's grain and manufactured it into whisky, the property was changed by the process of manufacture into a different species of property, so that it could not be retaken by the former owner in its changed or improved condition. The case was argued by the most eminent counsel — twice in the court of appeals — and underwent a most thorough examination by the judges, who were divided in opin- ion, both in the Supreme Court and the court of last resort. Bronson, Ch. J., who delivered the prevailing opinion when the cause was before the Supreme Court the second time, and also delivered a dissenting opinion in the court of appeals, while willing to concede for the pur- poses of that case the correctness of the rule that if one wrongfully take the chattel of another, and merely change its form and value by bestowing his labor and skill upon it without destroying its identity, the original proprietor might either retake the property, or recover its value in its state of improvement, yet lie did not wish to be understood as admitting this to be the proper rule. As an original question, he thought the owner should either reclaim the property before the new possessor has greatly increased its value, either by bestowing his labor and skill upon it, or by joining it to other materials of his own ; or else that he should be restricted to a remedy bj' action for damages which he has sustained. The majority, however, of the court of appeals held to the doctrine that one man could not gain any title to the prop- erty of another upon the principle of accession, if he took the other's property wilfully as a trespasser, though he might, by his skill and labor, increase its value a thousand fold. But it seems to us, to allow the owner to appropriate the labor of the wrongdoer in this way is an unjust measure of redress. For, as remarked by Ch. J. Bronson, " tlie question is not, as it has been sometimes artfully put, whether the common law will allow the owner to be unjustly deprived of his 62 WETHEKBEE V. GEEEN. property, or will give encouragement to a wilful trespasser. It will do neither. But, in protecting the owner and punishing the wrongdoer, our law gives such rules as are capable of practical application, and are best calculated to render exact justice to both parties. The proper inquiry is, in what matter and to what extent should the trespasser be punished ; and what should be the kind and measure of redress to the injured party ? A trespasser who takes iron ore and converts it into watch springs, by which its value is increased a thousand fold, should not be hanged, nor should he lose the whole of the new product. Either punishment would be too great. Nor should the owner of the ore have the watch springs, for it would be more than a just measure of redress." 4 Denio, p. 336. So, in the case before us, the rule seems rigorous and unnecessarily severe, which says the defendants must lose all their labor bestowed upon the logs, providing thej' knew at the time they cut them that they did not own the land. Let the plaintiff have full compensation for the trespass, which ordinarily is the value of the stumpage. Hun- gerford v. Redford, 29 Wis. But it is inconsistent, as it appears to us, with the general principles and policy of the law, to allow the plaintiff to recover the value of the logs manufactured into lumber. He waited until this was done, and now seeks to secure for himself the labor and expense of another. And he invokes the aid of the principle that a wilful trespasser can acquire no title or rights in the property of another, however much he may have added to its value by his labor and workmanship. There were no circumstances of fraud, malice or wanton injurj- attending the trespass, and the value of the logs cut — or, as it is sometimes called, the value of the stump- age — would seem to be the measure of just compensation. In this case that is readily ascertained from the verdict of the jury. The plaintiff must remit the value of the labor bestowed upon 59,850 feet of logs as found by the jury, or there must be a new trial. By the Court — Ordered accordingly.* WETHERBEE v. GREEN. Supreme Coubt of Michigan. 1871. IBeported 22 Mich. 311.] Eeeob to Bay Circuit. This was an action of replevin, brought by George Green, Charles H. Camp and George Brooks, in the Circuit Court for the county of Bay, against George Wetherbee, for one hundred and fifty-eight thou- sand black ash barrel hoops, alleged to be of the value of eight hundred 1 See Tuttle v. Wilson, 32 Wis. 643. WETHBEBEB V. GKEEN. 63 dollars. The hoops were cut upon a tract of land which Green, one of the plaintiflfs, and one Thomas Sumner had owned as tenants in com- mon. Green, hy parol, had authorized Sumner to sell timber from off the land. Afterwards, Sumner being indebted to Camp and Brooks, the other plaintiffs, convej-ed to them, by warranty deed, his undivided half of the land, they agreeing orally to re-convey upon payment. Sumner after his convej'ance to Camp and Brooks, sold a quantity of timber growing upon the land to Wetherbee, who cut and manu- factured the same into hoops, — for the possession of which this action is brought. On the trial, the circuit judge excluded the testimony offered by the defendant, to show the character of the transaction between Sumner and Camp and Brooks, and the license derived from Sumner to cut the timber ; and under the charge of the court the jury found for plain- tiffs. The judgment entered upon the verdict comes into this court by writ of error. Marston and Hatch, for plaintiff in error. Clark and Day, for defendants in error. CooLEY, J. The defendants in error replevied of Wetherbee a quan- tity of hoops, which he had made from timber cut upon their land. Wetherbee defended the replevin suit on two grounds. First, he claimed to have cut the timber under a license from one Sumner, who was formerlj' tenant in common of the land with Green, and had been authorized by Green to give such license. Before the license was given, however, Sumner had sold his interest in the land to Camp and Brooks, the co-plaintiffs with Green, and had conveyed the same by warranty deed ; but Wetherbee claimed and offered to show by parol evidence, that the sole purpose of this conveyance was to secure a pre- existing debt from Sumner to Camp and Brooks, and that consequently it amounted to a mortgage only, leaving in Sumner, under our statute, the usual right of a mortgagor to occupy and control the land until foreclosure. He also claimed that the authority given by Green to Sum- ner had never been revoked, and that consequently the license given would be good against Green, and constitute an effectual bar to the suit in replevin, which must fail if any one of the plaintiffs was precluded from maintaining it. But if the court should be against him on this branch of the case, Wetherbee claimed further that replevin could not be maintained for the hoops, because he had cut the timber in good faith, relying upon a per- mission which he supposed proceeded from the parties having lawful right to give it, and had, by the expenditure of his labor and money, converted the trees into chattels immensely more valuable than they were as they stood in the forest, and thereby he had made such chattels his own. And he offered to show that the standing timber was worth twenty-five dollars only, while the hoops replevied were shown hy the evidence to be worth near seven hundred dollars ; also, that at the time of obtaining the license from Sumner he had no knowledge of 64 WETHEEBBE V. GREEN. the sale of Sumner's interest, but, on the other hand, had obtained an abstract of the title to the premises from a firm of land agents at the county seat, who kept an abstract book of titles to land in that countj'^, which abstract showed the title to be in Green and Sumner, and that he then purchased the timber, relying upon the abstract, and upon Sum- ner's statement that he was authorized by Green to make the sale. The evidence offered to estabhsh these facts was rejected by the court, and the plaintiffs obtained judgment. The principal question which, from this statement, appears to be pre- sented by the record, may be stated thus : Has a party who has taken the property of another in good faith, and in reliance upon a supposed right, without intention to commit wrong, and by the expenditure of his monej' or labor, worked upon it so great a transformation as that which this timber underwent in being transformed from standing trees into hoops, acquired such a property therein that it cannot be followed into his hands and reclaimed by the owner of the trees in its improved condition? The objections to allowing the owner of the trees to reclaim the prop- erty under such circumstances are, that it visits the involuntary wrong- doer too severely for his unintentional trespass, and at the same time compensates the owner beyond all reason for the injury he has sus- tained. In the redress of private injuries the law aims not so much to punish the wrong-doer as to compensate the sufferer for bis injuries ; and the cases in which it goes farther and inflicts punitory or vindictive penalties are those in which the wrong-doer has committed the wrong recklessly, wilfully, or maliciously, and under circumstances presenting elements of aggravation. "Where vicious motive or reckless disregard of right are not involved, to inflict upon a person who has taken the property of another, a penalty equal to twenty or thirty times its value, and to compensate the owner in a proportion equally enormous, is so opposed to all legal idea of justice and right and to the rules which regulate the recovery of damages generallj', that if permitted by the law at aU, it must stand out as an anomaly and must rest upon peculiar reasons. As a general rule, one whose property has been appropriated by an- other without authority has a right to follow it and recover the posses- sion from any one who may have received it ; and if, in the meantime, it has been increased in value by the addition of labor or money, the owner may, nevertheless, reclaim it, provided there has been no destruc- tion of substantial identitJ^ So far the authorities are agreed. A man cannot generally be deprived of his property except by his own volun- tary act or by operation of law ; and if unauthorized parties have be- stowed expense or labor upon it that fact cannot constitute a bar to his reclaiming it, so long as identification is not impracticable. But there must, nevertheless, in reason be some limit to the right to follow and reclaim materials which have undergone a process of manufacture. Mr. Justice Blackstone lays down the rule very broadly, that if a thing is ■WETHERBEB V. GREEN. 65 changed into a different species, as Tiy making wine out of another's grapes, oil from his olives, or bread from his wheat, the product belongs to the new operator, who is only to make satisfaction to the former pro- prietor for the materials converted. 2 Bl. Com., 404. We do not un- derstand this to be disputed as a general proposition, though there are some authorities which hold that, in the case of a wilful appropriation, no extent of conversion can give to the wilful trespasser a title to the property so long as the original materials can be traced, in the improved article. The distinction thus made between the case of an appropria- tion in good faith and one based on intentional wrong, appears to have come from the civil law, which would not suffer a party to acquire a title by accession, founded on his own act, unless he had taken the materials in ignorance of the true owner, and given them a form which precluded their being restored to their original condition. 2 Kent, 363. While many cases have followed the rule as broadly stated by Blackstone, others have adopted the severe rule of the civil law where the conversion was in wilful disregard of right. The New York cases of JBetts v. Zee, 5 Johns. 348 ; Curtis v. Groat, 6 Johns. 168 ; and Chandler v. Edson, 9 Johns. 362, were all cases where the wilful trespasser was held to have acquired no property by a very radical conversion, and in Silsbury v. Mc Coon, 3 Comstock, 378, 385, the whole subject is very fully examined, and Ruggles, J., in delivering the opinion of the court, says that the common law and the civil law agree ' ' that if the chattel wrongfully taken come into the hands of an injiocent holder who, believing himself to be the owner, converts the chattel into a thing of different species, so that its identity is destroj'ed, the original owner cannot reclaim it. Such a change is said to be wrought when wheat is made into bread, olives into oil, or grapes into wine. In a case of this kind, the change in the species of the chattel is not an intentional wrong to the original owner. It is, therefore, regarded as a destruction or consumption of the original materials, and the true owner is not permitted to trace the identity into the manufactured article, for the purpose of appropriating to his own use the labor and skill of the innocent occupant who wrought the change ; but he is put to his action for damages as for a thing con- sumed, and may recover its value as it was when the conversion or consumption took place," and further on he says of the civil law, with which the common law is supposed by him to harmonize : " The ac- knowledged principle of the civil law is that a wilful wrong-doer acquires no property in the goods of another either bj- the wrongful taking, or bj' any change wrought in them bj' his labor or skill, however great that change may be. The new product in its improved state belongs to the owner of the original materials, provided it be proved to be made from them ; the trespasser loses his labor, and that change which is regarded as a destruction of the goods, or an alteration of their identity in favor of an honest possessor, is not so regarded as between the original owner and a wilful violator of his right of property." In further illustration of the same views we refer to Hyde v. Cookson, 21 Barb. 104; Mar- 6 66 WETHEEBEE V, GEBEN. tin V. Porter, 5 M. & W. 351 ; Wild v. Solt, 9 M. & W. 672 ; Baker V. Wheeler, 8 "Wend. 508 ; Snyder v. Vaux, 2 Rawle, 427 ; Middle v. Driver, 12 Ala. 590. It does not become necessary for us to consider whether the case of Silslury v. McCoon, 3 Comstock, 378, which overruled the prior de- cisions of the supreme court (reported in 4 Denio, 425, and 6 Hill, 832), has not recognized a right in the owner of the original materials to fol- low them under circumstances when it would not be permitted by the rule as recognized by the authorities generally. That was the case where a wilful trespasser had converted corn into whisky, and the owner of the corn was held entitled to the manufactured article. The rule as given by Blackstone would confine the owner, in such case, to his remedy to recover damages for the original taking. But we are not called upon in this case to express any opinion regarding the rule ap- plicable in the case of a wilful trespasser, since the authorities agree in holding, that when the wrong had been involuntarj', the owner of the original materials is precluded, by the civil law and common law alike, from following and reclaiming the property after it has under- gone a transformation which converts it into an article substantially different. The cases of confusion of goods are closely analogous. It has al- ways been held that he who, without fraud, intentional wrong, or reck- less disregard of the rights of others, mingled his goods with those of another person, in such manner that they could not be distinguished, should, nevertheless, be protected in his ownership so far as the circum- stances would permit. The question of motive here becomes of the highest importance ; for, as Chancellor Kent says, if the commingling of property " was wilfully made without mutual consent, ... the common law gave the entire property, without any account, to him whose property was originally invaded, and its distinct character de- stroyed. Popham's Eep. 38, pi. 2. If A will wilfully intermix his corn or hay with that of B, or casts his gold into another's crucible, so that it becomes impossible to distinguish what belonged to A from what belonged to B, the whole belongs to B. Popham's Eep. uh. supra; Warde v. Ayre, 2 Bulst. 323, 2 Kent, 364, 365 ; and see 2 Bl. Com. 404 ; Hart v. Ten Eyck, 2 Johns. Ch. 62 ; Gordon v. Jenney, 16 Mass. 465; Treat v. Barber, 7 Conn. 280; Barron v. CoUeigh, 11 N. H. 561 ; Both v. Wells, 29 N. Y. 486; Willardv. Bice, 11 Met. 493 ; Jenkins v. Steanka, 19 Wis. 128 ; Sesseltine v. Stockwell, 30 Me. 237. But this rule only applies to wrongful or fraudulent inter- mixtures. There ma}' be an intentional intermingling and yet no wrong intended ; as where a man mixes two parcels together, supposing both to be his own ; or, that he was about to mingle his with his neighbor's, by agreement, and mistakes the parcel. In such cases, which may be deemed accidental intermixtures, it would be unreasonable and unjust that he should lose his own or be obliged to take and pay for his neigh- bor's, as he would have been under the civil law. Morton, J., in Byder WBTHEEBEB V. GEBENl 67 T. Hathaway, 21 Pick. 305. In many cases there will be diflaculty in determining precisely how he can be protected with due regard to the rights of the other party ; but it is clear that the law will not forfeit his property in consequence of the accident or inadvertence, unless a just measure of redress to the other party renders it inevitable. Storj' on Bailm. § 40 ; Sedg. on Dams. 483. The important question on this branch of the case appears to us to be, whether standing trees, when cut and manufactured into hoops, are to be regarded as so far changed in character that their identity can be said to be destro3'ed within the meaning of the authorities. And as we enter upon a discussion of this question, it is evident at once that it is difficult, if not impossible, to discover any invariable and satisfactory test which can be applied to all the cases which arise in such infinite variety. " If grain be taken and made into malt, or money taken and made into a cup, or timber taken and made into a house, it is held in the old English law that the property is so altered as to change the title. Bro. tit. Property, pi. 23 ; " 2 Kent, 363. But cloth made into gai-- ments, leather into shoes, trees hewn or sawed into timber, and iron made into bars, it is said may be reclaimed bj- the owner in their new and original shape. Sedg. on Dams. 484 ; Snyder v. Vaux, 2 Rawle, 427 ; Betts v. Lee, .5 Johns. 348 ; Curtis v. Groat, 6 Johns. 168 ; Brown v. Sax, 7 Cow. 95; Silsbury v. McGoon, 4 Denio, 333, per Bronson, J. ; Ibid., 6 Hill, 426, per Nelson, Ch. J. ; Ihid., 3 Comstock, 386, per Ruggles, J. Some of the cases place the right of the former owner to take the thing in its altered condition upon the question whether its identity could be made out by the senses. Year Book 5, H. 7, fo. 15, pi. 6 ; 4 Denio, 335 note. But this is obviously a very unsatisfactory test, and in many cases would wholly defeat the pur- pose which the law has in view in recognizing a change of title in any of these cases. That purpose is not to establish auj' arbitrary distinctions, based upon mere phj-sical reasons, but to adjust the re- dress aflTorded to the one party and the penalty inflicted upon the other, as near as circumstances will permit, to the rules of substan- tial justice. It may often happen that no difficulty will be experienced in determin- ing the identity of a piece of timber which has been taken- and built into a house ; but no one disputes that the right of the original owner is gone in such a case. A particular piece of wood might perhaps be traced with- out trouble into a church organ, or other equally valuable article ; but no one would defend a rule of law which, because the identity could be determined by the senses, would permit the owner of the wood to appro- priate a musical instrument, a hundred or a thousand times the value of his original materials, when the party who, under like circumstances, has doubled the value of another man's corn by converting it into malt, is permitted to retain it, and held liable for the original value only. Such distinctions in the law would be without reason, and could not be toler- ated. When the right to the improved article is the point in issue, the 68 ■WETHEEBEE V. GEEEN. question, how much the property or labor of each has contributed to make it what it is, must always be one of first importance. The owner of a beam built into the house of another loses his property in it, because the beam is insignificant in value or importance as compared to that to which it has become attached, and the musical instrument belongs to the maker rather than to the man whose timber was used in making it, — not because the timber cannot be identified, but because in bringing it to its present condition the value of the labor has swallowed up and rendered insignificant the value of the original materials. The labor, in the case of the musical instrument, is just as much the principal thing as the house is in the other case instanced ; the timber appropriated is in each case comparatively unimportant. No test which satisfies the reason of the law can be applied in the ad- justment of questions of title to chattels by accession, unless it keeps in view the circumstance of relative values. When we bear in mind the fact that what the law aims at is the accomplishment of substantial equity, we shall readily perceive that the fact of the value of the mate- rials having been increased a hundred fold, is of more importance in the adjustment than any chemical change or mechanical transformation, which, however radical, neither is expensive to the party making it, nor adds materially to the value. There may be complete changes with so little improvement in value, that there could be no hardship in giving the owner of the original materials the improved article ; but in the present ease, where the defendant's labor — if he shall succeed in sus- taining his offer of testimony — will appear to have given the timber in its present condition nearly all its value, all the grounds of equitj^ exist which influence the courts in recognizing a change of title under any circumstances. We are of opinion that the court erred in rejecting the testimony offered. The defendant, we think, had a right to show that he had manufactured the hoops in good faith, and in the beUef that he had the proper authority to do so ; and if he should succeed in making that showing, he was entitled to have the jury instructed that the title to the timber was changed by a substantial change of identity, and that the remedy of the plaintiff was an action to recover damages for the unin- tentional trespass. This view will dispose of the case upon the present record. Upon the other points we are not prepared to assent entirely to the views of the plaintiff in error. It does not appear to us important that the deed from Sumner to Camp and Brooks was intended as a mere security. Under such a deed Sumner would have had a right of redemption, but it does not follow that he would have been entitled to possession, and to all the other rights of mortgagor in the courts of law. When a deed absolute in form is given to secure a debt, the purpose generallv is to vest in the grantee a larger power of control and disposition than he would have by statute under an ordinary mortgage ; and we are not pre- pared to gay that the |tatute — Comp. L. § 4614 — which forbids eject- WETHEKBEE V. GEEEN. 69 ment by mortgagees before foreclosure was intended to reach a case of that description. We think, however, that the mere circumstance of the sale of Sumner's interest did not operate in law as a revocation of the authority previously given to Sumner to sell the timber. It is quite possible that Green would not have given his authority had Sumner not been tenant in common of the land with him ; but there is no absolute presumption of the law to that effect ; and we cannot say that Green would have revoked the authority had he been aware of Sumner's con- veyance. Nor was it necessary that the license given by Sumner to Wetherbee should have been in any particular form. A mere license to enter upon land and cut timber does not confer a legal right to do so ; but it nevertheless protects the licensee so far as he has acted under it before revocation, and the protection does not depend upon its form, but upon what has been done having proceeded by consent. However informal the consent may have been, the land owner cannot be allowed, by afterwards recalling it, to make the licensee a trespasser for what he has done in reliance upon it. For the reasons given, the judgment must be reversed, with costs, and a new trial ordered. The other justices concurred.^ 1 " The value of the cross-ties in controTersy was twelre and a half cents a tie. The value of each in the tree was two cents. The value of the labor expended upon them is not shown, but assuming it to be the increased value of ten and a half cents a tie, the difference between it and the value of the original material is not so great as to make the value of the latter, as compared with that of the former, insignificant, and to make the appropriation of the cross-ties by the original owner to his own use, without compensation, appear, under the circumstances, gross injustice at the first blush. The disparity is not so great as it was in Wetherbee v. Green, supra, in which trees of the value of $25 were cut and taken by one from the land of another and converted into hoops of the value of $700, which was twenty-eight times the value of the trees, while the cross-ties in this case were about six times ; and yet the Supreme Court of Michigan, in Isle Royale Mining Co. v. Hertin, supra, said that ' perhaps no case has gone further than Wetherbee v. Great.' " In considering the justice of permitting the appellant to appropriate the cross-ties to his own use, the invasion of his rights and the injury done to him by appellee should not be overlooked. The trees belonged to him. They were standing upon his land, and he had the right to hold them as they were. No one had the right to take them from him, convert them into ties, and force him to accept their value at the time of the conversion. He may have preferred to have them to stand ; and, if left standing for a few years, they might yield him great profit, and the enhancement of their value by the labor of appellee might be a poor compensation for the wrong done. But whether he wished to sell or not, it would be gross injustice to permit appellee to force him to sell. He is entitled to the protection of the laws. Deny to him the right to the cross- ties, and force liim to accept the value of his timber when appropriated by a trespasser, as it was at the time of the conversion, and he has no adequate protection. The injury inflicted by the trespasser would be borne in part by the innocent owner, and the guilty would escape. ' Such a doctrine,' as said by Chief Justice Cooley, ' offers a, premium to heedlessness and blunders, and a temptation by false evidence to give an intentional trespass the appearance of an innocent mistake.' " Assuming the trees to be the property of appellant, and taking into consideration the great wrong committed by appellee in cutting them, the deprivation to the appel- lant of the right to use the same as it might please him, the probable loss occasioned 70 ILLINOIS AND ST. LOUIS E. R. AND COAL CO. V. OGLE. ILLINOIS AND ST. LOUIS RAILROAD AND COAL CO. V. OGLE. SuPKEME Court of Illinois. 1876. [Reported 82 III. 627.] Appeal from the Circuit Court of St. Clair county ; the Hon. Wil- liam H. Sntdek, Judge, presiding. Messrs. G. & G, A. Koerner, for the appellant. Messrs. G. W. & E. L. Thomas, for the appellee. thereby, the fact that the identification of the original material was nnaflected by the labor expended, the encouragement that would be afforded to trespassers by allowing them to enjoy the fruits of their labor upon a mere showing of mistake, the protection a contrary policy would afford to the owner of standing trees against heedlessness, care- lessness, pretended mistakes, and trespasses, and the importance of pursuing such course to secure such protection, — and comparing the injury inflicted upon the appel- lant by the appellee, and the injustice of taking from the former his property against his will, with the hardship the latter may suffer by the loss of his labor, we think it would be lawful and right to allow appellant to recover the cross-ties, and to impose upon the appellee the consequences of his own carelessness. " But appellant has not obtained possession of the cross-ties. In the event he cannot do so, he is entitled to the value of the property he has lost. How is this value to be estimated ? This question is not beset with the diflieulties which attend the right of recaption. When the appellant sued for the possession of the cross-ties, he was enti- tled to their possession, unless he had lost his property by the wrongful act of an- other. If entitled to retake it in its new form, it must be taken as he found it, though enhanced in value by the labor of appellee. The ties cannot be restored to their orig- inal form. The appellee cannot force the appellant to become a debtor to him for the value of his labor, nor demand compensation for his voluntary additions to the value of the trees converted into ties, without the assent of the appellant. He cannot im- pose any conditions upon the right to retake them. The question, therefore, being whether the appellee shall lose his labor, or the appellant lose the right to take his property, the law decides in favor of the latter. But, in determining the compensa- tion the appellant shall receive as the value of his property which has been wrongfully converted, the difficulty does not arise. The value of the property of the owner, which has been converted, can be ascertained and fixed without including therein the labor expended upon it. Hence the law protects the unintentional trespasser in such cases by limiting the right of the owner to recover. Peters B. ^ L. Co. v. Lesh, 119 Ind. 98; Heard v. James, 49 Miss. 236 ; Herdic v. Young, 55 Pa. St. 176; Single v. Schneider, 30 Wis. 570; 2 Sedgwick, Damages (8th ed.), § 534; Isle Rot/ale Mining Company v. Hertin, 26 Am. Rep. pp. 525, 530. As to the extent of this limitation, the authorities are not agreed. But we think that, inasmuch as this is an exception to the general rule, made for the pui-pose of protecting the unintentional trespasser, it should be allowed to prevail only to the extent it is necessary to give protection, and that the owner, in actions for the possession of personal property in the new form into which it has been converted inadvertently, under a bona fide but mistaken belief of right, ' in case a delivery cannot be had,' is entitled to recover the value of the property in its new form, less the labor and material expended in transforming it, provided the expen- ditures do not exceed the increase in value which was added to the transformation, in which event he should recover the value of the property in its new form, less the in- ILLINOIS AND ST. LOUIS E. E. AND COAL CO. V. OGLE. 71 Mr. Justice Craig delivered the opinion of the Court : This was an action of trespass, brought by David Ogle in the circuit court of St. Clair count}', against The Illinois and St. Louis Railroad and Coal Company, to recover damages for an unlawful entry upon the plaintiffs close, and digging out a certain vein of coal. A trial of the cause before a jury resulted in a verdict and judgment in favor of the plaintiflF, to reverse which this appeal was taken by the defendant. The only error assigned is, that the court erred in instructing the jury in regard to the measure of damages, as follows : "If the jury believe, from the evidence, that the defendant tres- passed upon plaintiffs land, and mined coal therefrom, and converted it to its own use, the jury are to be in nowise limited by the value of the land itself, but must regard the instructions of the court upon the question of what is the proper measure of damages. " If the jury believe, from the evidence, that the defendant, by its servants and employees, mined coal from plaintiflfs land without his consent, as alleged in the declaration, and did so by mistake or inad- vertence, and without knowledge that the coal was being mined from plaintiff's land, then the jury are bound to allow plaintiff the value of the coal taken from his land within five years before this suit was com- menced, estimated at the pit mouth, less the cost of carrying it where it was dug to the pit mouth, or, in other words, the plaintiff, under the above circumstances, is to be allowed the value of the coal at the pit mouth, less the cost of carrying it there from the place where it was dug, allowing defendant nothing for the digging, the verdict, however, not to exceed $65,000." In Robertson v. Jones, 71 111. 405, the same question presented by the instructions of the court in this case arose, and we there held, in an action of trespass, the owner of the mine could recover the value of the coal as soon as it was severed and became a chattel, or he might crease. Weymouth v. Chicago Sf Western Railway Co., 17 Wis. 550. Some courts hold that the owner, in such cases, should recover the value of his property in its new form, less the expense incurred in converting it into such form and increasing its value. Goller V. Fett, 30 Cal. 482 ; Naye v. Yappen, 23 Cal. 306 ; Herdic v. Young, 55 Pa. St. 176. But we do not think this is a correct rule in all cases, for the expense may in some cases exceed the increase in value, and in that event the rule would require the owner to pay for something that he never received. " According to this opinion, two errors appear in the record in this action. One is in the form of the judgment. If the appellant was the owner of the property in contro- versy, he was entitled to a judgment for its possession, and for its value, according to the rule before stated, ' in case a delivery cannot be had.' Sand. & H. Dig. § 6398. On the contrary, the judgment rendered is for the value of the property determined by the court, and then for its possession in the event the value is not paid. The other error is the failure to fix the value according to the rule we have stated. " For these errors the judgment of the circuit court is reversed, and the cause is remanded for anew trial." — Battle, J., in Eaton v. Langley, 65 Ark. 448, 457 (1898). See Murphy v. The S. C. ^ P. R. Co., 55 Iowa, 473 ; Lewis v. Courtright, 77 Iowa, 190 ; Slrubbee v. The Trustees, 78 Ky. 481 ; Wing v. Milliken, 91 Me. 387 ; Isle Royale Mining Co. v. Hertin, 37 Mich. 332 ; Gates v. Rifle Boom Co., 70 Mich. 309; Carpenter V. Lingenfelter, 42 Neb. 728. 72 ILLINOIS AND ST. LOUIS E. R. AND COAL CO. V. OGLE. recover the value of the coal at the mouth of the pit, less the cost of removing it from the mine, after it was dug, to the pit's mouth. The instructions given are in harmony with the views expressed in Robertson v. Jones, but it is urged by appellant that a different rule has been established in other courts, and our attention is called par- ticularly to Wood V. Morewood, 43 E. C. L. 810 ; Forsythe v. Wells, 41 Pa. St. 291 ; and the late case, in Michigan, of Winchester y. Craig, decided at the January term, 1876. The decision in Robertson v. Jones, supra, although in harmony with other authorities, is predicated mainly on the decision of Martin V. Porter, 5 M. & W. 353, which, like the case before us, was an action of trespass for breaking and entering the plaintiff's close and carrying away coal, by an owner of an adjoining estate. On motion to reduce the damages, before a full bench, it was held that the plaintiff was en- titled to recover the value of the coal as soon as it existed as a chattel, which would be its value at the mouth of the pit, after deducting the expense of carrying the coals from the place in the mine where dug, to the pit's mouth. This decision was rendered in 1839. In 1841, Wood v. Morewood, supra, was tried at Derby Summer Assizes, before Baron Parke, and on the trial the Baron directed the jury : " That if there was fraud or negligence in the defendant, they might give as damages, under the count in trover, the value of the coals at the time they first became chattels, on the principle laid down in Martin v. Porter; but if they thought that the defendant was not guilty of fraud or negligence, but acted honestly and fairly, in the full belief he had a right to do what he did, they might give the fair value of the coals, as if the coal fields had been purchased from the plaintiff." This decision is cited by appellant- as authority that the rule an- nounced in Martin v. Porter, was not adhered to in the courts in England ; but the fallacy of the position is fully established by the decision of Morgan v. Powell, 43 Eng. Com. L. 734, which was an action of trespass for entering the plaintiff's close, and mining and car- rying away coal. On a rule before Lord Denman, Patterson, Wil- liams, and Coleridge, JJ., to show cause why the expense of mining and carrying the coals from the mine to the mouth of the pit should not be deducted from the verdict, Lord Denman said : " We are of opinion that the rule in Martin v. Porter is correct, and properly ap- plicable to the present case. The jury must give compensation for the pecuniary loss sustained by the plaintiff from the trespass committed in taking bis coal, compensation having been separately given for all the injury done to the soil by digging, and for the trespass committed in digging the coal along the plaintiff's adit ; and the estimate of that loss depends on the value of the coal when severed — that is, the price at which the plaintiff could have sold it. This, plainly, was the value of the coal at that moment. The defendant had no right to be reim- bursed for his own unlawful act in procuring the coal, nor can he, prop- ILLINOIS AND ST. LOUIS E. K. AND COAL CO. V. OGLE. 73 erl3' speaking, bring any charge against the plaintiff for labor expended upon it. But it could have no value as a salable article without being taken from the pit. Any one purchasing it there, would, as of course, have deducted from the price the cost of bringing it to the pit's mouth. Instances may easily be supposed where particular circumstances would vary this mode of calculating the damage, but none such appear." In the argument, the case of Wood v. Morewood, decided at Msi Prius by Parke, B., was cited, and relied upon as establishing the cor- rect rule of damages. Yet the court in no manner alluded to that decision, but, on the other hand, followed and affirmed Martin v. Porter. The doctrine announced in Martin v. Porter was again followed and adhered to in the case of Wild et al v. Holt, 9 Mees. & Wels. 672. So far, therefore, as we understand the English authorities, in an action of trespass, like the case under consideration, the rule of dam- ages is well settled that the plaintiff is entitled to recover the value of the coal at the mouth of the pit, after deducting the cost of removing it from the place where mined to the pit's mouth. No necessity exists for one miner to trespass upon an adjoining owner. If proper maps and plans of the mine are kept, and measure- ments and surveys of the work made, as required by common prudence and the statute, each miner will have no difficulty in confining his opera- tions to his own estate. When, therefore, one miner, in disregard of his dutj', invades the property of another, he should not be permitted to profit by his unlawful act, which would be the case if the trespasser was only required to paj' the value of the coal as it existed in the mine before it was taken. It is true, a different rule was established in Forsythe v. Wells, supra, cited by appellant ; but that case seems to be predicated upon what was said in Wood v. Morewood, supra, which, as we have attempted to show, cannot be regarded as the doctrine of the English courts. The doctrine announced in the Michigan case, cited by appellant, in so far as the question here involved is discussed, seems to follow the rule an- nounced in the case cited from Pennsylvania, wiiich we are not inclined to adopt. The same question involved in this case, in 1873, came before the Supreme Court of Maryland, in Berlin Coal Co. v. Cox, 39 Md. 1. The action was trespass, to recover damages for mining and carrying away coal. The court, after a thorough and able review of the author- ities bearing upon the question of the correct rule of damages, approved and followed the rule announced in Martin v. Porter, supra. In the concluding part of the opinion bearing upon the question, it is said : " The necessitj' and importance of this rule can scarcely be magnified in a community where the wealth of the country consists in its mineral deposits." It is true the authorities in the States are not entirely harmonious, but we are satisfied the rule announced in Robertson v. Jones is correct 74 "WOODEN-WAEE CO. V. UNITED STATES. in principle, that it is in harmony with the rule adopted in England and in most of the States, and we perceive no reason for departing from the doctrine announced. Believing that the instructions of the circuit court are correct, the judgment will be affirmed. Judgment affirmed.^ WOODEN-WARE COMPANY v. UNITED STATES. SUPEEME COUKT OF THE UNITED StATES. 1882. IReported 106 U. S. 432.] Error to the Circuit Court of the United States for the Eastern District of Wisconsin. The facts are stated in the opinion of the court. Mr. Samuel D. Sastings, Jr., for the plaintiff in error. Mr. Assistant Attorney- General Maury, for the United States. 1 "Now, my Lords, there was a technical rule in the English courts in these matters. When something that was part of the realty (we are talking of coal in this particular case) is severed from the realty and converted into a chattel, then instantly on its becoming a chattel, it becomes the property of the person who had been the owner of the fee in the land whilst it remained a portion of the land ; and then in esti- mating the damages against a person who had carried away that chattel, it was con- sidered and decided that the owner of the fee was to be paid the value of the chattel at the time when it was converted, and it would in fact have been improper, as quali- fying his own wrong, to allow the wrongdoer anything for that mischief which he had done, or for that expense which he had incurred in converting the piece of rock into a chattel, which he had no business to do. " Such was the rule of the common law. Whether or not that was a judicious rule at any time I do not take upon myself to say ; but a long while ago (and when I say a long while I mean twenty-five years ago) Mr. Baron Parke put this qualification on it, as far as I am aware for the first time. He said. If however the wrongdoer has taken it perfectly innocently and ignorantly, without any negligence and so forth, and if the jury, in estimating the damages, are convinced of that, then you should consider the mischief that has been really done to the plaintiff who lost it whilst it was part of the rock, and therefore you should not consider its value when it had been turned into a piece of coal after it had been severed from the rock, but you should treat it at what would have been a fair price if the wrongdoer had bought it whilst it was yet a portion of the land as yon would buy a coal-field. Wood v. Morewood, 4 Q. B. n. 440. That was the rule to be applied where it was an innocent person that did the wrong ; that rule was followed in the case of Jegon v. Vivian, Law Rep. 6 Ch. 742, which has been so much mentioned ; it was followed in the Court of Chancery, and, so far as I know. It has never been questioned since, that where there is an innocent wrongdoing the point that is to be made out for the damages is, as was expressed in the minutes of the decree : ' The defendants to be charged with the fair value of such coal and other minerals at the same rate as if the mines had been purchased by the defendants at the fair market value of the district ; ' that I understand to mean as if the mines had been purchased while the minerals were yet part of the soil." — Per Lord Blackbukn, in Livingstone v. Rauoyard Coal Co., 5 App. Cas. 25, 39. See Beede v. Lamprei/, 64 N. H. 510. WOODEN-WAKE CO. V. TTNITED STATES. 75 Mr. Justice Miller delivered the opinion of the court. This is a writ of error, founded on a certificate of division of opin- ion between the judges of the Circuit Court. The facts, as certified, out of which this difference of opinion arose appear in an action in the nature of trover, brought by the United States for the value of two hundred and forty-two cords of ash timber, or wood suitable for manufacturing purposes, cut and removed from that part of the public lauds known as the resei'vation of the Oneida tribe of Indians, in the State of "Wisconsin. This timber was know- ingly and wrongfully taken from the land by Indians, and carried by them some distance to the town of Depere, and there sold to the E. E. BoUes Wooden-ware Company, the defendant, which was not charge- able with any intentional wrong or misconduct or bad faith in the purchase. The timber on the ground, after it was felled, was worth twentj'-five cents per cord, or $60.71 for the whole, and at the town of Depere, where defendant bought and received it, three dollars and fiftj' cents per cord, or |850 for the whole quantity. The question on which the judges divided was whether the liability of the defendant should be measured by the first or the last of these valuations. It was the opinion of the circuit judge that the latter was the proper rule of damages, and judgment was rendered against the defendant for that sum. We cannot follow counsel for the plaintiff in error through the ex- amination of all the cases, both in England and this country, which his commendable research has enabled him to place upon the brief. In the English courts the decisions have in the main grown out of coal taken from the mine, and in such cases the principle seems to be estab- lished in those courts, that when suit is brought for the value of the coal so taken, and it has been the result of an honest mistake as to the true ownership of the mine, and the taking was not a wilful tres- pass, the rule of damages is the value of the coal as it was in the mine before it was disturbed, and not its value when dug out and delivered at the mouth of the mine. Martin v. Porter, 5 Mee. & W. 351 ; Mor- ffan V. Powell, 3 Ad. & E. k. s. 278; Wood v. Morewood, 3 id. 440 ; Hilton V. Woods, Law Rep. 4 Eq. 432 ; Jegon v. Vivian, Law Rep. 6 Ch. App. 742. The doctrine of the English courts on this subject is probably as well stated by Lord Hatherley in the House of Lords, in the case of Livingstone v. Bawyards Goal Co., 5 App. Cas. 25, as anywhere else. He said : " There is no doubt that if a man furtively, and in bad faith, robs his neighbor of his property, and because it is underground is probably for some little time not detected, the court of equity in this country will struggle, or, I would rather say, will assert its authority to punish the fraud by fixing the person with the value of the whole of the property which he has so furtively taken, and making him no allow- 76 WOODBK-WARE CO. V. UNITED STATES. ance in respect of what he has so done, as would have been justly made to him if the parties had been working by agreement." But " when once we arrive at the fact that an inadvertence has been the cause of the misfortune, then the simple course is to make every just allowance for outlay on the part of the person who has so acquired the property, and to give back to the owner, so far as is possible under the circumstances of the case, the full value of that which cannot be restored to him in specie." There seems to us to be no doubt that in the case of a wilful trespass the rule as stated above is the law of damages both in England and in this country, though in some of the State courts the milder rule has been applied even in this class of cases. Such are some that are cited from Wisconsin. Weymouth v. Chicago tfc Northwestern Railway Co., 17 Wis. 550 ; Single v. Schneider, 24 id. 299. On the other hand, the weight of authority in this country as well as in England favors the doctrine that where the trespass is the result of inadvertence or mistake, and the wrong was not intentional, the value of the property when first taken must govern ; or if the conversion sued for was after value had been added to it by the work of the de- fendant, he should be credited with this addition. Winchester v. Craig, 33 Mich. 205, contains a full examination of the autliorities on the point. Heard v. James, 49 Miss. 236 ; Baker V. Wheeler, 8 Wend. (N. Y.) 605 ; Baldwin \. Porter, 12 Conn. 484. While these principles are sufficient to enable us to fix a measure of damages in both classes of torts where the original trespasser is defend- ant, there remains a third class, where a purchaser from him is sued, as in this case, for the conversion of the property to his own use. In such case, if the first taker of the property were guilty of no wilful wrong, the rule can in no case be more stringent against the defendant who purchased of him than against his vendor. But the case before us is one where, by reason of the wilful wrong of the party who committed the trespass, he was liable, under the rule we have supposed to be established, for the value of the timber at De- pere the moment befofe he sold it, and the question to be decided is whether the defendant who purchased it then with no notice that the property belonged to the United States, and with no intention to do wrong, must respond by the same rule of damages as his vendor should if he had been sued. It seems to us that he must. The timber at all stages of the conver- sion was the property of plaintiff. Its purchase by defendant did not divest the title nor the riglit of possession. The recovery of any sum whatever is based upon that proposition. This right, at the moment preceding the purchase by defendant at Depere, was perfect, with no right in any one to set up a claim for work and labor bestowed on it by the wrong-doer. It is also plain that by purchase from the wrong- doer defendant did not acquire any better title to the property than his "WOODEN-'WAEE CO. V. tJNITED STATES. 77 vendor had. It is not a case where an innocent purchaser can defend himself under that plea. If it were, he would be liable to no damages at all, and no recovery could be had. On the contrary, it is a case to which the doctrine of caveat emptor applies, and hence the right of recovery in plaintiff. On what ground, then, can it be maintained that the right to recover against him should not be just what it was against his vendor the mo- ment before he interfered and acquired possession ? If the case were one which concerned additional value placed upon the property by the work or labor of the defendant after he had purchased, the same rule might be applied as in case of the inadvertent trespasser. But here he has added nothing to its value. He acquired possession of property of the United States at Depere, which, at that place, and in its then condition, is worth $850, and he wants to satisfy the claim of the government by the paj'ment of $60. He founds his right to do this, not on the ground that anything he has added to the property has increased its value by the amount of the difference between these two suras, but on the proposition that in purchasing the property he pur- chased of the wrong-doer a right to deduct what the labor of the latter had added to its value. If, as in the case of an unintentional trespasser, such right existed, of course defendant would have bought it and stood in his shoes ; but as in the present case, of an intentional trespasser, who had no such right to sell, the defendant could purchase none. Such is the distinction taken in the Roman law as stated in the In- stitutes of Justinian, Lib. II. Tit. I. sect. 34. After speaking of a painting by one man on the tablet of an- other, and holding it to be absurd that the work of an Apelles or Parrhasius should go without compensation to the owner of a worth- less tablet, if the painter had possession fairly, he says, as translated by Dr. Cooper : " But if he, or any other, shall have taken awaj' the tablet feloniouslj', it is evident the owner may prosecute by action of theft.'" The case of Nesbitt v. St. Paul iMmher Co., 21 Minn. 491, is directly in point here. The Supreme Court of Minnesota says : " The defend- ant claims that because they (the logs) were enhanced in value by the labor of the original wrong-doer in cutting them, and the expense of transporting them to Anoka, the plaintiff is not entitled to recover the enhanced value ; that is, that he is not entitled to recover the full value at the time and place of conversion." That was a case, like this, where the defendant was the innocent purchaser of the logs from the wilful wrong-doer, and where, as in this case, the transportation of them to a market was the largest item in their value at the time of conversion hy defendant ; but the court overruled the proposition and affirmed a judg- ment for the value at Anoka, the place of sale. To establish any other principle in such a case as this would be very disastrous to the interest of the public in the immense forest lands of 78 SMITH V. CLAEK. the government. It has long been a matter of complaint that the depre- dations upon these lands are rapidlj' destroj-ing the finest forests in the world. Unlike the individual owner, who, by fencing and vigilant at- tention, can protect his valuable trees, the government has no adequate defence against this great evil. Its liberality in allowing trees to be cut on its land for mining, agricultural, and other specified uses has been used to screen the lawless depredator who destroys and sells for profit. To hold that when the government finds its own propertj' in hands but one remove from these wilful trespassers, and asserts its right to such property by the slow processes of the law, the holder can set up a claim for the value which has been added to the property by the guilty party in the act of cutting down the trees and removing the timber, is to give encouragement and reward to the wrong-doer, by providing a safe market for what he has stolen and compensation for the labor he has been compelled to do to make his theft effectual and profitable. We concur with the circuit judge in this case, and the judgment of the Circuit Court is Affirmed.^ SECTION VIII. CONFUSIOli. A. Lawful or Aoeidental. SMITH V. CLARK. Supreme Cotjrt of New York. 1839. [Reported 21 Wend. 83.] This was an action of replevin tried at the Yates circuit in June, 1838, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiffs declared for the taking and detaining of 75 barrels of wheat fiour. The defendant pleaded non, cepit and property in himself. On the trial the following facts appeared : Charles Hubbard owned a flouring and custom mill on the outlet of the Crooked Lake. In Decem- ber, 1834, the plaintiffs made an agreement with him to deliver wheat at his mill, and he agreed that for every 4 bushels and 55 pounds of wheat which should be received, he would deliver the plaintiffs one bar- rel of superfine flour, warranted to bear inspection in Albany or New York. The plaintiffs purchased from farmers and others nearly 2,000 bushels of wheat, which was from time to time delivered at tlie mill, 1 See United Coal Co. v. Canon City Coal Co., 24 Col. 116 ; Parker v. Waycross, ^•c, R. Co., 81 Ga. 387 j Hoxsie v. Empire Lumber Co., 41 Minn, 548. SMITH V. CLARK. 79 and put into a bin with other wheat which Hubbard purchased on his own account, and with the toll wheat taken by him from time to time. Hubbard delivered 230 barrels of flour to the plaintiffs, but that was not enough to satisfy his contract. On the 25th March, 1835, he sold 100 barrels of flour to the defendant, and in May following delivered him the 75 barrels of flour in question, in pursuance of the contract of sale. The plaintiffs brought this action and arrested the property on board a canal boat, in which the defendant had caused it to be shipped for market. Hubbard also sold between 30 and 50 barrels of flour at retail, and took 10 or 12 bushels of wheat for his own use. All the wheat manufactured and used by Hubbard was taken from the same bin. The plaintiff's attempted to prove that the 75 barrels of flour in question had been delivered to them by Hubbard. The defendant moved for a non-suit, which was refused, and raised other questions on the charge of the judge, which are noticed in the opinion of the court. The jury, under the charge of the judge, found a verdict for the plaintiffs, and the defendant now moved for a new trial. jff". Welles and S. Stevens, for defendant. S. Cheever, for plaintiff's. £y the Court, Bronson, J. The contract between the plaintiffs and Hubbard was, in effect, one of sale, — not of bailment. The property in the wheat passed from the plaintiffs at the time it was delivered at the mill, and Hubbard became a debtor, and was bound to pay for the grain in flour, of the specified description and quantity. There was no agree- ment or understanding that the wheat delivered by the plaintiffs should be kept separate from other grain, or that this identical wheat should be returned in the form of flour. Hubbard was only to deliver flour of a particular qualitj', and it was wholly unimportant whether it was manu- factured from this or other grain. Jones on Bail. 102, 64. A different doctrine was laid down in /Seymour v. Srown, 19 Johns. E. 44 ; but the authority of that case has often been questioned. 2 Kent, 589 ; Story on Bail. 193-194, 285 ; Buffum v. Merry, 3 Mason, 478 ; and the decision was virtually overruled in Hurd v. West, 7 Cow. 752, and see p. 756, note. The case of Slaughter v. Green, 1 Rand. (Va.) R. 3, is much like Seymour v. Brown, They were both hard cases, and have made bad precedents. There was, I think, no evidence which would authorize the jury to find that the flour in question had been delivered by Hubbard to the plaintiffs. There certainly was no direct evidence of that fact, and Hubbard himself testified expressly that there had been no delivery. The proof given bj' the plaintiffs of what Hubbard had said to others about the fiour in the mill was not necessarily inconsistent with his testimony. But if there had been a delivery, so that the property in the flour passed to the plaintiffs, they still labor under a difficulty in relation to the form of the remedy. Notwithstanding the transfer, the property 80 CHASE V. -WASHBUBN. was left in the possession and under the care of Hubbard. He was a bailee of the goods, and as such would have been answerable to the plaintiffs for any loss happening through gross negligence on his part. The defendant took the flour by delivery from the bailee, who had a special property in it. Such a taking is not tortious. Marshall v. Davis, 1 Wend. 109 ; IJarll v. Camp, 16 "Wend. 570. The plaintiffs should have counted on the detention, not on the taking of the goods. Bandall v. Cook, 17 Wend. 57 ; 10 Wend. 629. There must be a new trial. iVeio trial granted. CHASE V. WASHBURN. Supreme Coubt of Ohio. 1853. [Reported 1 Ohio St. 244.] Error to the Common Pleas, reserved in the District Court of Huron County for decision by the Supreme Court. The original action was assumpsit, in which the plaintiff, Wash- burn, sought to recover the value of a quantity of wheat, which had been delivered by him to the defendants. Chase & Co., as ware- housemen, engaged in the produce business, at the village of Milan, in said county. It appears from the bill of exceptions taken in the case that on the tiial of the cause in the Common Pleas, Washburn offered in evidence sundry warehouse receipts, given him by Chase & Co. for wheat de- livered at various times, between the month of October, 1847, and the month of August, 1849, amounting in the aggregate to six hundred bushels and more. The receipts are similar in form and effect, and the first in date, which maj^ be taken as a sample of the others, is as follows : — " Milan, O., Nov. 5, 1847. Received in store from J. C. Washburn (by son), the following articles to wit: Thirty bushels of wheat. H. Chase & Co." It further appears that the agent of Washburn was introduced as a witness, who testified that he had been instructed by Washburn, the de- fendant in error, when he delivered the first load of the wheat, not to sell the wheat for less than one dollar per bushel, and if he could not get that, to leave it in store with Chase & Co., the plaintiffs in error, and that he told Chase that Washburn had five or six hundred bushels to draw, and that Chase at the time told the agent, when he left the first load, that they (Chase & Co.) would pay the highest price when Washburn should call for it. The wheat was accordingly from time to time delivered, and in May, 1850, a demand was made for either the wheat or the money, and both refused. CHASE V. -WASHBUEN. 81 Chase then offered evidence tending to prove that his warehouse was burnt on the night of the 26th of October, 1849, and that there was then consumed in it sufficient wheat to answer all his outstanding receipts. He also offered evidence tending to prove that the custom at Milan was to store all wheat received in a common mass and to ship from the same as occasion required, and that this custom was understood by Wash- burn ; also that the custom was, when parties called for their pay, either to pay the highest market price, or deliver wheat to the holder of the receipts. Washburn then offered rebutting evidence, tending to prove that Chase had not sufficient wheat in his warehouse, at the time of the fire, to answer all his outstanding receipts, and also that the warehouse was emptied of all wheat between the date of the last receipt given Wash- burn and the time of the fire. ' Upon this state of facts the counsel for Chase asked the court to charge the jury, " that the customs at Milan, if known to Washburn, in the absence of an express contract, became a part of the contract be- tween the parties, and if the jurj' should find that Chase had sufficient wheat on hand at the time of the fire to answer all his outstanding re- ceipts, that he was not liable in this action, and that neither the min- gling of the wheat nor the shipment of it would make Chase liable, if he had a sufficient amount on hand at the time of the fire to answer his outstanding receipts." The court, however, refused to charge as requested. The bill of ex- ceptions sets out the charge of the court in full, to which the counsel for the defendants below excepted. The verdict and judgment was in favor of the plaintiff below, to reverse which this writ of error is brought. It is alleged for error that the court of Common Pleas erred in their charge as follows, to wit : — 1st. Because that court charged the jury, " that if they should find that the wheat was received and put in mass, with other wheat of defendant, and that received of other persons, with the understanding that the wheat was to be at the disposal of the defendant, either to re- tain or to ship it, and with the agreement that when the receipts were presented the defendant would either pay the market price therefor or re-deliver the wheat or other wheat equal in amount and quality ; then, if the jury should further find that the wheat thus left prior to the fire had all been shipped and disposed of, the defendant cannot be excused unless there was an agreement between the parties that the wheat sub- sequently purchased by defendant was to be substituted in place of that left by plaintiff, and to be his property." 2nd. Because the court charged the jury " that where a warehouse- man receives grain on deposit with an understanding that he may if he choose dispose of it, and that he will, when demanded, return other grain or pay for it, in case of such a disposition he is bound to do the one or the other. A subsequent purchase of grain by the warehouse- 6 82 CHASE V. "WASHBUEN. man, for the purpose of meeting the demand for grain thus received, would not be suflflcient to vest the property in the plaintiff." 3rd. Because that court refused to charge the jurj' that the custom at Milan, as proved by defendants if known to plaintiff, was a part of the contract between the parties. Osborne and Taylor, for plaintiff. Worcester and Pennewell, for defendant. Baetley, J. To determine which of the parties in this case shall sustain the loss of the property in question occasioned by the accident, it becomes necessary to ascertain the true nature and character of the transaction between them, and the rights created and duties imposed thereby. It was either a contract of sale, a mutuum, or a deposit. If a contract of sale, the right of property passed to the purchaser on delivery, and the article was thereafter held bj' him at his own risk. If a mutuum, the absolute propert)' passed to the mutuary, it being a delivery to him for consumption or appropriation to his own use ; he being bound to restore not the same thing, but other things of the same kind. Thus, it is held, that if corn, wine, monej', or any other thing which is not intended to be delivered back, but only an equivalent in kind, be lost or destroyed by accident, it is the loss of the borrower or mutuary ; for it is his property, inasmuch as he received it for his own consumption or use, on condition that he restore the equivalent in kind. And in this class of cases, the general rule is ejus est periculum-, cujvs est dominium,. Story on Bailments, § 283 ; Jones on Bailments, 64 ; 2 Ld. Raym. 916. But if the transaction here was a deposit, the prop- erty remained in the bailor, and was held by the bailee at the risk of the bailor, so long as he observed the terms of the contract, in so doing. But if the bailee shipped the wheat and appropriated the same to his own use, in violation of the terms of the bailment, before the burning of his warehouse, he became liable to the baUorforthe value of the propertj'. What then was the real character of the transaction between the parties ? The receipt I suppose to be in the ordinary form of ware- house receipts, and such as would be proper to be delivered by a warehouse depositarj- of wheat, to the owner, upon its being received into a warehouse, for temporary safe-keeping, and to be re-delivered to the owner on demand. The obligation or contract which the law would imply as against the warehouseman, on the face of such a receipt, would be, that he should use due diligence, in the care of the property, and that he should re-deUver it to the owner, or to his order, on demand, upon being paid a reasonable compensation for his services ; and if the warehouseman, under such circumstances, should, without the consent of the owner, mix the wheat with other wheat, belonging to himself or other persons, and ship the same to market, for sale, he would be liable to the owner for the value of the wheat thus deposited with him. The receipts themselves are silent as to the time the wheat was to be kept, the price to be paid for its custody, when or how to be paid, whose property it was to be after delivery into the warehouse, and what dis- CHASE V. WASHBUEN. 83 position was to be made of it. But it is claimed tliat, inasmuch as written receipts, whiether for money or other property, are always sub- ject to explanation by parol, that the terms on which this wheat was delivered can be explained by the declarations of the parties at the time of the delivery of the first load of wheat, and also by the custom of trade which prevailed among warehousemen at Milan ; and that, by such explanation it is shown that the real transaction was that the wheat was received, and, with the consent of the depositor, put in mass with other wheat of the warehouseman, and that received of other per- sons, with the understanding that the wheat was to be at the disposal of the warehouseman, either to retain or ship it, and that when the re- ceipts should be presented by the depositor the warehouseman should either pay the market price therefor or re-deliver the wheat, or deliver other wheat equal in amount and quaUty. If these terms were incorporated into the contract, they could not have excused the liability of the warehouseman in this case. The dis- tinction between an irregular deposit, or a mutuum, and a sale, is some- times drawn with great nicety, but it is clearly' marked, and has been settled by high authority. In case of a regular deposit, the bailee is bound to return the specific article deposited ; but where the depositary is to return another article of the same kind and value, or has an option to return the specific article, or another of the same kind and value, it is an irregular deposit or mutuum, and passes the property as fully as a case of ordinary sale or exchange. Sir William Jones says, " It may be proper to mention the distinction between an obligation to restore the specific things, and a power or necessity of returning others of equal value. In the first case, it is a regular bailment ; in the second it becomes a debt." In the latter case, he considers the whole property transferred. Judge Story, in his commentaries on the law of bailment, sa5-s, " The distinction between the obligation to restore the specific things, and the obligation to restore other things of the like kind and equal in value, holds in cases of hiring, as well as in cases of deposits and gra- tuitous loans. In the former cases, it is a regular bailment; in the latter, it becomes a debt or innominate contract. Thus, according to the famous laws of Alfenus, in the Digest, " if an ingot of silver is de- livered to a silversmith to make an urn, the whole property is trans- ferred, and the employee is only a creditor of metal equally' valuable, which the workman engages to pay in a certain shape, unless it is agreed that the specific silver and none other shall be wrought up in the urn." Story on Bailments, § 439. In all this class of cases, the risk of loss by unavoidable accident at- taches to the person who takes the control or dominion over the prop- erty. When, therefore, Washburn's wheat was delivered to Chase & Co., and became subject to their disposal, either to retain or to ship it on their own account, the property passed, and the risk of loss by accident followed the dominion over it. 84 CHASE V. -WASHBURN. The doctrine here adopted was at one time somewhat obscured by the opinion of Chief Justice Spencer, in the case of Seymours v. Brown, 19 John. Rep. 44, in which the court decided that where the plaintiflf delivered wheat to the defendants, on an agreement that for every five bushels of wheat the plaintiffs should deliver at the defendants' mill, they, the defendants, would deliver in exchange one barrel of flour, was a bailment, locatio operis faciendi ; and the wheat having been con- sumed by fire, through accident, the defendants were not liable on their agreement to deliver the flour. This decision, however, was disapproved of by Chancellor Kent, as not being conformable to the true and settled doctrine laid down by Sir William Jones, who has been stj-led the great oracle of the law of bailment. 2 Kent's Com. 464. And the decision has been distinctly' overruled by repeated subsequent adjudications in the State of New York. Hurd v. West, 7 Cowen, 752 ; Smith v. Clark, 21 Wend. 83 ; Norton v. Woodruff, 2 Comstock, 153 ; Mod- lory V. Willis, 4 Comstock, 77 ; and Pierce v. Skenck, 3 Hill, 28. The same doctrine has been aflSrmed in the case of Baker v. Roberts, 8 Greenleafs E. 101, and also Ewing v. French, 1 Blackford, 354. In the latter case, a quantitj' of wheat having been delivered by the plaintiff to the defendants, at their mill, to be exchanged for flour, and the defendants having put the wheat into their common stock of wheat, the mill, with the wheat, was afterwards casually destroj'ed by fire. The court held that the defendants were liable for a refusal to deliver the flour. If in that case the agreement of the parties had been that the flour to be furnished should be the flour which should be manufac- tured from the specific wheat delivered, instead of an exchange of wheat _ for flour, it would have been a bailment, and the loss would have fallen upon the plaintiff. In the ease of Buffum v. Merry, 3 Mason, 478, where the plaintiff had delivered to the defendant cotton j-arn on a contract to manufacture the same into cotton plaids, and the defendant was to find filling, and to weave so many yards of plaids, at eighteen cents per yard, as was equal to the value of the yarn at sixty-five cents per pound, it was held to be a sale of the yarn ; and that, by the delivery of it to the defend- ant, it became his property, and he was responsible for the delivery of the plaid, notwithstanding the loss of the yarn by an accidental fire. But had the plaintiff and the defendant agreed to have the particular yarn, with filling to be found by the defendant, made into plaids on joint ac- count, and the plaids, when woven, were to be divided according to their respective interests in the value of the materials ; but, before the division, the plaids had been destroyed by accident, the loss, in the opinion of Judge Story, would have been mutual, each losing the mate- rials furnished by himself. The case of Slaughter v. Green, 1 Randolph, 3, and also the case of Inglebright v. Hammond, 19 Ohio Rep. 337, are relied upon as sus- taining the plaintiffs in error. These two cases, on examination, do not sustain the doctrine of the case of Seymours v. Brown, above referred to CHASE V. "WASHBURN. 85 in 19 Johns. Rep. On the contrarj', instead of an exchange of wheat for flour, in each of the cases, by the express terms of the contract, the flour to be returned was to be manufactured out of the wheat furnished. In the former case, the written receipts given for the wheat expressly provided, " that it is received to be ground" which excludes the idea of passing the ownership to the miller. And in the latter case, it was also expressly provided by the agreement, that the flour in controversy was '•'■to be made out of the icheat furnished by Hammond," and " the flour made therefrom was to be delivered at Steubenville for said Hammond's use." In both these cases, therefore, the limitation in the agreement of the parties imported a bailment, and not an exchange for flour. And this character of the transaction is not lost either because the custom of the countrj' in reference to which the wheat was received, waiTanted the mixing of it with the wheat of others, received on like terms ; or because, by the express consent of the parties, the wheat was mixed with other wheat in the mill, belonging to the miller himself. When the owners of wheat consent to have their wheat, when delivered at a mill or warehouse, mixed with a common mass, each becomes the owner in common with others, of his respective share in the com- mon stock. And this would not give the bailee any control over the property which he would not have, if the wheat of each one was kept separate and apart. If the wheat, thus thrown into a common mass, be delivered for the purpose of being converted into flour, each owner will be entitled to the flour manufactured from his proper quantity or pro- portion in the common stock. If a part of the wheat held in common belong to the bailee himself, he could not abstract from the common stock any more than his own appropriate share without a violation of the terms of the bailment ; and such a breach of his engagement could not be cured by his procuring other wheat, to be delivered to supply the place of that thus wrongfully taken. But if the wheat be thrown into the common heap, with the understanding or agreement, that the per- son receiving it, may take from it at pleasure and appropriate the same to the use of himself or others, on the condition of his procuring other wheat to supply its place, the dominion over the property passes to the depositarj', and the transaction is a sale, and not a bailment. It is claimed that the court of Common Pleas erred in refusing to charge the jury, as requested, that the custom among warehousemen at Milan, in the absence of an express contract, if known to Washburn, became a part of the contract. A custom, it is true, is not admissible, either to contradict or alter the terms or legal import of a contract, or to change the title to prop- erty by varying a general rule of law. But a custom, when fully estab- lished, becomes the law of the trade in reference to which it exists ; and the presumption is that the parties intended to conform to it, when they have been silent on the subject. Its office is to interpret the other- wise indeterminate intentions of the parties, and to ascertain the nature and extent of their contract, arising not from express stipulations, but 86 LEDYAED V. HIBBAED. from mere implications and presumptions, and of acts of doubtful and equivocal character. I am not prepared to saj' that the customs at Milan, if fully established, and known to both the parties to a contract, for the delivery of wheat to a warehouseman, may not be regarded as law, as well as the customs of London, or of Kent. But, unfortunately for tlie plaintiffs in error, the customs of Milan, as the evidence tended to prove, according to the bill of exceptions, very clearly showed the transaction between the parties in this case, to be a contract of sale, and not a bailment. Had the court, therefore, charged as requested upon this point, it could not have aided the defence set up against the action. So that if the court did err in this particular, no injury was therefore done to the plaintiffs in error. Judgment affirmed.^ LEDYAED v. HIBBAED. Supreme Court op Michigan. 1882. [Reported 48 Mich. 421.] Eeplevin. Defendants bring error. Affirmed. Blair, Kingsley & Kleinhaus, for appellant. Norris t& Vhl, for appellee. CooLET, J. Eeplevin for a quantity of wheat. The following facts were developed on the trial : The firm of Hibbard & Graff, composed of Wellington Hibbard and Peter Graff, Jr., were merchant millers in Grand Eapids, owning and operating two mills, known respectively as the Crescent and the Valley City. With each mill was an elevator in which they stored wheat for their own purposes, and also received and stored for farmei's and others. Plaintiff, from time to time, from March, 1878, to March, 1880, deliv- ered to them wheat which they received into their elevators. The man- ner of doing the business was as follows : The wheat was drawn from the plaintifTs farm in wagons, discharged into the weighing hopper and elevated into the mills, where it was deposited in bins with other wheat of like kind and quality. A slip or ticket specifying the weight of the load was delivered to the driver of the team, and when a sufficient num- ber of these were gotten together the plaintiff surrendered them to the firm, and received in lieu a receipt on a printed blank. The receipts taken were all of the same form, and the following is a copy of one of them : "JVo.dG. 820 bus. Crescent Mills. "Grand Eapids, Mich., March 26, 1878. " Eeceived of William B. Ledyard b^' L. Byrne 820 bushels number One wheat at owner's risk from elements, at 10 cents less Detroit quo- tations for same grade when sold to us. " Stored for days. " Hibbard & Graff." 1 See Rahilli/ v. Wilson, 3 Dillon, 420. LEDTAED V. HIBBABD. 87 The wheat was all stored with plaintiffs knowledge in bins, from which the firm drew from daj' to daj' for the purposes of their business and manufacture. The quantity in the bins changed from daj' to day as it was depleted by drafts and replenished by new deposits. No stor- age was ever charged, and the dealings between the parties remained entirely unsettled and open until the failure of Hibbard & Graff in March, 1880. Plaintiff, according to his evidence, then demanded his wheat, and failing to obtain it brought this suit. The defendants undertook to show that he demanded not the wheat but the price of it; but on this point the verdict of the jury was against them. Upon the facts the question of law is presented whether the receipts which the plaintiff took from the firm evidenced a sale or a bailment. If the wheat was sold to Hibbard & Graff when it was delivered to them, it was not pretended that this action would lie ; but the plaintiff con- tended that the delivery of the wheat constituted a bailment, and that it was at his option afterwards to take the value at ten cents less than Detroit quotations, or to receive back the wheat or an equal quantity of the same kind and quality. Storage in the elevators with other wheat, it was claimed, only makes the plaintiff owner in common with others, and he had a right to reclaim his own at any time, as long as the requi- site quantity remained. The defendants on the other hand contended that the case differed radically from the ordinary case of the storage of grain in elevators. The wheat deposited in this case became part of a common stock with the wheat of the millers themselves, and was in their hands for consumption in their discretion ; the millers might use and consume as their own the whole ; it was not delivered to them for the primarj' purpose of storage simpliciter, but in addition to the bailment it was with the understanding that it might be and would be put into the current consumable stock. And the general proposition is asserted that where grain is deposited with any person with the understanding that he may use it on his own account, and when the depositor desires to sell, that the other will pay the highest price, or return a like quan- tity or quality, the transaction, if not an immediate sale, is a sale at the option of the receiver. Nelson v. Brown, 44 Iowa, 455 ; Sexton v. Graham^ 53 Iowa, 181 ; Nelson v. Brown, 53 Iowa, 555. It was agreed on both sides that the " owner " mentioned in the re- ceipt must be understood to be the depositor — the plaintiff. As by the receipt the grain was declared to be at his risk, for the time being, it must have continued to be at his risk until some act was afterwards done by one party or the other to convert what at first was manifestly a bailment into a sale. The plaintiff could not be creditor for the pur- chase price so long as he remained owner, and the receiptors could not be debtors for the purchase price so long as the risks of accidental de- struction remained upon the depositor. The depositor would convert the bailment into a sale by notifying the receiptors of his election to receive the price fixed according to the terms of the contract ; and the receiptors, it is claimed, would convert it into a sale by consuming the 88 LEDYAED V. HIBBAED. wheat in the regular course of their business, as the parties must have understood it was likelj' they would do. The question now made could not have arisen if the warehousemen had not been millers as well. But unless the local usage, or the course of dealings between the parties referred to further on, shall be found to affect the case, the fact that the receiptors for the wheat transacted business in the two capacities of warehousemen and millers, would not be of importance, and certainly could not affect the construction of their business contracts. If as warehousemen they gave warehouse receipts for grain received in store, the receipts must be construed by their terms and by commercial usage ; in commercial circles they would be under- stood to represent the title to the quantity of grain specified ; and though the quantity in store might fluctuate from day to day as grain would be received and delivered out, this would not affect the title of the holder of receipts, who would be at liberty to demand and receive his proper quantity at any time, if so much remained in store. But if the quantity in store is reduced by consumption instead of by shipment or sale, it is not apparent that the rights of the holder of the receipts should be any different. It is true if the wheat is all consumed, and the amount in store is not kept good so that a demand for the wheat can be responded to, and if the consumption is by consent of the owner, express or im- plied, the consumption under such circumstances may be justly regarded as a meeting of the minds of the parties upon a sale ; but so long as grain is kept in store from which the receipts may be met, the fair pre- sumption is that it is intended they shall be so met ; and this presump- tion would only be overcome by some act unequivocal in its nature. The circuit judge instructed the jury that in the absence of any elec- tion by the plaintiff to take the price, the bailment continued so long as any portion of the wheat deposited by the plaintiff remained in store, and he was entitled to take the quantity specified in his receipts from any that remained in store with which his own wheat had been min- gled. The judge may perhaps have erred in attaching importance to the question whether any portion of the identical grain deposited by the plaintiff remained in store, but if so the error favored the defendants and they cannot complain of it. There are other questions, however, arising upon an offer of defend- ants to show a local usage, in the light of which they claim the receipts are to be construed ; and also a course of dealing between the parties which it is supposed will bear upon the construction. The evidence upon these subjects was received by the circuit judge provisionally, but afterwards stricken out. The evidence as to the dealings between the parties was not very conclusive in its tendency. Mr. Hibbard testified that he had received wheat from the plaintiff in the same way ever since 1874, and that always when the plaintiff got ready to sell, he called for his pay and received it. Every bailment thus became a sale. His testimony tended to show, also, that Hibbard & Graff were never storers of grain except LEDYAKD V. HIBBAED. 89 for the purposes of manufacture. The plaintiff himself testified that he never sold to Hibbard & Graff but twice; the last time being in 1877. But if the receipts which are in evidence implj-, as we think they do, an option in the holder to name his time and take the price, or instead thereof to demand the wheat, it cannot be important that under two or many similar receipts the plaintiff had on previous occasions elected to sell. If he found millers here with storage facilities, and stored his grain with them under contracts which reserved to him an option, the reservation of the option implied that he might on different occasions exercise it differently. An option is reserved to give that liberty ; and however often the choice may be exercised the same way, the liberty will still remain while the same contract remains to be entered into. Choosing alike many times can imply no promise or understanding that the choice shall be made always. The evidence of local usage was altogether insufficient to establish a custom. It was testified that the millers of Grand Rapids were accus- tomed to receive wheat in their mills from farmers and others, and that the depositors called when they pleased and took the market price. But there was no evidence of any general usage in Grand Rapids for the millers to receive wheat in store and issue for it receipts like those issued by Hibbard & Graff and which are in question here. The evi- dence on the other hand rather tended to show that these receipts were in some respects peculiar, and especially in the clause which provided that the wheat should be at the owner's risk. Usage can never change the written stipulations of parties, though it may aid in the explanation of their terms, and perhaps add incidents in respect to which they are silent : Eager v. Atlas Ins. Co., 14 Pick. 141 ; Pavey v. JBurch, 3 Mo. 447 ; Farrar v. Staclcpole, 6 Me. 154 ; Randall v. Smith, 63 Me. 105 ; s. c 18 Am. Rep. 200 ; Boorman v. Jenkins, 12 Wend. 566 ; Dawson V. Kittle, 4 Hill, 107; Erwin v. Clark, 13 Mich. 10; N.T. Iron Mine T. Citizens' Bank, 44 Mich. 345 ; and the requirement that it shall be certain, definite, uniform and notorious is imperative. Kendalls. Bus- sell, 5 Dana, 501 ; Parrott v. Thacher, 6 Pick. 426 ; Thwing v. Great Western Ins. Co., Ill Mass. 109. "Doubt must be wholly eliminated from the evidence adduced or the usage is not well proved." Adams V. Pittsburg Ins. Co., 76 Penn. St. 411, 414. This general principle is illustrated by numerous cases, among which are Whitney v. Ocean Ins. Co., 14 La. 485 ; s. c. 33 Am. Dec. 598 ; Button v. Magrath, Dud- ley, 159 ; s. c. 31 Am. Dec. 552 ; Touro v. Cassin, 1 Nott & McC. 173 ; s. C. 9 Am. Dec. 680 ; Walls v. Bailey, 49 N. Y. 464 ; Harris v. Tumbridge, 83 N. Y. 92 ; Isham v. Fox, 7 Ohio St. 321 ; Sarper v. Pound, 10 Ind. 32 ; Zamb v. Klaus, 30 "Wis. 94 ; Sinton v. Colenmn, 45 "Wis. 165 ; Kilgore v. Bulkley, 14 Conn. 390; Bissell v. Byan, 23 111. 566 ; Leggat v. Sands Ale Co., 60 111. 158 ; Walsh v. Mississippi, &c. Co., 52 Mo. 434 ; Ober v. Carson, 62 Mo. 209 ; Smith v. Oibbs, 44 N. H. 335 ; McMasters v. Railroad Co., 69 Penn. St. 374 ; Potts V. Aechternmacht, 93 Penn. St. 138. 90 JAMES V. PLANK. The jury gave their verdict for the plaintiflf under instructions which were unexceptionable, and the judgment in his favor must be affirmed with costs. Campbell and Makston, JJ., concurred. JAMES & NEER v. PLANK Ex'b. SuPKEME Court of Ohio. 1891. [Repmted 48 Ohio St. 255.] Error to the Circuit Court of Logan county. The defendant in error brought his action in the Court of Common Pleas of Logan county to recover the value of a quantity of wheat, which, in his petition, he alleged was sold by him as executor, on or about the 18th day of August, 1886, to the plaintiffs in error, who were partners in trade engaged in the business of purchasing, shipping and selling wheat. Issue was joined by answer and reply. The principal question to be determined was whether the deliverj' of the wheat by Plank was a sale or a bailment, the claim of the defendant below being that the transac- tion was a bailment, and that the wheat was, on the 26th daj' of August following, without fault on their part, burned except a small portion, of the value of $36.16, which amount had been tendered. At the conclusion of the evidence the court instructed the jury that under the undisputed facts the plaintiff was entitled to recover the value of the wheat at the time of delivery, with interest, and a verdict for the plaintiff was found accordingly. Judgment was rendered upon the verdict, which was affirmed b^' the circuit court, and to reverse these judgments this proceeding in error is brought. Keifer & Keifer, for plaintiffs in error. L Assuming that the answer sets up a good defence, and is supported bj' testimony as to its substantive averments, the common pleas court erred in its direction to the jury. If there was any evidence tending to prove James & Neer's case, the charge of the court was erroneous. Dick V. Railroad Company, 38 Ohio St. 389 ; Whelan v. Kinsley, 26 Ohio St. 131 ; Turner v. Turner, 17 Ohio St. 449 ; Bichardson v. Curtiss, 33 Ohio St. 339. II. Ignoring the question of custom, set out in the answer and proved on the trial, we confidently claim that the transaction of delivering the wheat at the warehouse, commingling it with other wheat of like kind therein, without any agreement to sell, and receiving weigher's receipts therefor, of the character taken, create a bailment, and not a sale. JAMBS V. PLANK, 91 Inglebright v. Hammond, 19 Ohio, 337, 346 ; 6 Am. Law Rev., pages 467, 469 ; 24 Am. Dec. 143, 155 ; Story on Agencj', 229 ; Chase v. Washburn, 1 Ohio St. 244 ; 2 Kent's Commentaries, 13th ed., 365 and notes, 590 and notes ; 2 Parsons on Contracts, 137 ; Cushing v. Breed, 14 Allen, 376, 380 ; Young v. Miles, 20 Wis. 615 ; Mowry v. White, 21 Wis. 417 ; Young v. Miles, 23 Wis. 643 ; Stearns v. Baymond, 26 Wis. 74 ; Newton v. Howe, 29 Wis. 531 ; Kimherly v. Patchin, 19 N. Y. 330 ; Russell v. Carrington, 42 N. Y. 118 ; M. & M. Bank v. Hibbard, 48 Mich. 118 ; Ledyard v. Hibhard, 48 Mich. 421 ; Nelson y. Brown, 44 Iowa, 455 ; Irons v. Kentner, 51 Iowa, 88 ; Arthur w. C, R.I.f&P. Railway, 61 Iowa, 648 ; Sexton & Abbott v. Graham, 53 Iowa, 181 ; Odell, assignee, v. Leyda, 46 Ohio St. 244 ; Benjamin on Sales, sec. 1 ; Wells on Replevin, sees. 3, 203, 205. III. If the transaction, as it appears bj' the weigher's receipt and otherwise, does not alone show the bailment of the grain, then the evidence of custom or usage would make the delivery of the grain a bailment. An established custom has the force of law. 2 Disnej', 482 ; Steel Works v. Dewey, 37 Ohio St. 242 ; 15 Ohio St. 571 ; Foster v. Robinson, 6 Ohio St. 90 ; Steel Works v. Dewey, 87 Ohio St. 242 ; Newhallv. Langdon, 39 Ohio St. 87; ILowe v. Lehman, 15 Ohio St. 179; Rodgers\. Woodruff , 2Z Ohio ^t. &Z2 ; 11 Ohio, 364, 367 ; Iro7is V. Kentner, 51 Iowa, 91 ; 77 Ills. 305 ; 87 Ills. 556. West, Drown & West, for defendant in error. In the case at bar, the warehouse receipts contain no suggestion of storage, bailment or risk. And nothing whatever was said by either of the parties in regard thereto. It was the delivery by the executor in the regular course of trade of a quantity of wheat to parties engaged in the business of buying, shipping and selling grain, and in no other business whatever. It must, therefore, be held to have been received "by them in their regular course of business as merchants so engaged for the purpose of their trade, and therefore constituted a sale to them, unless the circumstances showed the contrary. Plaintiffs in error seek to avoid this by evidence of local custom, contending that by such cus- tom the wheat when delivered was a mere bailment, and continued to be the property of the executor until he should present the weigher's receipt and demand payment therefor ; that he had the option either to demand paj-ment, or a return of the wheat, or demand and receive a regular storage certificate in the terms before set out, and that until he demanded payment, or a regular storage receipt, or a return of tlie wheat, the bailment was at his risk. Custom is the growth of usage continuously practised for a long period. 1 Bouvier's Die. 359 ; Ingle- bright V. Hammond, 19 Ohio, 337. Again, the claim that the holder of such weigher's receipts had the customary right to surrender it at pleasure and demand and have a regular storage certificate, is unsupported. Every such storage cer- tificate was a special contract or agreement between the parties. It specially stipulated the length of time the grain might remain in store 92 JAMES V. PLANK. free of charge ; that it should remain only at the owner's risk ; and that if he withdrew it five cents per bushel would be charged for handling the grain, together with regular storage charges for the time it remained. This is an express contract formally executed, and not an agreement created by or implied from custom or usage. But if it were otherwise, the habit of giving such storage certificates when requested furnishes no evidence tending to prove that the grain represented by it was held in store previous to its issue, or was the prop- erty of him to whom issued previous thereto, while he held the weigher's certificate only. Such storage certificate might upon a sufficient con- sideration have been issued to any one who never had or delivered a bushel of wheat, and yet the parties to the certificate be bound bj- all its terms and stipulations precisely the same as in case of previous delivery by a customer. So if one delivering upon an actual sale, should after- wards change his notion and request a certificate of deposit, the merchants might assent and issue it, in which case it cannot be contended that the grain represented by the certificate had been previously held in store for, and as the property of, the holder of the weigher's certificate. An actual sale may be afterwards converted into a bailment, by stipulation and agreement of the parties. If the executor in the case at bar after delivery of the wheat in controversy had changed his purpose, and upon agreement with the merchant, accepted a storage certificate of the char- acter before set out, it is quite clear that he could not have maintained this action on the authority of O'Dell v. Leyda. The certificate would have shown that at the time of the destruction of the warehouse his wheat was held in store at his own risk. But he never requested a storage certificate and never delivered any wheat as executor for the purpose of storage, but as upon a sale only. Where grain is delivered by a customer to a grain merchant engaged in the business of buying, shipping and selling grain, and nothing is said at the time for what pur- pose, the presumption is that a sale thereof is intended, and that the delivery is upon sale. If nothing be said about the price, the pre- sumption is that it is a sale at the market price. Such was the case at bar. For the distinction between a bailment and a sale, see Benjamin on Sales, sec. 2, note 1. Speae, J. The question is : did the court of common pleas err in directing a verdict for the plaintiff below ? If, as was assumed by that court, the undisputed evidence established that the transaction was a sale, then the direction was right, but if the whole evidence left a fair question as to whether it was a sale or a bailment, then the question should have been submitted to the jury. It was shown by the evidence that the wheat was delivered by an employee of the plaintiff, at the warehouse of the defendants, on the 17th and 18th days of August, 1886, and received by a clerk or foreman employed at the warehouse, who, as the loads came, issued receipts in substance like the following : JAMES V. PLANK. 93 "No. 1721. DEGEArF, 0., August 17, 1886. "James & Neer. ' ' Received of J. C. Plank, (Administrator), load of wheat, 11 bushels, 5 pounds. " Not transferable. Present this at office. " J. H. McKiNNiE, Weigher." The wheat, when deposited, was mixed with other like wheat in the warehouse, some belonging to the defendants and some to others for whom it had been received in store. On the 26th day of August, 1886, a fire occurred which consumed the warehouse and nearly all the wheat there at the time. The fire was without fault on the part of the defendants. At that time none of the receipts had been presented at the office. Shortly after the fire Plank demanded of James & Neer pay for all the wheat delivered, which was refused. Tliey, however, tendered $36.16 as his share of damaged wheat which had been sold after the fire. "Within the previous j-ear Plank had delivered to the defendants at the same warehouse from eleven to twelve hundred bushels of wheat, for which he took weigher's receipts in form similar to the copy given, which he subsequently presented at the office and received in exchange storage receipts, a copy of one of which is as follows : " James & Neer, "dealers in grain & seeds. " No. 240. DeGraff, O., January 5, 1886. " Received of Joseph C. Plank, four hundred and fifty-two bushels and 35 pounds of wheat (452 35-100 bushels). Subject to the following rules : " Storage free until June 1, 1886. One cent per bushel per month or any part thereafter. All grains stored at owner's risk. We will not be responsible for loss or damage in any way. Grain taken out of house by owners, five cents per bushel and usual storage. ' ' James & Nebk.'' This wheat was subsequently sold to the defendants. The evidence further tended to show that James & Neer were at the time, and had been for several years, engaged in storing wheat as ware- housemen, as well as in buying and selling ; that they sold and withdrew from the common mass, but never so much but that there was left sufficient to return to each depositor his proper quantity ; and that, when the fire occurred, they had in the warehouse between 200 and 300 bushels of wheat in excess of the quantity necessary to satisfy all depositors, including Plank. The evidence further tended to show the existence of a custom of dealing in vogue for many j'ears at that and other warehouses in the neighborhood, of which Plank had knowledge, to the effect that grain deposited in the warehouse, for which weigher's receipts were given, 94 JAMES V. PLANK. was regarded as grain in store until such receipts were presented at the office, when the owner had the option to exchange the weigher's receipts for a storage receipt and continue the storage upon the terms specified in that form of receipt, or to sell at the price ruling the day such weigher's receipts were presented ; and that the receiving of the wheat and the giving of the weigher's receipts did not constitute a sale of the wheat, but that it remained the property of the depositor until the weigher's receipts were presented at the office and an election to sell made. Let us examine and ascertain the effect of this evidence in order to determine the duty of the trial court with respect to it. The naked fact of the delivery of the wheat and the terms of the weigher's receipts are consistent with either a sale or a bailment. It being shown further, however, by plaintiflfs' evidence that James & Neer were buyers and sellers only of grain, it might well be claimed that the delivery and the receipts imported a sale. But the added character of warehousemen presented a new question. This question would have been removed, and the plaintiffs' claim again sustained, had it appeared that James & Neer appropriated the grain to their own use by shipping, so as not to leave a quantity sufficient to satisfj' depositors, for, in such case, it might fairly be presumed that the owner and receiptor had agreed upon a sale to the latter. Besides, while the mere option to elect to treat a bailment as a sale at some future time does not deprive it of its character of a bailment ( Colton v. Wise, 7 111. App. 395 ; Plow Go. v. Porter, 82 Mo. 23 ; Ledyard v. Hihbard, 48 Mich. 421), yet, where the de- positary appropriates to his own use more than his proportion of the common mass the depositor may elect to treat the transaction as a sale, and demand pay for the wheat delivered. , So that if at all times James & Neer left enough to return to each depositor, including Plank, his proper quantity, the depositors remained tenants in common of the mixed mass, each entitled to such proportion as the quantity placed there by him bore to the whole mass, and Plank, if a depositor origi- nally, would remain such, because the mere fact that the warehousemen mixed the wheat of all of like quality in one common mass and shipped and sold, from time to time, from the mass, their proportion onlj', would not work a change in the ownership of the wheat, and it would follow that the fact of mingling and of such shipping and sale would not deter- mine that the transaction was a sale rather than a bailment. Ingle- tright v. Hammond, 19 Ohio, 337; Chase v. Washhum, 1 Ohio St. 244 ; Odell V. Ley da, 46 Ohio St. 244 ; Rice v. Nixon, 97 Ind. 97. No doubt whatever exists that the warehouseman may become a tenant in common like any other depositor, and may be permitted to enjoy the same right of severance without affecting the title of his co-tenants. Sexton & Abbott v. Graham, 53 Iowa, 181. So that further proof was necessary to ascertain to which class the transaction belonged. No one will doubt that the parties were competent to make a contract either of sale or of bailment. And the parties having failed to make either directly, by spoken words or in writing, the circumstances sur- JAMES V. PLANK. 95 rounding the transaction and the parties at the time were to be resorted to in order to ascertain the real character of the business done. So, evidence having been given tending to show that the defendants were warehousemen as well as buj^ers of grain, if a custom of trade prevailed in the community, certain, definite and uniform, and so notorious that it might be presumed to have been known to the plaintitf, throwing light on the understanding of the parties, and tending to show in which capacity the defendants received the wheat, that was competent to be considered. Ledyard v. JSihiard, supra. Such custom might give color to the otherwise doubtful acts of the parties so as to aid in arriving at their understanding, and it was necessary to ascertain that understanding in order to determine the legal effect of the transaction between them. This is the precise purpose and office of proof of a custom. Inglebright v. Hammond, supra. It in no waj' can be said to change the law. On the contrary, it may aid in determining the law. The trial court assumed, that, upon the undisputed facts, a sale was conclusively shown, and that a question of law only remained. In this, we think, the court erred. Upon the whole evidence intelligent minds might reach a different conclusion, and wherever that state of the evi- dence exists it presents a case for the jury, under proper instructions. If the jury should find, from the evidence, that the understanding be- tween the parties was that James & Neer were to mingle the wheat received of Plank with other wheat and sell and ship at their pleasure, and that the direction in the weigher's receipts to " present this at office " was for the purpose only of indicating to the holder where he could get his pay, or, if the understanding was that thej' were to mingle the wheat with other wheat of like kind and sell only their own pro- portion, keeping enough for all depositors, and yet, in disregard of this, they actually did sell at their pleasure, not leaving enough on hand for depositors, then the verdict for the plaintiff as rendered would have been justified. But if, on the other hand, the jury should be satisfied from the evidence that the custom as claimed by defendant actually existed, was known to plaintiff, and from it and other facts appearing, that the understanding was that though the wheat might be mingled with other wheat belonging in part to depositors and in part to defend- ants, yet that defendants were to sell from the common mass, from time to time, their proportion onlj', leaving sufHcient on hand to satisfy all depositors, and the defendants observed this understanding ; and es- pecially if, in addition to the foregoing, they found further that the dis- tinct understanding of the parties was, by virtue of said custom, that the wheat was to be regarded as in store until Plank should elect to make a sale of it, then, it appearing that no demand for the pay had been made by presentation of receipts at the oflSce, or otherwise, before the fire, the jury would have been justified in finding for the defendants. It is insisted that the court below is sustained by the case of Chase V. Washburn, supra. "We think not. In that case Washburn delivered 96 JAMES V. PLANK. to Chase several hundred bushels of wheat, taking receipts, as delivered, expressing that the wheat was " received in store." The wheat was delivered between October, 1847, and August, 1849. In May, 1850, demand was made for either wheat or money, which was refused. Washburn's evidence tended to prove further that he had instructed his agent who delivered the wheat not to sell unless he could get a dollar per bushel, and if he could n't get that to leave it in store, though it did not appear that this instruction was communicated to Chase ; that Chase was informed that Washburn had five or six hundred bushels to draw, and, when the first load was delivered, that Chase said thej' would pay the highest market price when Washburn should call for it. Chase's evidence tended to show that his warehouse was burned October 26, 1849, and that there was consumed in it sufficient wheat to answer all outstanding receipts. Also, that the custom at Milan was to store all wheat received in a common mass and to ship from the same as occasion required, which was known to Washburn, and that the custom also was, when parties called for their paj% either to pay the highest market price, or deliver wheat to the holder of the receipt. Washburn's rebutting evidence tended to establish that Chase had not sufficient wheat in his warehouse at the time of the fire to answer all his outstanding receipts, and that the warehouse was emptied of all wheat between the last receipts given Washburn and the time of the fire. The gist of the defendant's claim as to the law was summed up in his request to charge as follows: That the " custom at Milan, if known to Washburn, in the absence of an express contract, became a part of the contract between the parties, and if the jurj- should find that Chase had sufficient wheat on hand at the time of the fire to answer all his out- standing receipts, that he was not liable, and that neither the mingling of the wheat nor the shipment of it would make him liable if he had sufficient amount on hand at the time of the fire to answer his outstand- ing receipts. " This the court refused to give, but charged the converse of the proposition. It is manifest that the strongest position Chase could claim was that the transaction was a mutuum. It left Chase the right to sell and ship at his pleasure, and pay either in monej- or wheat. The practical effect of a mutuum must always be to transfer the title of the chattels de- posited. Otherwise the depositary would not have the unqualified right to sell. The custom introduced lacked definiteness as to one feature of it, and, taken altogether, imputed a sale. Hence it was proper for the court to refuse to charge as requested. The charge as given was cor- rect, and the verdict being for plaintiff, he was entitled to judgment. And the affirmance of the judgment was clearly right. The reasons for the decision stated by Bartley, J., in the opinion, are given with the usual clearness and learning of that eminent jurist, aud nothing further need be added. A sufficient distinction between Chase v. Washburn and the case at bar is that, while in the former case the evidence relied on by Chase JAMES V. PLANK. 97 tended to prove that the warehouseman was to have the right to sell upon the condition only that he have wheat enough on hand to satisfy Washburn when he should call, or pay monej"^, in the present case the evidence relied on b^' the warehousemen tended to prove that they were to have the right to sell only their own portion of tte common mass, and sold no more than that, having at all times prior to the fire enough to satisfy all the depositors. In the one case the defendant's own evi- dence disclosed that the title to the wheat passed ; in the other, if the defendants' claim was established, it did not pass. Judgment reversed} ^ " In the cases which we have now gone over the argument is very strong that there is a sale to the owners of the elevator, and it has already been fully stated. At the same time it cannot be denied that if the law is so, it will be followed by injustice and inconvenience. Undoubtedly those who deliver grain to an elevator think they have something more than the personal liability of the warehouseman, and regard him as their bailee in charge of their property. The holders of accepted orders look upon them as representing property in like manner. If the transaction is regarded as a. sale, the safety of receipt-holders depends upon the warehouseman's solvency ; if the doctrine which will be advocated here prevails, they run no risk unless he is both insolvent and dishonest. Of course, the opinion of merchants as to the nature of the transaction is not conclusive. As is observed by the Lord Justice James in a late case, 'there is no magic in the word "agency." It is often used in commercial mat- ters, wlien the real relation is that of vendor and purchaser.' Ex parte White. In re Nevill, L. R. 6 Ch. 397, 399. But it is undoubtedly desirable to work out the expectations and intentions of the parties if the machinery of the law admits it. Suppose that warehousemen became insolvent, having always been careful to keep a quantity of grain in store corresponding to the amount for which they had receipts out, would not the holders of the receipts have a right to feel that they were unjustly treated, unless they were preferred to the general creditors in their claim upon that grain ? Let us look at it a little more exactly. " Suppose I deliver a copy of the General Statutes of Massachusetts, or other book easily purchasable in the market, to an agent to keep, telling him, however, that he may sell it at any time, provided that he will immediately appropriate another copy to me upon doing so, and give him like power of sale and substitution as to all suc- ceeding copies. The title in the copy for the time being appropriated to me, to be vested in me. Is not that a perfectly possible transaction ? The analogies of the law show that the title to a substituted volume would vest in me as soon as it was definitely appropriated to me. Aldridge v. Johnson, 7 El. & Bl. 885, 898, per Lord Campbell, C. J. ; Langton v. Higgins, 4 H. & N. 402. " Would it make any difference if the agent also had power to mix the volume with others belonging to third persons, from which it was not distinguishable, each owner being at liberty to call for one at any time ? Would it make any difference that he was at liberty to add others of his own, if he was only at liberty to withdraw as many as he put in?" — 6 Am. Law Rev. 464, 465. See Lyon v. Lenon, 106 Ind. 567; Sexton v. Graham, 53 Iowa, 181; Barnes v. McCrea, 75 Iowa. 267; Hall v. Pillshury, 43 Minn. 33; Bretz v. Diehl, 117 Pa. 589. Tor the rule in cases of accidental confusion, see Spence v. Union Marine Ins. Co., L. E. 3 C. P. 427; Moore v. The Erie Railway Co., 7 Lansing, 39. 98 "WARD V. AYEB. B. Tortious. ANONYMOUS. Queen's Bench. 1593. \Repmied Pop. 38, pi. 2.] In trespass for carrying away certain loads of hay, the case hap- pened to be this : The plaintiff pretending title to certain hay which the defendant had standing in certain land, to be more sure to have the action pass for him, took other hay of his own (to wit, the plain- tiff) and mixed it with the defendant's hay, after which the defendant took and carried away both the one and the other that was intermixed, upon which the action was brought, and by all the court clearly the defendant shall not be guilty for anj' part of the hay, for bj^ the inter- mixture (which was his own act) the defendant shall not be prejudiced as the case is, in taking the hay. And now the plaintiff cannot say which part of the hay is his, because the one cannot be known from the other, and therefore the whole shall go to him who hath the prop- erty in it with which it is intermixed, as if a man take my garment and embroider it with silk, or gold, or the like, I may take back my garment, but if I take the silk from j'ou, and with this, face or em- broider my garment, you shall not take my garment for your silk which is in it, but are put to the action for taking of the silk from you. So here, if the plaintiff had taken the defendant's hay and carried it to his house, or otherwise, and there intermixed it with the plaintiff's hay, there the defendant cannot take back his hay, but is put to his action against the plaintiff for taking his hay. The difference appear- eth, and at the same day at Serjeants' Inn in Fleetstreet, the difference was agreed by Anderson, Periam, and other justices there, and this case was put by Anderson : If a goldsmith be melting of gold in a pot, and as he is melting it, I will cast gold of mine into the pot, which is melted together with the other gold, I have no remedy for my gold, but have lost it. WARD V. ATEE. King's Bench. 1615. [Beparted Cro. Jac. 366.] Trespass of assault and battery, et quod cumulum pecunice, con- taining five marks, cepit, &c. The case was. The plaintiff and defendant being at play, the plain- tiff thrust his money into the defendant's heap and mixed it, and the EYDEE V. HATHAWAY. 99 defendant kept it all ; whereupon (they striving for the money) plaintiff brought this action. The whole court were of opinion, in regard the plaintiff's own money cannot be known, and this his intermeddling is his own act, and his own wrong, that by the law he shall lose all ; for, if it were otherwise, a man might then be made to be a trespasser against his will, by the taking of his own goods ; therefore, to avoid that inconvenience, the law will justify the defendant's detaining of all : and so it is of an heap of corn voluntarily intermingled with another man's. Whereupon the rule of the court was, quod querens nihil capiat per billam. RYDEE V. HATHAWAY. SnPREME Judicial Court of Massachusetts. 1838. {Reported 21 Pick. 298.] Morton, J. delivered the opinion of the court.^ This is trespass de bonis asporiatis, in which the plaintiff claims to recover for twenty- three cords of wood. It appeared in evidence that the defendant took a certain quantity of wood, but he justified the taking, on the ground that the plaintiff had cut and carried the wood from his land, and so that the wood was his, and he had a lawful right to take it. The wood in controversy was cut by the plaintiff and removed by him to a landing-place by the shore of the swamp, the soil of which was owned bj' the defendant. From this place the defendant carried it away. If the wood was really cut upon the defendant's land, the cutting and removing it by a wrong-doer would not divest him of his property in the wood, and he might law- fuUj' remove it from the place where the plaintiff had put it. The principal question in the case relates to the title of the land on which the wood grew. Upon a careful revision, we are well satisfied, that in reference to the title, the instructions were correct, and the finding of the jury war- ranted by the evidence. But in the next branch of the case we have found much greater difficulties. It appeared that a part of the wood taken by the defendant had been cut and carried to the landing-place by the plaintiff from land indisputably his own. For this part he contended that he had a light to recover, however the title to the other lot might be decided. In re- lation to this part of the case the jury were instructed, that if " a part of the plaintiff's own wood was so mixed with the defendant's wood in I The opinion states the facts. That part of the opinion relating to the question of title is omitted. 100 EYDER V. HATHAWAY. the same pile, either that the defendant did not know it or could not by any reasonable examination distinguish it, the taking of such part was not a trespass for which this action would lie." Now if, under any circumstances, the taking of wood thus mixed might be a tres- pass, this general instruction would need some qualification, and with- out it would be incorrect, and might mislead the jury. And although, in all other respects, the instructions are right, and this may need but a slight modification, yet even that, under our practice, must lead to a new trial. Few subjects in the law are less familiar, or more obscure, than that which relates to the confusion of property. If difierent parcels of chattels, not capable of being identified, owned by different persons, get mixed, how are they to be severed? What are the relative rights of the different owners? Take, for example, grain or liquor. Can each one of the former owners take from the common mass his pro- portion, or do they become tenants in common of the whole ? If one takes the whole, what shall be the remedy? "Will trespass lie? If they become tenants in common, clearly not. There is some conflict on this subject between the common law and the civil law. If the intermixture takes place by accident, or without the fault of the parties, it would be very unreasonable to deprive either party of his property, or materially to affect his right to it. And yet oftentimes there must be great suflfering, as by the confusion of property of different kinds and quaUties, as of different kinds of grain or liquors, the intermixture of which would greatly impau-, if not entirely destroy, the value of the whole. But it will not be useful further to consider the intermix- ture of property by accident, as it will not have much application to the case under consideration. The cases of intentional intermixture present questions of greater perplexity. If the owners of goods incapable of being identified con- sent to intermix them, their consent makes them tenants in common. But if the property be wilfully and unlawfully intermingled, it clearly cannot constitute a tenancy in common, because a person cannot be made a tenant in common or copartner without his consent. The act of God or of the law may create such a confusion of the propertj' of different owners, as necessarily to constitute a community of property between them. But no one person by his own act can compel another to become his cotenant. By the rules of the civil law, if the intermixture was made wilfully and not by mutual consent, he who made it acquired the whole, and the only remedy for the other party was a satisfaction in damages for the property lost. Vinn. ad Inst. lib. 2, tit. 1, § 28. This rule seems to be very imperfect, as it would enable one person to acquire the property of another against his will, merely rendeiing himself liable to pay the value of it. But it undoubtedly went upon the ground, that the inter- mixture was a conversion, and, in this respect, is analogous to many cases of trover and trespass. But our law adopts an entirely opposite EYDEE V. HATHA"WAT. 101 rule. That verj- learned commentator, Chancellor Kent, in 2 Kent's Comm. 297, says " the common law, with more policy and justice, to guard against fraud, gave the entire property, without any account, to him whose property was originally invaded and its distinct character destroyed. If A will wilfully intermix his corn or hay with that of B, so that it becomes impossible to distinguish what belonged to A from what belonged to B, the whole belongs to B." Hart v. Ten Eyck, 2 Johns. Ch. R. 62. But this rule only applies to wrongful or fraudulent intermixtures. There may be an intentional intermingling, and yet no wrong intended ; as where a man mixes two parcels together, supposing both to be his own, or that he was about to mingle his with his neighbor's, by agree- ment, and mistakes the parcel. In such cases, which may be deemed accidental intermixtures, it would be unreasonable and unjust that he should lose his own, or be obliged to take his neighbor's. If thej- were of equal value, as corn, or wood, of the same kind, the rule of justice would be obvious. Let each one take his own given quantity. But if they were of unequal value the I'ule would be more difficult. And if the intermixture was such as to destroy the propert}-, the whole loss should fall on him whose carelessness or folly or misfortune caused the destruction of the whole. This doctrine is recognized and discussed by Lord Eldon, in JJupton v. White, 15 Ves. 432. See also Panton v. JPanton, cited in 15 Vesey, 442 ; Story on Bailments, § 40 ; Ayliffe's Pand. lib. 3, tit. 3, p. 291 ; Ersk. Inst. bk. 2, tit. 1, § 17; 2 Dane's Abr. 119. The intentional and innocent intermixture of property of substantially the same quality and value, does not change the ownership. And no one has a right to take the whole, but in so doing commits a trespass on the other owner. He should notify him to make a division, or take his own proportion at his peril, taking care to leave to the other owner as much as belonged to him. It must already have been perceived that these principles are not perfectly consistent with the unqualified rule laid down for the government of the jury. According to the above doctrine, if the plaintiff actually supposed that the land from which the wood was taken was his own, and that all the wood was his, then the mingling it together should not divest him of that which honestly belonged to him. But if he knew that the land was not his, or if he doubted whether it was his or not, and mixed the wood with an intent to mislead or deceive the defendant, and to pre- vent him from taking his own without danger of taking the plaintiff's, then he has by his own fraudulent act lost his propertj' and can have no remedy. But if, as above stated, the plaintiff mingled the wood from the different lots supposing all of it to be his own, and if the de- fendant, knowing that some part of the wood came from the plaintiff's land, took the whole, he was a trespasser and is responsible in this action for the value of the plaintiff's wood thus taken by him. But if the defendant took the wood without any knowledge that any of it be- 102 HESSELTINE V. STOCKWELL. loDged to the plaintiff, then he is not liable in an action of trespass, though he may be in assumpsit if he has sold the wood, or if not, in trover, after a demand and refusal. Bond v. Ward, 7 Mass. R. 127. The verdict must therefore be set aside and a new trial granted. But as the question of title has been fully and fairly tried and set- tied, there can be no reason for retrying that, and the new trial must be confined entirely to the question of damages. Coffin and Ezra Bassett, for the plaintiff. Warren and Miot, for the defendant. HESSELTINE v. STOCKWELL. Supreme Coxjkt op Maine. 1849. [Reported 30 Me. 237.] Trover, for a quantity of pine mill logs. At the trial before Wells, J., the plaintiff introduced testimony tending to prove, that in the winter of 1844-5, one Leander Preble, cut on his own land about 600,000 feet of pine lumber, and also cut on the land of the plaintiff, wrongfully and wilfully, about 100,000 feet of lumber of a similar quality, all of which lumber was marked with the same mark, and indiscriminately hauled and landed on the same land- ing place. That in the spring of 1845, said lumber was run down the stream and came into the possession of Franklin Adams & Co., and a part of it was taken to market, and the other part remained in the stream, and was subsequently sold by them to the defendant, who in the spring of 1846, ran to market all the residue of said lumber, except- ing that in controversy, which consisted of about 100,000 feet that had remained behind, and in November, 1846, was seized bj' the plaintiff. Soon afterwards the defendant took this lumber out of the plaintiff's possession, for which taking this action is brought. There was evidence introduced by the defendant that Preble had cut on the plaintiff's land only about 7,000 feet, for which he had given his note. And there was much evidence from both parties as to the cutting. The Court instructed the jury that the plaintiff must prove that the logs for which he claimed damages in this action, had been cut on his land, and had been taken by the defendant ; and that the plaintiff was entitled to recover for any logs cut by said Preble on the plaintiff's land, and which were taken by the defendant, unless said Preble had paid the plaintiff therefor ; and that it did not appear that any question of confusion of property arose in the action. A verdict was returned for the defendant. HESSELTINE V. STOCKWELL. 103 I ^ent & Cutting, for plaintiff. A. W. Paine, for defendant. Sheplet, C. J. This was an action of trover brought to recover the vahie of certain pine logs. The logs appear to have composed a part of a larger lot estimated to contain more than 600,000 feet, which were cut and hauled by Leander Preble. The case states that there was testimony tending to prove that Preble cut on his own land about 600,000 feet of pine lumber, and also cut on the land of the plaintiff about 100,000 feet of pine lumber of a similar quality, all of which logs were marked with the same mark and hauled and landed on the same landing place. With other instructions the jury were instructed, "that it did not appear that any question of confusion of property arose in the action." What will constitute a confusion of goods has been the subject of much discussion, and it has become a question of much interest to the owners of lands upon which there are timber trees, as weU as to those persons interested in the lumbering business, whether the doctrine can be applicable to the intermixture of logs. When there has been such an intermixture of goods owned by differ- ent persons, that the property of each can no longer be distinguished, what is denominated a confusion of goods has taken place. And this may take place with respect to mill logs and other lumber. But it can do so only upon proof that the property of each can no longer be dis- tinguished. That the doctrine might be applicable to mill logs is admitted in the case of Loomis v. Green, 7 Greenl. 393. The case of Wingate v. Smith, 20 Maine, 287, has been alluded to as exhibiting a different doctrine ; but the case does not authorize such a conclusion. The instructions were, " that merely taking the mill logs and fraudu- lently mixing them with the defendant's logs would not constitute con- fusion of goods." These instructions were, and clearly must have been approved ; for an additional element was required that the mixture should have been of such a character that the property of each could no longer be distinguished. The opinion merely refers with approba- tion to the case ot Ryder v. Hathaway, 21 Pick. 298, and says, "the principles there stated would authorize the instructions which were given on that point in this case." The common law in opposition to the civil law assigns the whole property without liability to account for any part of it to the innocent party when there has been a confusion of goods, except in certain cases or conditions of property. Chancellor Kent correctly' obsen^es that the rule is carried no further than necessity requires. 2 Kent's Com. 365. There is therefore no forfeiture of the goods of one who voluntarily and without fraud makes such an admixture. As when, for example, he supposes all the goods to be his own, or when he does it by mis- take. 104 HESSELTINE V. STOCKWBLL. And there is no forfeiture in case of a fraudulent intermixture wlien the goods intermixed are of equal value. This has not been sufficiently noticed, and j'et it is a just rule and is fully sustained by authoritj-. Lord Eldon, in the case of Impton v. TFAite, 15 Ves. 442, states the law of the old decided cases to be, "if one man mixes his corn or flour ■with that of another and they were of equal value, the latter must have the given quantity ; but if articles of a different value are mixed, produ- cing a third value, the aggregate of the whole, and through the fault of the person mixing them, the other partj' cannot tell what was the origi- nal value of his property, he must have the whole." This doctrine is stated with approbation by Kent. 2 Kent's Com. 365. It is again stated in the case ot Myder v. Hathaway. The opinion says, "if they were of equal value, as corn or wood of the same kind, the rule of justice would be obvious. Let each one take his own given quantity. But, if they were of unequal value, the rule would be more difficult." In the case of WillardY. Mice, 11 Met. 493, the question, whether palm-leaf hats, which were intermixed, were of equal value, does not appear to have been, although it would seem that it might have been, made. The case is not therefore opposed to the doctrine here stated. The doctrine is noticed in the cases of Hart v. Ten Eyck, 2 Johns. Ch. 62 ; Ringgold v. Ringgold, 1 Har. & Gill, 11 ; Brackenridge v. Holland, 2 Blackf. 377. If no logs were cut upon land owned by the plaintiff, no question could have arisen of confusion of goods. The jury were required by the instructions to find onlj-, that none of those taken by the defendant were cut on the plaintiff's land. They were not required to find that no logs, composing the whole lot of six or seven hundred thousand feet, were cut on the plaintiff's land. If Preble wrongfully cut any logs on land owned by the plaintiff, and mixed them with logs cut on his own land, so that they could not be distinguished, a question respecting confusion of goods might properly have arisen. The admixture might have been of such a character that the whole lot of logs, including those in the possession of the defend- ant, might have become the property of the plaintiff. Or it might have been of such a character, the logs being of equal value, that the plaintiff would have been entitled to recover from any one in possession of those logs or of a part of them, such proportion of them as the logs cut upon his land bore to the whole number. While the facts reported might not necessarily prove a confusion of goods, if part of the whole lot of logs were cut upon land owned by the plaintiff, they might have been sufficient to raise that question, and to present it for the consideration of the jury. The instructions therefore, when considered together, requiring the plaintiff to satisfy the jury that some of that particular portion of the whole lot of logs, which the defendant had in his possession, were cut upon land owned by the plaintiff, and that no question of confusion of property appeared to arise, were too restrictive. They maj- have deprived the plaintiff of the right to recover upon proof that some of BEYANT V. -WARE. 105 the logs composing the whole lot had been cut upon his land and so mixed with logs cut on land owned by Preble that they could not be distinguished. Moceptions sustained, verdict set aside, and new trial granted} BRYANT V. WARE. Supreme Coukt op Maine. 1849. [Reported 30 Me. 295.] Trespass de bonis asportatis, for a quantity of cedar railroad sleepers, juniper knees, shingles, and juniper timber. At the trial, before Wells, J., it appeared, that the lumber was cut in the winter of 1840-41, by one Samuel Potter, a part on the land of defendant, and a part on land of Timothy Boutelle, the two tracts being contiguous in the town of Alton. The timber was hauled by Potter into a brook, for the purpose of being floated to market, and in the fol- lowing spring, it was run down to the Penobscot river above the town of Orono, where it was rafted into eleven rafts, six of which were run to Bangor immediately afterwards, and delivered by Potter to plaintiff, to be held by him to pay what Potter owed him, and the balance to be paid to Potter, the plaintiff having supplied Potter while cutting the lumber. The other rafts were taken by defendant near Oldtown as his pi'operty, and soon afterwards he came to Bangor, and took the remain- ing six rafts out of the possession of plaintiff. Potter was a trespasser on both tracts, and there were no marks upon an3- of the timber. With other rulings, the court instructed the jurj', that if a part of the lumber was cut on Ware's and a part on Boutelle's land, and was all mixed together in such a manner, by those who cut it, that the part cut on Ware's land could not be distinguished from what was cut on Bou- telle's land, then Ware had a right to take the whole, and this action of trespass could not be maintained ; also, that if the rafts taken by the defendant near Oldtown contained more than all the timber cut from his land, it would make no difference where he took it (he intending to take all the timber cut as aforesaid), if they found that the timber was intermingled, and could not be distinguished, as before stated. The jury returned a verdict for defendant, and the plaintiff excepted. Kelley and McCrillis, for plaintiff. 1. The rule of law, that where one mixes his ow,n with another's goods so that it is impossible to distinguish and identify what belonged to each, the entire property passes to him, whose original dominion was 1 See Mayer v. Wilkins, 37 Fla. 244, 253 ; Claflin v. Continental Works, 85 Ga. 27 ; Eawhins v. Spokane, ^c. Co., 33 Pac. 40 (Idaho) ; First Nat. Bank r. Scott, 36 Neb. 607 ; Jewett v. Dringer, 30 N. J. Eq. 291. 106 BKYANT V. ■WARE. invaded, applies only to cases of fraudulent intermixture of goods. 21 Pick. 305. Fraud is not to be presumed, and whether there was any fraud, was a question which should have been submitted to the jury. 2. If there was fraud in Potter, who cut the lumber and intermingled it, the plaintiff being an innocent purchaser, is not to be affected by it. 14 Mass. 137 ; 10 Johns. 185 ; 20 Pick. 247: 6 Shepl. 391 ; 1 Peters, 46. 3. Where one innocently mixes his own with another's goods, each retains his ownership in his proportion, and neither partj'^ has a right to retain or take more than his proportion, and if one takes more than his proportion, he is a trespasser. 11 N. H. 558 ; 21 Pick. 306. 4. The articles, for which this action is brought, are not that kind of property, to which the law of confusion of goods applies. Inst. Lib. 2, title 1, § 27 ; Story on Bailments, § 40; 15 Vesey, 432 ; 20 Maine, 287. 5. The instruction should have been qualified, that if defendant knew he was taking lumber, which did not belong to him, he was responsible in trespass. 6. If there could be no division of the identical goods, there should be a division in value. Defendant having taken five rafts at Oldtown, and that being more than his share, was a trespasser in coming to Bangor and taking plaintiff's share. ^ent and A. W. Paine, for defendant. Howard, J. This was an action of trespass de bonis asportatis, for a quantity of cedar railroad sleepers, juniper knees, shingles, and juni- per timber. There was evidence, as stated in the exceptions, tending to show that the lumber was cut in the winter of 1840-41, by Samuel Potter, a trespasser, on two contiguous tracts of land, and hauled into a brook, to be floated down to a market. That one of the tracts of land was owned by the defendant, and that the other, called the col- lege land, was owned by Timothy Boutelle. That in the spring follow- ing, the timber was run down to the Penobscot river and rafted into eleven rafts, six of which were run to Bangor, immediately after by Potter, and " delivered to the plaintiff to pay him what Potter owed him, and the balance to be paid to Potter (the plaintiff having supplied Potter while cutting the lumber"). "That Potter was a trespasser on both lots, on which he cut the timber ; " and that " there was no other intermingling of the timber cut from both tracts, except that the logs were hauled into the same brook, at the same landing, and afterwards rafted into the same rafts, there being no marks on any of the timber." The defendant took the five rafts at Oldtown, as his property, and soon after took the remaining six rafts out of the possession of the plaintiff, at Bangor. The instructions to the jury, to which exceptions were taken and urged in the argument, were : — 1. That, if a part of the lumber was cut on the defendant's land, and a part on the college land, and the whole was mixed together in such a manner, by those who cut it, that it could not be distinguished, the de- fendant had a right to take the whole, and that this action of trespass could not be maintained. BEYANT V. WAKE. 107 2. That if the defendant did take the five rafts at Oldtown, and if they amounted to more than all of the timber cut from his land, it would make no difference where he took it, if he intended to seize all of the timber cut as before mentioned, if they found that it was intermingled, and could not be distinguished as before stated. If one take the goods of another, as a trespasser, he does not thereby acquire a title to them, and cannot invest another with a title ; but the original owner may follow his property and reclaim it from the tres- passer, or any other person claiming through him, so long as the iden- tity can be established. If the timber taken by Potter, as a trespasser, from the land of the defendant, was so mingled with the other timber taken by him from the college land, that it could not be distinguished, it would produce what is denominated a confusion of goods. Loomis v. Green, 7 Greenl. 393 ; Wingate v. Smith, 20 Maine, 287 ; Hazeltine v. Stockwell, 30 Maine, 237 ; Myder v. Hathaway, 21 Pick. 298 ; Willards. Rice, 11 Mete. 493 ; Betts v. Zee, 5 Johns. 348 ; Curtis v. Groat, 6 Johns. 168 ; JBabcock v. Gill, 10 Johns. 287 ; Brown v. Sax, 7 Cowen, 95 ; Treat v. Barber, 7 Conn. 280 ; Barron v. CobUigh, 11 N. H. 558. Where the confusion or commixture of goods is made by consent of the owners, or by accident, and without fault, so that they cannot be distinguished, but the identity remains, each is entitled to his proportion. This was also the doctrine of the civil law. (Just. Inst. Lib. 2, tit. 1, §§ 27, 28.) But if such intermixture be wilfully or negligently effected by one, without the knowledge or approbation of the other owner, the latter would be entitled by the common law to the whole property, without making satisfaction to the former, for his loss. The civil law, however, required the satisfaction to be made. Browne's Civil Law, 243 ; Ward v. Ayre, Cro. Jac. 366 ; 2 Black. Com. 405 ; 2 Kent Com. 363, 364, ■where the civil law is stated differently by the learned Chancellor, p. 364 ; Story's Com. on Bailments, § 40 ; Lupton v. White, 15 Vesey., 440 ; Hart v. Ten Eyck, 2 Johns. Chan. 62. If the defendant found his timber, which had been wrongfully taken from his land, mingled with other timber, in the manner stated in the evidence, so that it could not be distinguished, he had clearly a right to take possession of the whole, without committing an act of trespass, even if he may be held to account to the true owner for a portion of it. He had, at least, a common interest in the property, and in taking pos- session he asserted only a legal right. Inst. Lib. 2, tit. 1, § 28 ; Story's Com. on Bailments, § 40. In any view of the case, upon the facts presented, the instructions were correct. Exceptions overruled} 1 See Nanis v. VniUd States, 44 Fed. 735. 108 JENKINS V. STEANKA. JENKINS V. STEANKA. Supreme Court of Wiscoksin. 1865. [Reported 19 Wis. 126.] Error to the Circuit Court for "Winnebago County. The action below was by Jenkins and others against Steanka, to recover possession of certain lumber, or the value thereof (alleged to be $400), with damages for the detention. The plaintiffs obtained possession under the statute. Steanka was master of a sloop in which the lumber was found when seized by the sheriff; and claimed bj' his answer that the title to the lumber was in one Wright (for whom he was carrying the same on said sloop) , subject to a lien for freight in favor of the owner of said sloop, and that said defendant, at the time of such seizure, was entitled to the possession as agent of said owner. The jurj- found that defendant had the right of possession at the commencement of the action ; that Wright owned the lumber ; and that the value was $360 ; and nominal damages. Judgment accordingly ; and plaintiffs sued out their writ of error. ^arl P. Finch, for plaintiffs in error. H. a. Jackson, for defendant in error,. By the Court, Downer, J. This is an action to recover forty thou- sand feet of pine lumber, alleged in the complaint to be wrongfully detained by the defendant, and of the value of $400. The value is not denied by the answer. At the trial, the plaintiffs offered to prove the value less than $400 ; but the Circuit Court refused to permit the evidence to be given, holding that the pleadings fixed and were con- clusive as to the amount of the value. In this the court below erred. In actions of trover, trespass or replevin, before the Code, it was not necessary for the defendant to deny the amount of the value or the allegation of damages, and in this respect the Code has not altered the practice. They must be proved even though the defendant puts in no answer. Conness v. Main, 2 E. D. Smith, 314 ; McKenziey. Farrell, 4 Bosworth, 202. Questions were put to different witnesses by the plaintiffs during tlie progress of the trial, as to what the kind or quality of the lumber in dispute was. The court below refused to permit these questions to be answered. It seems to us the answers should have been received. They were competent as bearing on the question of the value of the lumber ; also for another purpose. Testimony was given tending to prove that some part of the lumber in dispute was manufactured by one Wright, in his mill, at Fremont, out of logs belonging to the plaintiffs and cut on streams above Fremont, and that there was a great differ- ence in the quality of lumber sawed out of logs cut at or near Fremont and that cut out of the plaintiffs' logs, the latter being much superior SMITH V. MORRILL. 109 in quality to tlie former. The defendants' witnesses, or some of them, testified that this lumber was made out of logs cut at Fremont. After this testimony was in, the plaintiflFs renewed their iuquirj^ as to the quality of the lumber in dispute, and the court again ruled the evidence inadmissible. It seems to us that it was clearlj- admissible as tending to prove whether the lumber in dispute was manufactured out of the plaintiffs' or Wright's logs. The Circuit Court also erred in instructing the jurj' that " if they found for the plaintiffs, thej" could only recover the amount of lumber which thej' have proved to have been wrongfully taken bj' Wright, although it may have been commingled with the lumber of Wright wrongfullj-." The law, we think, is that if Wright wilfully' or indis- criminately intermixed the lumber sawed from the logs of the plaintiffs with his own lumber, so that it could not be distinguished, and the lumber so mixed was of different qualities or value, then the plaintiffs would be entitled to hold the whole. WillardY. Hice, 11 Met. 493 ; 2 Kent's Com. (3d ed.), 364 ; Byder v. Hathaway, 21 Pick. 298. We do not deem it necessar}- to notice other rulings assigned for error of the court below excluding testimonj', as the same questions may not arise upon a new trial. Judgment of the court below reversed, and a new trial ordered. SMITH V. MORRILL. Supreme Coukt of Maine. 1869. [Beported 56 Me. 566.] Tkover, for a quantity of logs alleged to have been converted by the defendants in 1860. The writ is dated November 6, 1863. There was evidence tending to show that, in the winter of 1858-9, the plaintiff lumbered on his township, called Holeb, adjoining which was the township called Forsyth, owned by the defendants ; that the line between the townships was well marked and known to the plaintiff and his servants ; that, during the operation, the plaintiff's servants, having cut all his timber accessible without removal of camps, breaking new roads, &c., intentionally and, without the knowledge or consent of the defendants, went upon the township of Forsj-th, finished their operation thereon, hauled the logs to the same landing, and marked them with the same mark ; that subsequently, after the plaintiff had learned all the facts of the trespass, together with the quantity of logs cut on Forsyth, from the return of his scaler, he caused the whole quantity to be put into the river, driven to Gardiner, caught, boomed, and rafted for sale, thus intermingling the logs in such a manner as to render it impracticable to separate those cut on Forsyth from those cut on Holeb ; that the defendants, having no means of determining 110 SMITH V. MOKEILL. the quantitj' of logs cut on their land, seized a quantity which they deemed suflBcient to cover their loss ; that the plaintiff never, until the time of trial, informed the defendants of the quantity cut on Forsyth, although he had the means of doing so as early as April, 1859 ; that the defendants requested such information of the plaintiff, but did not receive it. The court were to render such judgment as the legal rights of the parties required, upon the legal evidence reported. S. Heath, for the plaintiff. A. Libbey, for the defendants. Appleton, C. J. The plaintiff and defendants were owners of ad- jacent townships. The plaintiff trespassed upon the defendant's land, cutting thereon a considerable quantity of logs which were marked similarly to those cut on his own land, and were run with them to Gardiner. The defendants having ascertained that the plaintiff had trespassed upon their land, seized a portion of the logs thus commingled, as cut on their premises, and more, as the plaintiff alleges, than were so cut. This action is brought to recover such excess. As the plaintiff was a trespasser, the defendants had a legal right to seize the logs cut on their land wherever they could find them. Their title thereto was as perfect as if cut by themselves. It was the fault of the plaintiff that they were so mingled by him or his agents with his logs so that they could not be distinguished from them. The plaintiff must suffer from the consequences of this confusion. By the common law, where an intermixture of goods is fraudulently made without the knowledge of the owner, and they cannot be separ- ated and identified, the latter is entitled to the whole property without making satisfaction to the former for his loss. In Bryant v. Ware, 30 Maine, 295, where lumber was cut upon two tracts of adjoining owners by a trespasser, and the whole was so intermixed by him, or persons claiming under him, that the part belonging to each owner could not be distinguished, and the owner of one tract seized and took possession of the whole, — it was held, that one claiming under the wrongdoer could not maintain an action of trespass for such taking. But the defendants seized only a portion of the logs cut by the plain- tiff. Waiving, therefore, their right to all, if they had such right in the present ease, the question arises whether they are liable as wrong- doers if they seize more logs than, as it is ultimately shown, were cut on their land. It has been repeatedly held that an officer has a right to attach the goods of another, negligently or fraudulently intermixed with those of the debtor, and hold them until they were identified by the owner and re-delivery demanded ; that he could not be treated as a trespasser for doing what he had a right to do ; and that, if after identification and demand for re-delivery he refused to give up the goods, he would be SMITH V. MOEEILL. Ill liable for their value in trover, but that trespass could not be main- tained for the original taking. Bond v. Ward, 7 Mass. 127 ; Shumway V. Butter, 8 Pick. 443 ; WiUardv. Bice, 11 Met. 493 ; Lewis v. Whitte- more, 5 N. H. 366 ; Taylor v. Jones, 42 N. H. 36. So here the de- fendants had a right to seize their own logs. It was by the wrongdoing of the plaintiff that they were cut, marked, and intermingled with his own. The plaintiff knew the number and kind of logs cut on the defendants' land. The defendants were ignorant of all this, and were never informed thereof by the plaintiff, as they testif}', till the time of the trial. They seized what they regarded as the number of logs cut on their land. If they seized logs not so cut, the plaintiff should have notified them of such fact and pointed out the specific logs he claimed, if it was in his power so to do. If they took more than they had a right to take, he should have advised them of the exact amount of his own trespass. He cannot claim that they are wrongdoers when they rightfully seized their own logs, wrongfully commingled by him with those cut on his land. This they clearlj' had a right to do. Bryant v. Ware, 30 Maine, 295. The party wrongfully intermingling his goods with another's cannot reclaim them without first pointing them out. Seavy v. Dearborn, 19 N. H. 351 ; Gilman v. Sanborn, 36 N. H. 311. So XiOO if the defendants, acting in good faith, took more logs than the plaintiff had cut on their land, having a right to take all logs cut by trespassers, they would not be liable as wrongdoers until the plaintiff had pointed out the property belonging to him, and demanded it of them, which the defendants say was never done. It must be remem- bered that, if the plaintiff suffers, it is in consequence of his own wrongful acts. The defendants were acting for the protection of then- acknowledged rights. Judgment for defendants. Kent, Walton, Danfoeth and Taplet, JJ., concurred. Note. — The acquisition by a transferee of a chattel or obligation of a right greater than that of the transfen-er is dealt with later in this course under the head of Priority, and also in a separate course on BiUs and Notes. 112 PICKERING V. MOORE. PICKERING V. MOORE. Supreme Codet of New Hampshire. 1893. [RepoHed 67 N. H. 533.] Trover, for manure. Facts found by the court. March 31, 1883, the defendant leased his farm for the term of three years to the plain- tiff, who covenanted to carry on the place in a " husbandlike man- ner," and to consume and convert into manure, to be used or left upon the premises, all hay and fodder raised thereon. The plaintiff occu- pied the farm and performed all his covenants contained in the lease, without any new or further contract, until May 30, 1892. During the last j-ear of his occupancy he fed out upon the farm a large quantity of fodder not produced on the place. He put twenty-five cords of the manure made from this fodder, and manure of the same quality and value made from fodder raised on the place, together, in a heap, where they were so intermixed that they could not be distinguished. The defendant prevented him from taking away the twenty-five cords. Leach & Stevens, for the plaintiff. Alhin <& Martin, for the defendant. Carpenter, J. The plaintiff held the farm after the expiration of three years, as tenant from year to year, upon the terms expressed in the lease. JRussell v. Fabyan, 34 N. H. 218, 223 ; Conway v. StarkweatJier, 1 Denio, 113. Manure made upon a farm by the con- sumption of its products in the ordinary course of husbandry is a part of the realty. It cannot be sold or carried away by a tenant without the landlord's consent. Sawyer v. Twiss, 26 N. H. 345, 349 ; Perry V. Carr, 44 N. H. 118, 120 ; Sill v. Be Eochemont, 48 N. H. 87, 88. The doctrine ' ' was established for the benefit of agriculture. It found its origin in the fact that it is essential to the successful cultivation of a farm that the manure produced from the droppings of cattle and swine fed upon the products of the farm, and composted with earth and vegetable matter taken from the land, should be used to supply the drain made upon the soil in the production of crops, which other- wise would become impoverished and bai-ren ; and in the fact that the manure so produced is generally regarded by farmers in this country as a part of the realty, and has been so treated by landlords and ten- ants from time immemorial." Haslem v. Lockwood, 37 Conn. 500, 505. Whether a tenant, " where there is no positive agreement dispensing with the engagement to cultivate his farm in a husbandlike manner, is bound to spend the hay and other like produce upon it as the means of preserving and continuing its capacity " {Perry v. Carr and Sill v. De Rochemont, eupra), in other words, whether the express or implied obligation to cultivate the farm in " a husbandlike manner" binds him PICKEEING V. MOOKE. 113 ia,s matter of law to convert into manure all the fodder grown on the premises, is a different and possibly an open question. Wing v. Gray, 36 Vt. 261, 266, 267 ; Zewis v. Lyman, 22 Pick. 437, 444, 445; Midr dlehrook v. Corwin, 15 Wend. 169, and cases cited ; £rown v. Crump, 1 Marsh C. P. 667; Legh v. Hewitt, 4 East, 154, 159; Moulton v. Bobinson, 27 N. H. 650, 561; Cool. Torts, 334, 343, 344. However that may be, no rule of good husbandry requires a tenant to buy haj"- or other fodder for consumption ou the farm. If, in addition to the stock maintainable from its products, he keeps cattle for hire and feeds them upon fodder procured by purchase or raised by him on other lands, the landlord has no more legal or equitable interest in the ma- nure so produced than he has in the fodder before it is consumed. It is not made in the ordinary course of husbandry. It is produced " in a manner substantially like making it in a livery^ stable." Hill v. De HocJiemont, 48 N. H. 87, 90 ; Corey v. Bishop, 48 N. H. 146, 148. It is immaterial whether the additional stock is kept for hire, or is the tenant's property. Needham v. Allison, 24 N. H. 355. The plaintiff did not lose his property in the manure by intermixing it with the defendant's manure of the same quality and value without his consent. It is not claimed that the plaintiff mixed the manure with any fraudulent or wrongful intent. " The intentional and innocent intermixture of property of substantially the same quality and value does not change the ownership. And no one has a right to take the whole, but in so doing commits a trespass on the other owner. He should notify him to make a division, or take his own proportion at his peril, taking care to leave to the other owner as much as belonged to him." Byder v. Hathaway, 21 Pick. 298, 306; Gilman v. Hill, 36 N. H. 311, 323; Bobinson v. Holt, 39 N. H. 657, 563 ; Moore\. Bow- man, 47 N. H. 494, 501, 502; Cheshire Railroad y. Foster, 51 N. H. 490, 493. " Even if the commingling were malicious or fraudulent, a rule of law which would take from the wrongdoer the whole, when to restore to the other his proportion would do him full justice, would be a rule not in harmony with the general rules of civil remedy, not only because it would award to one party a redress bej'ond his loss, but because it would compel the other party to pay not damages, but a penalty." Cool. Torts, 53, 64. Whether the parties were tenants in common of the manure is a question that need not be determined. Gardner v. Dutch, 9 Mass. 427, 430, 431; Byder v. Hathaway, 21 Pick. 298, 305 ; Chapman v. Shepard, 39 Conn. 413, 425 ; Kimberly v. Patchin, 19 N. Y. 330, 341. Assuming that they were, the action may be maintained. A tenant in common has the same right to the use and enjo3'ment of the common property that he has to his sole property, except in so far as it is lim- ited by the equal right of his co-tenants. Where two have each an equal title to an indivisible chattel, " as of a horse an oxe or a cowe," neither, without actual and exclusive possession of the chattel, can en- joy his moiety. Simultaneous enjoyment by each of his equal right is 8 114 PICKERING V. MOOEE. impossible. Hence, neither can lawfully take it from the possession of the other. The one excluded from possession has no legal remedy ex- cept to take it " when he can see his time." Lit., s. 323 ; Southworth V. Smith, 27 Conn. 355, 359. A tenant in common of personal as well as real property has a right to partition if partition is possible, and if not, to a regulation of its use equivalent to partition or to a sale. Co. Lit. 164 b, 165 a ; Stoughton V. Leigh, 1 Taunt. 402, 411, 412; Morrill v. Morrill, 5 N. H. 134, 135; Growell v. Woodbury, 52 N. H. 613. On partition he is entitled to no particular part of the property, but only to his due proportion in value and quality of the whole. "When it consists of chattels differing in quality and value, an appraisal of the value and a consideration of the qualities of the several chattels are essential to an assignment to each of his just share. In this case, as in that of a single indivisible chattel, if the parties cannot agree upon the use, sale, or division, judicial inter- vention is necessary. Until an adjudication of their rights, neither can assert a title in severalty to any portion of the property. "When the common property is divisible by weight, measure, or number into portions identical in quality and value, as corn and various other arti- cles, a different case is presented. There is no question of legal or equitable right. There is and can be no dispute that a court of law or equity can settle. Counting, weighing, and measuring are not judicial, but ministerial functions. Equity could do no more than decree that each might take so many pounds, bushels, or j-ards, or so many of the articles in number, and enforce its decree by process, in other words, enforce the conceded right. One may in general do without a decree what equity would decree that he might do. Neither law nor equity allows one in the exercise of his own rights to do an unnecessarj' and avoidable injury to another. One is entitled to the possession of the whole in those cases onlj' where it is necessary to his enjoyment of his moiety. Here it is not necessary. There is no more difHculty in separating one portion from another, than there is in selecting A.'s marked sheep from B.'s flock. Either may make the division. The law is not so unreasonable as to compel a resort to the courts in order to obtain a partition which neither may make without expense and with- out danger of injustice to his co-tenant. Except in Daniels v. Brown, 34 N. H. 454, it has never been held, so far as observed, that a tenant in common is liable to his co-tenant in any form of proceeding for tak- ing from the latter's possession and consuming or destroying his just proportion only of the common property. The conveyance by a tenant in common of a part of the common land by metes and bounds may effect a partition, and will if it does no injustice to his co-tenants, — if their just share can be assigned to them out of the remaining land. Solhrook v. Bowman, 62 N. H. 313, 321. No reason is perceived why a similar doctrine should not be applied in the case of a common tenancy of chattels. If A. and B. own in common one hundred horses, and B. sells ten of them to C, why should A. be permitted to take PICKERING V. MOOEB. 115 them " when he can see his time," if he has possession of and can have his full share assigned to him from the remaining ninety? However that may be, a tenant in common of goods divisible by tale or measure ma}-, without the consent and against the will of his co-tenant, right- fullj' take and appropriate to his sole use, sell, or destroy so much of them as he pleases, not exceeding his share, and by so doing eflfect pro tanto a valid partition. To this extent Daniels v. Brown, supra, is overruled. Haley v. Colcord, 59 N. H. 7, 8 ; Gage v. Gage, 66 N. H. 282, 288; SeMon v. JSickock, 2 Cal. 166 ; Lobdell v. Stowell, 51 N. Y. 70, and cases cited; Stall v. Wilbur, 77 'N.Y. 158, 164; Cool. Torts, 455 ; 6 Am. Law Rev. 455-459, and cases cited. The defendant, by preventing the plaintiff from taking his part of the manure, exercised a dominion over it inconsistent with the plaintiff's rights. Evans v. Mason, 64 N. H. 98. Judgment for the plaintiff} 1 See Pratt v. Bryant, 20 Vt. 337. CHAPTER III. TRANSFER OF RIGHTS IN PERSONAL PROPERTY. SECTION I. SATISFACTION OF JUDGMENT. Note. — Other modes in which personal property is transferred without the consent of the person whose property is transferred are i'orfeiture, Execution, Bankruptcy, and Marriage; as to the transfer of personal property on intestacy, see note to next section. BRINSMEAD v. HARRISON. Common Pleas. 1871. [Reported L. E. 6 C P. 584, 587-590.] June 23. The judgment of the Court ^ (Willes and Montague Smith, JJ.) was delivered by Willes, J. We decided yesterday that, according to the law laid down by Lord Wenslej-dale in King v. Ilbare, 13 M. & W. 494, a judgment in an action against one of two joint tort-feasors is a bar to an action against the other for the same cause. There remains, how- ever, an entirely different question, which arises upon the new assign- ment, and which is, whether a judgment in trover, without satisfaction, changes the property in the goods so as to vest the property therein in the defendant from the time of the judgment, or of the conversion, or whether such recovery operates as a mere assessment of the value, on payment of which the propert3' in the goods vests in the defendant. It is obvious that this is a different question from that which we have already disposed of; because, if the mere recovery vests the property in the defendant, the property is equall}- changed as to all strangers. It is a question which affects the transfer of propert}' generally. We are of opinion that no such change is produced by the mere re- covery. The proceeding in such an action is not a proceeding in rem : it is, to recover prima facie the value of the goods. It may be that the goods have been returned, and the judgment given for nominal damages only. To say in such a case that the mere obtaining judgment vests the property in the defendant would be an absurdity. It is clear, 1 The question which it is here desired to present is sufficiently given in the opinion. BRINSMEAD V. HAKEISON. 117 therefore, that the judgment has no specific effect upon the goods. The only waj' the judgment in trover can have the effect of vesting the prop- ert3' in the defendant is, by treating the judgment as being (that which in truth it ordinarily is) an assessment of the value of the goods, and treating the satisfaction of the damages as payment of the price as upon a sale of the goods, according to the maxim in Jenk. 4th Cent. Case 88. Any other construction would seem to be absurd. This question whether the property is changed by the mere recovery in trover appears to have led to much difference of opinion. The au- thority mainly relied upon by Mr. Powell was the dictum of Jervis, C. J., in Auckland v. Johnson, 15 C. B. 145, 157 ; 23 L. J. (C. P.) 204, in which that verj' learned and accurate judge did lay it down, upon the authority of a case in Strange, Adams v. Brougliton, 2 Str. 1078, that the property- is changed by the mere recover}-, without any satisfaction. I would observe, however, that the case, as reported in Strange, is far from satisfactorj'. It is also reported in Andrews, p. 18, where the case is thus stated: "An action of trover was brought by the present plaintiff against one Mason, wherein he obtained judgment by default, and afterwards had final judgment ; whereupon a writ of error was brought. And another action was now brought against Broughton by the same plaintiff, and for the same goods for which the first action was brought." An application appears to have been made to hold the de- fendant in the second action to special bail ; and there was sufHcient reason why special bail should not be allowed, because the judgment against Mason had the eflfect of preventing a second action being main- tained against Broughton. The loose expressions of the Court, — that " the property of the goods is entirely altered by the judgment obtained against Mason, and the damages recovered in the first action are the price thereof; so that he hath now the same property therein as the original plaintiff had ; and this against all the world," — were quite un- necessary. The same may be said as to the dictum of Jervis, C. J., in BucMandv. Johnson, 15 C. B. 145 ; 23 L. J. (C. P.) 204. That was an action against a person who jointlj- with his son had sold goods the pro- ceeds of which the defendant had received. After the sale, the plaintiff (who claimed the goods), in ignorance that the father had received the money, brought an action against the son for money had and received and for damages for the conversion, and recovered a verdict for lOOZ. against him ; but, not succeeding in obtaining satisfaction, in conse- quence of the son's insolvency, he brought a second action against the father for the same causes. It is clear that the proceedings in the first action amounted to an election to treat the matter as a wrong, and pre- cluded the plaintiff from bringing a fresh action for money had and re- ceived. It was equally clear that the judgment in the first action was a merger of the remedy against either the father or the son ; and, when the action was brought against the father, the answer was obvious. It was wholly unnecessarj', therefore, to decide, as suggested by Jervis, C. J., that the recovery in the first action changed the property ; and 118 BKINSMEAD V. HAEEISON. what was said was properly treated by the reporter as amounting only to a " semble." On the other hand, there is a series of decisions showing that a mere recovery, without satisfaction, has not the effect of changing the prop- erty. In Jenkins, 4th Cent. Case 88, it is said: "A, in trespass against B for taking a horse, recovers damages ; by this recovery, and execution done thereon, the property of the horse is vested in B. Solutio pretii emptionis loco habetur." That doctrine is acted upon in Cooper v. Shepherd, 3 C. B. 266 ; and, though the marginal note treats the recovery as changing the propertj', — a doctrine thrown out also in the note to Barnett v. JBrandao, 6 M. & G. at p. 640, — the plea shows that the damages were satisfied; and the judgment of Tindal, C. J., shows that the property vests in the defendant only " on payment of the damages." To the same effect are the observations of Holroyd, J., in Morris v. Bohinson, 3 B. & C. 196, at p. 206. " Where in trover," he says, " the full value of the article has been recovered, it has been held that the property is changed by judgment and satisfac- tion of the damages. Unless the full amount is recovered, it would not bar even other actions in trover." To the same effect is the note in 2 Wms. Saund. 47 c c, n. (z). It may also be proper to refer to the note to the case of Holmes v. Wilson, 10 Ad. & E. at p. 511, in which the law is stated by the reporters probably at the suggestion of one of the judges. The good sense of the thing and abundant authority thus appearing, we feel bound to give judgment for the plaintiff upon the new assignment. In order, however, to act upon our judgment of yesterday and today, it must be recollected that the present defendant will not be liable ex- cept in respect of a wrong other than that which was the subject of the action against the other wrong-doer. Another point arises upon the new assignment. The plaintiff may have acquired the property in the goods after the recovery of the judg- ment in the former action. As, however, that point was not argued, we prefer resting our judgment upon the main point. The judgment therefore will be for the defendant upon the sixth plea, and for the plaintiff upon the new assignment. Judgment accordingly. ■ JPoweU, Q. C. {Joyce with him), for the defendant. Kelly, for the plaintiff.* 1 See B. c, L. B. 7 C. P. 547 j Expartt Drake, 6 Ch. D. 866. SMITH V. SMITH. 119 SMITH V. SMITH. SupREJiE Judicial Codet of New Hampshire. 1872. [Reported 51 N. E. 571.] Ladd, J.* The agreed statement of facts upon which the former opinion in this case was rendered (50 N. H. 212), showed that after this plaintiff had paid the judgment recovered against him for the original taking of the posts, &c., this defendant entered upon the plain- tiff's premises and carried them away again. The defendant now offers to prove that his taking was before that judgment was paid, though after it was rendered ; and we are called on to decide that the plaintiff cannot recover the value of the property' which he thus paid for in pay- ing that judgment, because it was taken from him by the defendant before instead of after the paj-ment. The defendant's position, in a word, is this : he had changed Ms securitj' for the conversion of his property from an unliquidated claim for damages for a tort into a judgment for its value. Without releas- ing or surrendering that judgment, he broke and entered the plaintiff's close, and took awaj' the property for which he held the judgment ; and having thus secured the property, he enforced paj'ment for its value hy collecting the judgment. He now claims that he is not liable for its value in this action, because the propertj- did not pass to the defendant until the judgment was paid, that is, after his taking. If there were no other way of meeting this position, it would doubt- less furnish a strong argument in favor of the former doctrine, that it is the judgment and not the satisfaction which passes the propertj'. Adams V. Sroughton, 2 Stra. 1078 ; and see cases collected in Auck- land y. Johnson, 15 C. B. 145. Such is not the law, however, in this State — Sk/de v. Noble, 13 N. H. 494 — and probably not now in England; Brinsmead v. Harrison, Law Kep. 6 C. P. 584; s. c. Law Rep. 7 C. P. 547 ; — and the aid of no such doctrine need be invoked. In the former opinion it was said that a satisfaction of the judgment bj' this plaintiff passed the title of the property to him to take effect by relation from the time of the conversion. That remark was not strictly called for as the case then stood ; but we have no doubt it was correct, and it fully meets the case as now presented. 2 Par. Bills and Notes, 436 ; i Hilliard on Torts, 51 ; Suchlandv. Johnson, sup.; Hepburn v. Sewell, 5 Har. & Johns. (Md.) 211. In the latter case the point was directly raised and distinctly decided by the court. The remarks of Dorsey, J., in delivering the judgment of the court, are so much in point that I quote a portion of 1 The case is sufficiently stated in the opinion. 120 MILLER V. HYDE. them. He says, — " It must be borne in mind that the plaintiff, in an action of trover, compels the defendant to become a purchaser against his will ; and from what period does he elect to consider the de- fendant as a purchaser, or as answerable to him for the value of the thing converted ? He selects the date of conversion as the epoch of the defendant's responsibility, and claims from him the value of the prop- erty at that period, with interest to the time of taking the verdict. The inchoate right of the defendant as a purchaser must therefore be considered as coeval with the period of conversion, and this right being consummated b}' the judgment and its discharge, must, on legal and equitable principles, relate back to its commencement." This view disposes of the defendant's case ; for if, upon payment of the judgment, the property in the posts, &c., passed absolutely to the plaintiff, and his title thereupon took effect by relation from the date of the conversion, he is clearly entitled to recover their value in the pres- ent suit. We do not undertake to say that there may not be cases where this doctrine would not apply. All we decide is, that it does apply in a case like the present.^ MILLER V. HYDE. Supreme Court op Massachusetts. 1894. [Reported 161 Mass. 472.] Replevin of a horse. Writ dated August 10, 1892. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts, in substance as follows. The horse in question was purchased in July, 1890, by Herbert W. Miller, a resident of Boston, through his agent, George Bryden, of Hartford, in the State of Connecticut, who thereafter kept it for him in Hartford. Miller died in September, 1890, and in the following No- vember the plaintiff, who was his widow, having been appointed admin- istratrix of his estate, demanded the horse of Bryden, who refused to deliver it to her, claiming to own a half interest therein. In March, 1891, Bryden sold and delivered the horse as his own property to Joseph C. Davenport and Ada L. Hyde, both residents of Connecticut. Ancillary administration was subsequently granted to the plaintiff in Connecticut, and in November, 1891, she brought an action in that State against Bryden, Davenport, E. A. Hyde, and one Shillinglaw, for the conversion of the horse, which was in the possession of the three 1 See Fox y. Northern Liberties, 3 W. & S. 103. Cf. also Barb v. Fish, 8 Blackf. 481 ; Love.joy v. Murray, 3 Wall. 1. " If one declares in replevin for cattle with an adhuc detinet, and defendant has judgment against him for damages, by payment thereof the property of the distress shall be vested in him." Per Holt, C. J., in More V. Watts, 12 Mod. 424, 428. MILLER V. HYDE. 121 last named defendants, and attached the horse upon mesne process. She recovered judgment against Brj'den onlj', on which execution was issued and delivered to an officer, who, after an ineffectual demand on Brj-den for its paj-ment, levied on the horse and advertised it for sale, but before he had sold it it was replevied from him by Davenport. In August, 1892, Davenport intrusted the horse to the defendant, who brought it into this Commonwealth, where it was replevied bj' the plaintiff. When this action was begun, the judgment recovered in trover against Bi-3-den, who was financially worthless, remained unsatis- fied, and the replevin suit of Davenport against the officer was still pending in Connecticut. The case was argued at the bar in December, 1893, and afterwards was submitted on the briefs to all the judges. S. A. Whitman, for the plaintiff. J! S. Morriso?i, for the defendant. Barker, J. The plaintiff maj' maintain replevin if she is the owner of the horse, and if she is not estopped from asserting her ownership against the defendant. As administratrix of her husband's estate, she was the owner when she brought trover in Connecticut against Br3den, the bailee, who had wrongfully' usurped dominion, and sold and delivered the horse to Davenport. As the horse was in Connecticut and the action of trover was in the courts of that State, the effect of the suit upon her title would be determined bj' the law of the forum. But as the law of Connecticut is not stated as an agreed fact, we must apply our own. Whether a plaintiff's title to the chattel is transferred upon the entry in his favor of judgment in trover has not been decided by this court. Assuming that in early times title to the chattel was trans- ferred to the defendant upon the entry of judgment for the plaintiff in trover, at present a different doctrine is generally applied, and it is now commonlj' held that title is not transferred by the entry of judg- ment, but remains in the plaintiff until he has received actual satisfac- tion ; see Atwater v. Tnjyper, 45 Conn. 144 ; Turner v. £rock, 6 Heisk. 50; liovejoyy. Murray, 3 Wall. 1 ; Ms parte Drake, 5 Ch. D. 866 ; Brinsmead v. Harrison, L. R. 7 C. P. 547 ; 1 Greenl. Ev. § 533 and note ; and the law has been commonly so administered by our own trial courts. We think this doctrine better calculated to do justice, and see no reason why we should not hold it to be law. Whenever the title passes, as there has been no sale or gift, and no title by prescription or by possession taken upon abandonment by the true owner, the transfer is made by his inferred election to recognize as an absolute ownership the qualified dominion wrongfully assumed by the defendant. The true owner makes no release in terms and no election in terms to relinquish his title ; but the election is inferred hy the law, to prevent injustice. Formerly this election was inferred when judgment for the plaintiff was entered, because his damages, measured by the value of the chattel and interest, were then authoritatively assessed, and the judgment brought to his aid the power of the court to enforce its coUeo- 122 MTLLEB V. HYDE. tion out of the wrongdoer's estate or by taking his person ; and this was deemed enough to insure actual satisfaction. If so, it was just to infer that when he accepted these rights he elected to relinquish to the wrongdoer the full ownership of the chattel. An election was not in- ferred when the suit was commenced, although the plaintiff then alleged that the defendant had converted the chattel, and although the writ might contain a capias, because, owing to the uncertainties attendant upon the pursuit of remedies by action, it was not just to infer such an election while ultimate satisfaction for the wrong was but problematical. Forms of action are a means of administering justice, rather than an end in themselves. When it is seen that the practical result of a form of action is a failure of justice, the courts will make such changes as are necessary to do justice. If the entry of judgment in trover usually gave the judgment creditor but an empty right, it was not just to infer that upon acquiring such a right he relinquished the ownership of the chattel, and the rule that required the inference to be then drawn was properly changed. The ground for inferring such an election was that upon the entry of judgment he acquired an effectual right in lieu of his property, and the doctrine that without some actual satisfaction the inference of an election would not be drawn has been shown by experi- ence to be necessary to the administration of justice, and has been gen- erally acted upon, and the modern rule adopted that the plaintiff's title is not transferred by the entry of judgment, but is transferred by actual satisfaction. Trover is but a tentative attempt to obtain justice for a wrong, and until pursued so far that it has given actual satisfaction ought not to bar the plaintiff from asserting his title. The present doc- trine is consistent with the general principle stated by Lord Ellen- borough in Drake v. Mitchell, 3 East, 251, and quoted in Vanuxem v. £urr, 151 Mass. 386, 389, as approved in Lordy. JBigelow, 124 Mass. 185, that "a judgment recovered in any form of action is still but a security for the original cause of action until it be made productive in satisfaction to the partj'." Whether the holder of an unsatisfied judg- ment in trover can without a fresh taking maintain replevin against .the same defendant, or is restricted to one action against the same person for a single tort, we do not now decide. See Bennett v. Hood, 1 Allen, 47 ; Trask v. Hartford d> New Haven Railroad, 2 Allen, 331 ; Bliss v. New York Central S Hudson River Railroad, 160 Mass. 447. If he is so restricted, it is not because the ownership of the chattel has been transferred. But the present plaintiff has done more than to take judgment in trover. In her action of trover she caused the horse to be attached upon mesne process, and since obtaining judgment she has caused the horse to be seized as property of Bryden in execution on the judgment as his property, and to be kept and offered for sale on the execution until, as it was about to be so sold, it was replevied by Davenport from the officer in a suit between them which is still pending in Connecticut. That suit is not a bar to this action, because it is not between the same MILLER V. HYDE. 123 parties, JVhite v. DolUver, 113 Mass. 400 ; Mwell v. Newton, 10 Pick. 470. But we must still inquire whether, assuming that the plain- tiff's property in the horse was not transferred by her judgment in trover, it was transferred by that judgment taken in connection with the facts of the attachment and levy, and also whether she is estopped by the attachment and the levy from asserting her title in this action. In the first place, the doctrine that a mortgagee of personalty who attaches the mortgaged goods on a writ against the mortgagor cannot afterwards enforce his mortgage, is not in point. The mortgagee is not the owner, but has merely a lien, and may well be held to relinquish that lien when by the attachment he establishes another. But if the plaintiff has actual ownership, and thus the full right to do with his own property as he may choose, merely procuring it to be attached on mesne process or seized on execution as the property of another does not work a change of ownership. The owner does not sell or give away his goods. In cases which are likely to occasion such conduct, there usually is, as in the present case, a disputed title; and it is with the hope of avoiding litigation over it that the real owner consents that the chattel shall for a special purpose only be treated as the property of another. This is "consistent with an intention ultimately to assert title should circumstances render it desirable for him so to do " ; and he may well wait to see the issue, which may be such as to avoid the litigation of the question of title. See Machay v. Holland, 4 Met. 69, 74 ; Dewey v. Fidd, 4 Met. 381, 384 ; Johns v. Church, 12 Pick. 557 ; Bur sley Y. Hamilton, 15 Pick. 40, 43; Edmunds v. Hill, 133 Mass. 445, 446. Nor is there any good reason whj' such a use of his own property by a plaintiff in trover should be held to devest him of his ownership when it would not have that effect in other forms of action. In trover he is in legal effect asserting by his suit that the title is and will remain in himself until he receives satisfaction on a judgment, and his subjection of the chattel to attachment or to seizure on execution is simply a use which he chooses to make of his own property which does not devest him of title or hamper him in the subsequent assertion of his ownership except by the rules of estoppel. The case of Ex parte Drake, above cited, is an authority to the point that a plaintiff who has brought an action of detinue and taken judgment both for the detention and the value of the chattel, and has also proved his judgment in bank- ruptcy after having had the chattel seized on execution as the defend- ant's property, maj' nevertheless assert his ownership and have process to restore to him the chattel in specie. In such cases courts look to substance rather than form, and do not by inferring an election or a waiver deprive of his property a plaintiff who has unfortunately resorted to some futile method of procuring redress. In the present case, the natural construction to be put upon the plaintiff's conduct in attaching and beginning a levy upon her own horse in a suit asserting her ownership is, that, while she contended that in fact the horse was her own, she consented that, if litigation 124 MILLER V. HYDE. as to the true state of title could be avoided by so selling the horse that the proceeds of the sale should be applied upon her claim for damages, she would in that event no longer assert her paramount title. Her implied offer not having been accepted, and Davenport having rendered impossible the accomplishment of her plan to avoid further litigation, she could thereupon say that all which had gone before was provisional upon the completion of the levy, and could enforce her right of property bj' any proper action against Davenport, or any one who might thereafter take wrongful possession of her horse, unless she was barred by the rules of estoppel. Upon the question of estoppel, it is material to the decision of the present case to consider only whether she is estopped as to the present defendant or his principal Davenport. Whether she has rendered Bryden, or the officer who made the attachment or the levj' in the Bryden suit, liable to costs, expenses, or chance of loss, is not material upon the question whether she is barred by the doctrines of estoppel from maintaining the present action. She is now prosecuting one of several successive wrongdoers for a fresh interference with the posses- sion of her propertj' ; and neither the present defendant, Hj-de, nor Davenport, for whom he claims to be acting as agent, has done or suffered anything, or been put to any liability by reason of wliich the plaintiff should be estopped from asserting her title. Upon the facts, Davenport in taking the horse in replevin did not rely upon the attach- ment or levj-, but acted in denial of their validity ; and Hyde is not shown to have been influenced by them in consenting to become Daven- port's agent in keeping the horse, or in any manner. Neither Hyde nor Davenport is shown to have changed his position or course of conduct relying upon the plaintiffs action in causing the attachment or the levy, and the plaintiff is not estopped by it from maintaining the present action. In the opinion of a majority of the court, the result must be. Judgment set aside, and judgment for the plaintiff ordered?- Holmes, J. As the judges are not unanimous it becomes necessary for me to state my views, which otherwise I should not do, as they have not persuaded my brethren. I am of opinion that the plaintiff ought to be barred in this action by her recovery of judgment in trover for the same horse. I am aware that the doctrine that title passes by judgment without satisfaction is not in fashion, but I never have been able to understand anj' other. It always has seemed to me that one whose property has been converted has an election between two courses, that he may have the thing back or may have its value in damages, but that he cannot have both ; that when he chooses one he necessarily gives up the other, and that by taking a judgment for the value he does choose one conclusively. He 1 See Lovejoy v. Murray, 3 Wall. 1 ; Spivey v. Morris, 18 Ala. 254 ; Atwater v. Tupper, 45 Conn. 144; Jones v. Cobb, 84 Me. 153; Singer Mfg. Co. T. Skillman, 52 N. J. L. 263; Marsden v. Cornell, 62 N. Y. 216. MILLEK V. HYDE. 125 cannot have a right to the value of the thing, effectual or ineffectual, and a right to the thing at the same time. The defendant is estopped bj' the judgment to deny the plaintiff's right to the value of the thing. Usually estoppels by judgment are mutual. It would seem to follow that the plaintiff also is estopped to deny his right to the value of the thing, and therefore is estopped to set up an inconsistent claim. In general an election is determined bj- judgment. Jiutler v. Hildreth, 5 Met. 49 ; Bailey v. Hervey, 135 Mass. 172, 174; Goodyear Dental Vulcanite Co. v. Caduc, 144 Mass. 85, 86 ; Baphael v. Reinstein, 154 Mass. 178, 179. I know of no reason why a judgment should be less conclusive in this case than any other. Of course, I am speaking of a judgment for the value of the chattel, not of one giving nominal damages for the taking. The argument from election is adopted in White V. Philbrick, 5 Greenl. 147, 150, which so far as I know is still the law of Maine, notwithstanding the remark in Murray v. Love- joy, 2 Cliff. 191, 198. See also Shaw, C. J., in ButUr v. Sildreth, 5 Met. 49, 53. The most conspicuous cases which have taken a different view speak of the hardship of a man's losing his property without being paid for it, and sometimes cite the dictum in Jenkins, 4th Cent., Case 88, Solutio pretii emptionis loco habetur, which is dogma, not reasoning, or, if reasoning, is based on the false analogj' of a sale ; but they leave the argument which I have stated unanswered, not, as I think, because the judges deemed it unworthy of answer or met by paramount considera- tions of policj-, but because they did not have either that or a clue to the early cases before their mind. Lovejoy v. Murray, 3 Wall. 1,17; Brinsmead v. Harrison, L. R. 6 C. P. 584, 587 ; s. c. L. E. 7 C. P. 547, 554. It is not the practice of the English judges to overrule the common law because they disapprove it, and to do so without dis- cussion. In Brinsmead v. Harrison, Mr. Justice Willes thought he was proving that the common law always had been in accord with his position. So far as the question of policy goes, it does not seem to me that the possibility — it is only the possibility — of an election turning out to have been unwise, is a sufficient reason for breaking in upon a principle which must be admitted to be sound on the whole, and for overthrowing the doctrine of the common law by a judicial flat. I am not informed of any statistics which establish that judgments for money usually give the judgment creditor only an empty right. That the view which I hold is the view of the common law I think may be proved by considering what was the theory on which the reme- dies of trespass and replevin were given. In Y. B. 19 Hen. VI. 65, pi. 5, Newton saj's : "If 3'ou had taken my chattels it is at my choice to sue replevin, which shows that the property is in me, or to sue a writ of trespass, which shows that the property is in the taker ; and so it is at my will to waive the property or not." In 6 Hen. VII. 8, pi. 4, Vavisor uses similar language, and adds, " And so it is of goods taken, one may devest the property out of himself, if he will, by proceedings 126 MILLER V. HYDE. in trespass, or demand propertj' by reple\'in or writ of detinue," if he prefers. There is no doubt that the old law was that replevin affirms property in the plaintiff and trespass disaffirms it, and that the plain- tiff has election. Bro. Abr. Trespass,, pi. 134. 18 Vin. Abr. 69 (E). Anderson & Warberton, JJ., in Bishop v. Montague, Cro. Eliz. 824. The proposition is made clearer when it is remembered that a tortious possession, at least if not felonious, carried with it a title by wrong in the case of chattels as well as in the case of a disseisin of land, as ap- pears from the page of Viner just cited, and as has been shown more fully by the learned researches of Mr. Ames and Mr. Maitland, 3 Harv. Law Kev. 23, 826. See 1 Law Quarterly Eev. 324. I do not regard that as a necessary doctrine, or as the law of Massachusetts, but it was the common law, and it fixed the relations of trespass and replevin to each other. Trespass, and on the same principle trover, proceed on the footing of affirming property in the defendant, and of ratifying the act of the defendant which already has affirmed it. I do not see on what other ground a judgment for the value c.in be justified. If the title still is in doubt, or remains in the plaintiff, the defendant ought not to be charged for anything but the tortious taking. Again, cannot the plaintiff take the converted chattel on execution ? And on what principle can he do so if it does not yet belong to the defendant ? I say but a word as to the practical difficulties of the prevailing rule. No doubt they can be met in one way or another. Suppose the plaintiff after judgment were to retake the chattel by his own act, it would strike me as odd to say that this satisfied the judgment, and as impossible to say that it satisfied the whole judgment, which was for the tort, as well as for the value of the property. Yet on the view which I oppose I presume that the judgment could not be collected. See Coombe v. Sansom', 1 Dowl. & Ry. 201. It seems to me that the opinion which I hold was the prevailing one in England until Brinsmead v. JETarrison ; Bishop v. Montague, Cro. Eliz, 824; Fenner, J., in Brown v. Wootton, Cro. Jac. 73, 74; s. c. Yelv. 67; Moore, 762; Adams y. Br oughton, 2 Strange, 1078; s. 0. Andrews, 18, 19 ; Bucklandy. Johnson, 15 C. B. 145, 157, 162, 163. Serjt. Manning's note to 6 Man. & Gr. 640. See Lamine v. Dorrell, 2 Ld. Raym. 1216, 1217. And I should add that I see a relic of the ancient and true doctrine in the otherwise unexplained notion that when execution is satisfied the title of the defendant relates back to the date of the conversion. Hepburn v. SeweU, 5 Har. & J. 211 ; Smith V. Smith, 51 N. H. 571, and 50 N. H. 212. Compare Atwater V. Tupper, 45 Conn. 144, 147, 148. The only authorities binding upon us are the ancient evidences of the common law as it was before the Revolution and our own decisions. I have shown what I think was the common law. Our own decisions leave the question open to be decided in accordance with it. Campbell V. Phelps, 1 Pick. 62, 65, 70 ; Bennett v. Hood, 1 Allen, 47. Many cases in other States are collected in Freem. Judgments, (4th ed.) § 237. MILLER V. HYDE. 127 If I am right in my general views, they apply to this case. The plaintiff recovered her judgment in Connecticut, to be sure, as ancillary administrator there, but the horse was there, -and she was entitled to it there, so that her judgment recovered there passed the title. Like any other transfer of a chattel valid in the place where it was made and where the chattel was situated, it will be respected elsewhere. The Connecticut law was not put in evidence, and therefore we must pre- sume that a judgment there has whatever effect we attribute to it on the principles of the common law. It is not argued that the defendant stands any worse than Bryden, against whom the judgment was recov- ered and from whom the defendant's bailor bought the horse.^ Knowlton, J. I am of opinion that the judgment in this case should be for the defendant. It is a general rule of law that when one is en- titled to either of two inconsistent remedies for a wrong done him, the pursuit of one of them so far as to affect the interests of the other party is a conclusive election, and a waiver of the other. Hooker v. Olm- stead, 6 Picli. 481 ; Butler v. Hildreth, 5 Met. 49, 53 ; Arnold v. Bichmond Iron Works, 1 Graj', 434, 440 ; Connihan v. Thompson, 111 Mass. 270 ; Washburn v. Great Western Ins. Go., 114 Mass. 175. Ormsby v. Dearborn, 116 Mass. 386; Seavey v. Potter, 121 Mass. 297; Bailey v. Hervey, 135 Mass. 172, 174; Goodyear Dental Vul- canite Co. V. Caduc, 144 Mass. 85, 86 ; Raphael v. JReinstein, 154 Mass. 178. It is under this rule that the owner of property wrongfully taken by another is held to be precluded from claiming it after he has elected to recover the value of it from the wrongdoer. The property passes, not because there has been a sale, but because the owner has elected to receive instead of it that which represents it, and because it would be unjust to permit him to take the property after having chosen the money which is its equivalent. The principal question in cases of this kind is at what stage of the proceedings the owner shall be deemed to have made an election that binds him. On principle, and as a general rule, he should be bound by the election he makes, if in making it he goes so far as to affect the rights or interests of the other party. It would be unjust, when he may proceed only in one or the other of two opposite directions, that he should go forward in one direction in such a way as materially to affect the other party, and then turn backward and go on in the other, and compel his adversary to satisfy him in a different way. In very early cases it was held that the owner of property unlawfully taken makes a conclusive election of his remedj' which passes the prop- erty as between the parties when he takes judgment for the value of it against the wrongdoer. He thereby puts his claim for property of which he chooses to say that he has been devested into the form of a debt apparent of record, for the satisfaction of which he may at any time have execution from the court. 1 See Rogers v. Moore, Rice, 60 ; Fox v. Northern Liberties, 3 W. & S. 107 ; Barb T. Fish, 8 Blackf. 481. 128 MILLBE V. HYDE. But where nothing more is done than to take a judgment without security there are considerations which have led in many courts to a modification of the rule in favor of the owner. Sometimes when he brings his suit in trover he is unable to find the property', and very often his judgment for the value of it cannot be made available. In taking judgment he merely puts in form and settles by adjudication a claim for the value of the property, to which he was entitled from the beginning if he chose to enforce it. He does not otherwise disturb the defendant or his property, and, while it would doubtless be more logi- cal to say that he is concluded by his election as soon as he has recov- ered judgment, it is perhaps a practical rule which will more generally work out justice to hold that if he does nothing more to collect the money, and if he proceeds within a reasonable time, he may still take the property as his own. But if, having fixed the liability of the defend- ant for a debt by taking judgment, he says by his conduct that he in- tends to collect the debt, and does that which afifects the interests of the defendant in that particular, he should be deemed to have made his election conclusive: The cases which say that the rights of the parties in regard to the title are fixed, not by taking judgment, but by obtaining satisfaction, cannot mean that one may take judgment for the full value of the prop- erty, and collect one half or two thirds of the amount, and may after- ward take and hold the property itself under his original title. Many of these cases were in jurisdictions where attachment on mesne process is not permitted, and where there is no security for a judgment when it is rendered. So far as I am aware, there is no case in which is con- sidered the effect of taking judgment in a suit where there was an at- tachment which secured the collection of the judgment, or the effect of a partial satisfaction, or of a proceeding after judgment to enforce it by a levy on the property. It seems to me there is good ground for hold- ing that, when one undertakes to collect the value of his property by making an attachment to secure the judgment which he may obtain, and then prosecutes his claim to judgment, he has done that which affects the rights of the other party far more than the mere recovery of a judgment on an unsecured claim. But however that may be, when after judgment the plaintiff proceeds to obtain satisfaction by a levy on the defendant's property, and much more when he levies on the prop- erty for the value of which he obtained judgment, and advertises it for sale as the property of the defendant, he should be held to have fixed his rights and the rights of the other party in regard to the title beyoud his power to change them. By taking the defendant's property to sat- isfy the execution he subjects him to the legal costs and expenses at- tendant upon the levy, and deprives him of what otherwise he would have. Even if he afterwards returns the property, he puts upon him the risk of loss or depreciation in value while it is held. If the prop- erty had not been taken on execution, the defendant might have ne- gotiated to obtain the means of satisfying the execution by disposing MILLER V. HYDE, 129 of the propert)', or he might have attempted to satisfy it in some other w&y. He may have relaxed his efforts, relying on the levy, and if the plaintiff is permitted to abandon the levy and proceed in another way he may ultimately suffer loss on account of what the plaintiff did. This is equally true whether the property is that for which the plaintiff re- covered his judgment or not, and if it is the same the plaintiff's act is a distinct and positive assertion that the property is the defendant's by reason of his judgment and of his purpose to collect the judgment and to apply the proceeds of the property' in the satisfaction of it. Unless the rule stated at the beginning of this opinion is to be abrogated alto- gether, it must be held that when a plaintiff has elected to take judg- ment for the full value of property converted, and has then levied the execution upon property of the defendant which is subject to be taken on execution — especially if it is the property converted — he is thereby precluded from reversing his election and taking the converted property under his original title. The case of £!x parte Drake, 5 Ch. D. 866, cited in the opinion of the majority of the court, was an action of detinue, where by the terms of the judgment the plaintiff was to have either the property or the ascertained value of it. If the plaintiff cannot abandon her judgment and levy, and reclaim the horse as against Brj'den, she cannot as against this defendant, who is in privity with Bryden through Davenport, who is a bona fide pur- chaser from Bryden. So far as the pending proceedings in Connecticut under the levy and the subsequent replevin suit there affect the title, they are binding on the plaintiff here, for the officer was acting in en- forcement of her rights by her direction, and she is therefore in privity with him. His relation to her is very different from that of a mere bailee. The Chief Justice concurs in this opinion. 130 lEONS V. SMALLPIECE. SECTION II. GIFTS OF CHATTELS. Note. — The passing of personal property on deatli, either testate or intestate, is dealt with later under the title of Wills and AdmiBistration. The important subjects of Sales and Mortgages are treated in separate courses. IRONS V. SMALLPIECE. King's Bench. 1819. {Reported Z B. Sr Aid. 551.] Trover for two colts. Plea, not guilty. The defendant was the executrix and residuary legatee of the plaintiff's father, and the plain- tiff claimed the colts, under a verbal gift made to him by the testator twelve months before his death. The colts, however, continued to remain in possession of the father until his death. It appeared, further, that about six mouths before the father's death, the son having been to a neighboring market for the purpose of purchasing hay for the colts, and finding the price of that article very high, mentioned the circum- stance to his father ; and that the latter agreed to furnish for the colts any hay they might want at a stipulated price, to be paid by the son. None, however, was furnished to them till within three or four days before the testator's death. Upon these facts, Abbott, C. J., was of opinion, that the possession of the colts never having been delivered to the plaintiff, the property therein had not vested in him by the gift ; but that it continued in the testator at the time of his death, and con- sequently that it passed to his executrix under the will ; and the plaintiflf was therefore nonsuited. Ourney now moved to set aside this nonsuit. By the gift, the prop- erty of the colts passed to the son without any actual delivery. la Wortes V. Clifton, Roll. Rep. 61, it is laid down by Coke, C. J., that, bj' the civil law, a gift of goods is not good without delivery ; but, in our law, it is otherwise ; and this is recognized in Shepherd's Touch- stone, tit. Gift, 226. Here, too, from the time of the contract by the father to furnish hay for tlie colts at the son's expense, the father became a mere bailee, and his possession was the possession of the son ; and an action might now be maintained by the defendant, in her character of executrix, upon that contract, for the price of the hay actually provided. Abbott, C. J. I am of opinion, that by the law of England, in order to transfer property by gift there must either be a deed or instru- ment of gift, or there must be an actual delivery of the thing to the donee. Here the gift is merely verbal, and differs from a donatio mor- tis causa only in this respect, that the latter is subject to a condition, COCHRANE V. MOORE. 131 that if the donor live the thing shall be restored to him. Now, it is a well-established rule of law, that a donatio mortis causa does not transfer the propertj' without an actual deliverj'. The possession must be transferred, in point of fact; and the late case of Bimn v. Mark- ham, 2 Marsh. 532, where all the former authorities were considered, is a A'erj' strong authority upon that subject. There Sir G. Clifton had written upon the parcels containing the property the names of the parties for whom they were intended, and had requested his natural son to see the property delivered to the donees. It was therefore manifestly his intent.ion that the property should pass to the donees ; yet, as there was no actual deliver}-, the Court of Common Pleas held that it was not a valid gift. I cannot distinguish that case from the present, and therefore think that this propertj^ in the colts did not pass to the son by the verbal gift ; and I cannot agree that the son can be charged with the hay which was provided for these colts three or four daj's before the father's death ; for I cannot think that that tardy supply can be referred to the contract which was made so manj' months before. HoLUOYD, J. I am also of the same opinion. In order to change the propertj' by a gift of this description, there must be a change of possession : here there has been no change of possession. If, indeed, it could be made out that the son was chargeable for the hay provided for the colts, then the possession of the father might be considered as the possession of the son. Here, however, no ha}- is delivered during a long interval from the time of the contract, until witliin a few days of the father's death ; and I cannot think that the hay so delivered is to be considered as delivered in execution of that contract made so long before, and consequently the son is not chargeable for the price of it. Best, J. concurred. Abbott, C. J. The dictum of Lord Coke in the case cited must be understood to apply to a deed of gift ; for a party cannot avoid his own voluntary deed, although he maj- his own voluntary promise. Mule rejused. COCHRANE V. MOORE. Queen's Bench, 1890. [Reported 25 Q. B. D. 57.] Fey, L. J. The judgment I am about to read is that of Lord Justice Bowen and myself. The question in this interpleader issue arises in respect of a sum of money representing one-fourth of the proceeds of a horse called Kil- worth, sold by Messrs. Tattersall. The plaintiff claims the money under a bill of sale executed by one Benzon, comprising this and other 132 COCHRANE V. MOORE. horses. The defendant claims it under an earlier gift of one-fourth of the horse to him by Benzon. The relevant facts, as they appear in the judgment of Lopes, L. J., and in that part of the evidence to which he attached credence, are shortly as follows : — The horse was in June, 1888, the property of Benzon, and was kept at the stables of a trainer named Yates, in or near Paris, and on the 8th of that month was ridden in a steeplechase 113' Moore, a gentleman rider. In consequence, as it appears, of some accident, the horse was not declared the winner, and on the same daj-, according to the view of the evidence taken by the learned judge, Benzon by words of present gift gave to Moove, and Moore accepted from Benzon, one undivided fourth part of this horse. A few daj-s subsequently Benzon wrote to Yates, in whose stables the horse was, and told him of the gift to Moore. But he did not in- form Moore, nor did Moore know of any communication to Yates of the fact of the gift. On July 9, 1888, Cochrane advanced 3,000Z. by way of loan to Ben- zon, and took from him a promissory note for 3,500Z., payable on August 9 following. On July 16 of the same year, Cochrane advanced to Benzon a fur- ther sum of 4,0001. , and took a promissory note for 4,800?., payable on September 16. On July 26 Cochrane advanced to Benzon two sums of money : — One, 1,680Z. 10s. lid. (to be paid to one Sherard, a trainer), and iiol.; making together 2,425/. 10s. lie?. And on the same da^- Benzon ex- ecuted a bill of sale for lO.OOOZ., under which Cochrane claims. Kil- worth and other horses were included in the schedule to this instrument. It is proved by the evidence of the witnesses, whom the learned judge believed, that, before the execution of the bill of sale, Benzon, with the assistance of a friend, Mr. Powell, was going through the list of horses to be included in the schedule, and that when Kilworth was mentioned Powell spoke of Moore's interest in the horse, and that thereupon a discussion arose as to what was to be done with it, and that Cochrane undertook that it should be " all right." After this the bill of sale was executed by Benzon. On these facts, it was argued that there was no delivery and receipt of the one-fourth of the horse, and, consequently', that no property in it passed by the gift. The learned judge has, however, held that delivery is not indispensable to the validity of the gift. The proposition on which the Lord Justice proceeded may perhaps be stated thus : that where a gift of a chattel capable of delivery is made per verba de prcBsenti by a donor to a donee, and is assented to by the donee, and that assent is communicated to the donor by the donee, there is a perfect gift, which passes the property without delivery of the chattel itself. This proposition is one of much importance, and has recently been the subject of some diversity of opinion. We there- COCHRANE V. MOOEE. 133 fore feel it incumbent upon us to examine it, even thougli it might be possible in the present case to avoid that examination. The proposition adopted by the Lord Justice is in direct contra- diction to the decision of the Court of King's Bench in the year 1819 in Irons v. Smallpiece, 2 B. & A. 551. That case did not proceed upon the character of the words used, or upon the difference between verba de prmsenti and verba de futuro, but upon the necessity of delivery to a gift otherwise sufficient. The case is a very strong one, because a Court consisting of Lord Tenterden, C. J., and Best and Holroyd, JJ., refused a rule nisi, and all held delivery to be necessary. The Chief Justice said : " I am of opinion that, by the law of England, in order to transfer propertj' by gift there must either be a deed or in- strument of gift, or there must be an actual deliverj' of the thing to the donee," and he went on to refer to the case of Bunn v. Markham, 2 Marsh. 532, as a strong authority. These observations of the Chief Justice have created some difficulty. "What did he mean by an instrument as contrasted with a deed ? If he meant that an instrument in writing not under seal was different from parol in respect of a gift inter vivos, he was probably in error; but if in speaking of the transfer of property bj' gift, he included gifts by will, as well as gifts inter vivos, then by instrument be meant testamentary instrument, and his language was correct. Holroj'd, J., was equall3' clear on the principal point : " In order to change the property by a gift of this description " (by which we under- stand him to mean a gift inter vivos) " there must be a change of possession." The correctness of the proposition thus laid down has been asserted in manj- subsequent cases of high authority. Thus in Reeves v. Capper, 5 Bing. N. C. 136, the Court of Common Pleas under Tindal, C. J., referred to Irons v. Smallpiece, 2 B. & A. 551, and the proposition " that a verbal gift of chattels, unaccompanied with delivery of possession, passes no propertj' to the donee " as being good law and without the expression of any doubt. In 1849, in the case of Shower v. Pilck, 4 Ex. 478, the same ques- tion came before the Court of Exchequer, and the Court without hesi- tation affirmed the ruling of Lord Truro, then Wilde, C. J., at 7iisi prius, and adopted the rule of Irons v. Smallpiece, 2 B. & A. 551. The alleged gift in question was per verba de futuro, but in respect of chattels then in the possession of the intended donee. The gift was held open to both objections. "To pass the property," said Alder- son, B. , " there must be both a gift and a delivery : here there is hardly a gift." " There must be a delivery to make the gift valid," said Lord Cranworth, then Rolfe, B., " here there is a mere statement that the goods which the defendant has in her possession the owner will give her." Again (in 1865), in Jiourne v. Foshroohe, 18 C. B. n. s. 515, Erie, C. J., adopted the rule in Irons v. Smallpiece, 2 B. & A. 551, as 134 COCHRANE V. MOORE. undoubted law ; and in 1870, in Douglas v. Douglas, 22 L. T. n. s. 127, the Court of Exchequer declined to consider whether thej' should overrule that case, and expressed a decided leaning in its favor. In Ireland, in like manner, the doctrine has been asserted, Lord Plunkett, as Lord Chancellor, holding delivery to be the only admis- sible evidence of the gift of a personal chattel : Patterson v. Williams, L. & G. temp. Plunkett, 95. We have thus a great body of authority in favor of the necessity of delivery; but, on the other hand, there are several authorities which require consideration. The first note of dissent was sounded in the year 1841, or twenty- two j-ears after the decision of the case of Irons v. Smallpiece, 2 B. & A. 551, by Serjeant Manning in a note on the case of the London and Brighton Railway Go. v. Fairclough, 2 Man. & G. 674, at p. 691, in which he impugned the accuracy of Irons v. Smallpiece, 2 B. & A. 551, and asserted tiiat after the acceptance of a gift by parol the estate is in the donee without any actual deliverj' of the chattel. The authori- ties cited in that note we shall hereafter consider. In 1845, in Lunnv. Thornton, 1 C. B. 379, Maule, J., interlocutorily observed that he had always thought Lord Tenterden's opinion in Irons V. Smallpiece, 2 B. & A. 551, very remarkable, because by referring to instruments of gift he left it to be inferred that an assignment might be otherwise than b^' deed. But bej'ond this his criticism did not proceed. To the report of this case Serjeant Manning appended a note similar to that in the second volume of Manning and Granger. Two jxars afterwards (1847) Lord Wensleydale, in Ward v. Audland, 16 M. & W. 862, quoted the passage from Lord Tenterden's judgment already cited, and observed, "that is not correct." To which counsel replied by referring to the criticism of Maule, J., and the learned judge made no further observation. The criticism of the two learned judges was probabh' directed to the same point, namely, the use of the expres- sion, deed or instrument. Lord Cranworth was present as a Baron of the Exchequer during the argument in Ward v. Audland, 16 M. & W. 862, and, as we have seen, two j-ears afterwards unhesitatingly adopted Irons V. Smallpiece, 2 B. & A. 551, and that without note or comment — a course which he would hardly have pursued if he knew that Lord Wensleydale considered the case itself bad law. In 1852, in the case of Wlory v. Denny, 7 Ex. 581, where the authori- ties lastly cited were mentioned. Lord Wensleydale referred to the two notes of Seijeant Manning, and read a portion of the latter, but ex- pressed no opinion as to the correctness or incorrectness of the conclusion. In 1861 the case of Winter v. Winter, 4 L. T. n. s. 639, came be- fore the Court of Queen's Bench. In that case a barge belonging to a father had been in the actual possession of his son as his servant. The father gave the barge to the son, and he subsequently, with the father's knowledge and assent, possessed and worked the barge as his own. COCHKANE V. MOOEE. 135 and paid the wages of the crew. Wightmau, J., upheld the title of the sou on the ground of a change in the possession consequent on the gift. Crompton, J., on the ground that actual delivery of the chattel is not necessarj' to a gift inter vivos, and that it was sufficient that the conduct of the parties showed that the ownersliip had been changed. Lord Blackburn, then Blackburn, J., simplj' concurred. What, how- ever, is most to our present point, Crompton, J., said, that although Iroiis V. Sniallpiece, 2 B. & A. 551, and Shower v. Pilck, 4 Ex. 478, had not been overruled, they had been hit hard by the subsequent cases. In 1883 the case of Danby v. Tucker, 31 W. R. 678, came before Pollock, B., sitting as a judge of the Chancery Division, and he de- clined to follow the decision of Irons v. Smallpiece, 2 B. & A. 551, saying that he ' ' certainly could not accede to the proposition generally that the actual delivery of a chattel is necessary to create a good gift ifiter vivos." "The question to be determined,'' he said, "is not whether there has been an actual handing over of property manually, but whether, looking at all the surrounding circumstances of the case, and looking particularlj' at the nature and character of the chattel which is proposed to be given, there has or has not been a clear inten- tion expressed on the part of the donor to give, and a clear intention on the part of the recipient to receive, and act upon such gift. When- ever such a case should arise again, 1 am confident that that would be the basis of the decision of a Court of Common Law, and, of course, the same result would follow in a Court of Equit}'. Lastly (in 1885), Cave, J., in the case of In re Ridgway, 15 Q. B. D. 447, expressed his opinion " that it is going* too far to say that the retention of possession by the donor is conclusive proof that there is no immediate present gift ; although, undoubtedly, unless explained or its effect destro3'ed by other circumstances, it is strong-evidence against the existence of such an intention." These two latter authorities have been followed by Lopes, L. J., in the case now before us, feeling that when sitting as a judge of the first instance he could not rightly depart from them. There is thus some difference of judicial opinion as to the rule stated in Irons v. Smallpiece, 2 B. & A. 551. We cannot think that the few recent decisions to which we have referred are enough to overrule the authority of that decision, and the cases which have followed it, but they make it desirable to inquire whether the law as declared before 1819 was in accordance with that decision, or with the judgment of Pollock, B., in Danby v. Tucker, 31 W. R. 578. This inquiry into the old law on the point is one of some difficulty, for it leads into rarel3'-trodden paths, where (as is ver}' natural) we have not had the assistance of counsel, and where the materials for knowledge ai-e for the most part undigested. The law enunciated by Bracton in his book " de acquirendo rerum dominio," seems clear to the effect that no gift was complete without 136 COCHEANE V. MOOEB. tradition of the subject of the gift. "Item oportet," he says (vol. i., p. 128), "quod donationem sequatur rei traditio, etiam in vita dona- toris et donatorii ; alioquin dicetur talis donatio potius nuda promissio quam donatio, et ex nuda proraissione non nascitur actio, non magis quam ex nudo pacto, non enim valet donatio imperfecta, nee chartse confectio, nee homagii captio cum omni solemnitate adhibita, nisi sub- sequuta fuerit seysina et traditio in vita donatoris." And again (p. 300) : "Item non sufflcit chartam esse factam & signatam nisi probetur donationem esse perfectam, & quod omnia, quse donationem faciunt, rite praecesserunt, & subsequutam esse traditionem, alioqui nunquam transferri potest res donata ad donatorium. Poterit enim homagium prsecessisse, & qu5d charta rite facta sit, & vera & bona & cum so- lemnitate recitata & audita, tamen nunquam valebit donatio nisi tunc demum cum fuerit traditio subsequuta, & sic poterit charta essa vera, sed sine facta seysina, nuda." And to the same effect is another pas- sage in chapter xviii., p. 310. '^ In Bracton's day, seisin was a most important element of the law of property in general ; and, however strange it may sound to jurists of our day and country, the lawyers of that day applied the term as freely to a pig's ham (Select Pleas in Manorial Courts, p. 142;^ see also Professor Maitland's papers on the Seizin of Chattels, the Beatitude of Seizin, and the Mystery of Seizin : Law Quarterly Rev., 1., 324 ; ii., 484; iv., 24, 266) as to a manor or a field. At that time the distinc- tion between real and personal property had not j'et grown up : the distinction then recognized was between things corporeal, and things incorporeal : no action could then be maintained on a contract for the sale of goods, even for valuable consideration, unless under seal : the distinction so familiar to us now between contracts and gifts had not fully developed itself The law recognized seisin as the common inci- dent of all property in corporeal things, and tradition or the delivery of that seisin from one man to another as essential to the transfer of the property in that thing, whether it were land or a horse, and whether by way of sale or of gift, and whether by word of mouth or by deed under seal. This necessit}' for delivery of seisin has disappeared from a large part of the transactions known to our law ; but it has survived in the case of feoffments. Has it also survived in the case of gifts ? It has been suggested that Bracton, whilst purporting to enunciate the law of England, is reallj' copying the law of Rome. But bj' the law of Rome, at least since the time of Justinian, gift had been a purely consensual transaction, and did not require delivery to make it perfect (Inst, ii., vii.). Coming next to the great law-writers of the reign of Edward I., they hold language substantially the same as that of Bracton, except indeed 1 " Item non valet donatio, nisi subseqnatnr traditio, quia non transfertur per homar gium res data, nee per cbartarum vel instruraeutorum confectionem, quamvis in pub- lico fuerint recitata." 2 Published by the Selden Society. COCHRANE V. MOOKB. 137 that the difiference between transactions purely voluntary, or for pecu- niary consideration, appears to be growing somewhat more important. "Donatio," says Fleta, "est qusedam institutio, quae ex mera liberali- tate, nullo jure cogente, procedit, ut rem a vero ejus possessore ad alium transferatur. Dare autem est rem accipientis facere cum effectu, alioquin inutilis erit donatio, cum irritari valeat et revocari " (Lib. iii., c. 3). He then proceeds to discuss various kinds of gifts, and says : "Alia perfecta, et alia incepta et non perfecta: ut si donatio lecta fuerit et concessa, et homagium captum, ac traditio nondum fuerit subsecula" (loc. cit. ; see also Lib. iii., c. 15). In Lib. iii., c. 7, he discusses the necessary elements of donations, and, amongst other things, the effect of duress on a gift; and here the necessity of delivery is again clearly shown, because, according to Fleta, a promise made without duress followed by delivery under duress is not a valid gift. " Refert tamen," he says, " utrum metus prseveniat donationem vel subsequatur, quia si primo coactus, et per metum compulsus promisero, et postea gratis tradidero, talis metus non excusat; sed si gratis promisero et compulsus tradidero tunc ex- cusat metus." Britton held substantially the same language. In citing him we shall prefer the translation of Mr. Nichols to the Norman-French of the original. In his chapter on Gifts (Lib. ii., c. 3), he gives a very clear description of the nature of a gift. " A gift," he says, "is an act whereby anything is voluntarily transferred from the true possessor to another person, with the full intention that the thing shall not return to the donor, and with full intention on the part of the receiver to re- tain the thing entirely as his own without restoring it to the giver. For the gift cannot be properly made, if the thing given does not so belong to the receiver, that the two rights, of property and of posses- sion, are united in his person, so that the gift cannot be revoked by the donor, or made void by another, in whom the lawful property is vested " (pp. 220, 221). And again (Lib. ii., c. 3) : — " Some gifts are complete, where both rights unite in the purchaser ; others are begun, but not completed ; and such titles are bad, as in case of gifts granted, whereof no livery of seisin follows " (pp. 225-6). Passages of similar import will be found in Lib. i., c. 29, and Lib. ii., c. 8. The third writer of the age of Edward I. is one of a very different character from Fleta and Britton — we mean Horn, the author of the Mirror of Justices; he attacked the judges and the administration of the law in his days with a vehemence which it is to be hoped was unde- served. But though amongst the 155 abusions or abuses of the law which stirred his soul to wrath, some relate to seisin, yet he has noth- ing to say at variance with his contemporaries on the necessity of deliv- er}' ; but, on the contrary, expressly affirms that "the law requires but three things in contracts : 1. The agreement of the wills ; 2, Satisfactiou 138 COCHEANE V. MOOBE. of the donor ; 3. Delivery of the possession and gift " (Chap, v., sect. 1, para. 75). In the reign of Edward IV. a step seems to have been taken in the law relative to gifts which resulted in this modification : that whereas under the old law a gift of chattels by deed was not good without the delivery of the chattel given, it was now held that the gift bj' deed was good and operative until dissented from by the donee. Thus in Michaelmas Term, 7 Edw. 4, pi. 21, fol. 20, it was held by Choke and other justices that if a man executes a deed of gift of his goods to me that this is good and effectual without livery made to me, until I disagree to the gift, and this ought to be in a Court of Record. In Hilary Term, 7 Edw. 4, pi. 14, fol. 29, it was alleged by counsel (Catesby and Pigot), that if a man give to. me all his goods by a deed, although the deed was not delivered to the donee, nevertheless the gift is good, and if he chooses to take the goods he can justify this by the gift, although notice has not been given to him of the gift; and further, that if the donee commit felony before notice, &c., still the king will have the goods, and although notice may be material, nevertheless when he has notice, this would have relation to the time of the gift, &c. But the Court said that such a gift is not good without notice, for a man cannot give his goods to me against my will. An earlier case in the same reign has been cited as bearing on the present question. In Michaelmas Term, 2 Edw. 4, pi. 26, fol. 25, a case arose on trespass of goods, in which Laicon was counsel for the defendant, and the Court was engaged in considering the suffloiencj- of his pleas. In the course of this discussion Laicon put this question, " Suppose I give to you my goods, which are at Everwike, and before that you are seized of tliem, a stranger takes them away, have you not a writ of trespass against the stranger ? " Which he then proceeds to answer. "Yes, Sir, for by the gift at once the property was in 3-ou and the possession by the writ is adjudged in joa presently." Danb^', the Chief Justice of the Common Pleas, seems to have assented, ap- parently on the ground that pleading to such a writ by way of justifica- tion would confess the possession of the plaintiff and the taking by the defendant (car la si vous pled. vr. matter accord, etjustif, et vous con- fess, prisel hors de son poss.). But immediately after this discussion Laicon found his argument so hopeless (videns opinionem curiae contra eum) that he seems to have amended his pleadings. This case seems to us of no authority on the point under investiga- tion. What was said was not in discussion of what really passed by the gift, but only of the effect of pleading in preventing the denial of the plaintiff's possession. The question seems to relate to an effectual gift of goods without possession, but there is nothing to show whether the parties to the discussion had in contemplation a gift by deed or not. The cases already referred to which occurred a few years later seem to show that the effect of a deed in passing the property with- COCHRANE V. MOORE. 139 out delivery of the chattel was claiming the attention of the lawj-ers of that day. Brooke, in his Abridgment (Trespass, 303), cites this case of the 2 Edw. 4, and seems to put it upon a somewhat different ground to the Year Book itself. He says that Danby agreed in Laicon's argument, "for by the gift the property is in him, and then the law adjudges possession, which was not denied, and it seems to be the law, because goods are transitory whilst land is local." We can find no autliority for these reasons in the entry which he professes to be abstracting. This case, as explained by 15rooke, seems to underlie tlie proposi- tion asserted twice in the case oi Hudson v. Hudson, Latch, 214, 263, discussed in 2 Wms. Saunders 47 a, to illustrate the right of an ex- ecutor to sue in trover before actual possession. If, it was said, a man in London gives to me his goods in York and another take them I can bring trespass ; for property, it was added, draws possession in chat- tels personal. The Court were not considering what gift of cliattels did carry the property, but only illustrating the proposition that where the propertj' has passed, as by the will to the executor, there the law attracts to it possession. This would be perfectlj- iUustrated b^- the case of chattels in York transferred by deed executed in London. The whole supposition that this case lends any countenance to the notion that chattels can pass without dcliverj' seems to be derived from the silence of the case as to the way in which the gift was made : and tliis point was not material to the matter under consideration by the Court. Moreover, where a legal result could onlj^ be produced by a deed, our elder law-writers were, we believe, less apt to mention tlie deed than tlieir less technical descendants. One other case in the reign of Edward IV. must be mentioned. In Michaelmas Term, 21 Edw. 4, pi. 27, fol. 65, it was said hy Brian, J., that in detinue of cliattels it was a good plea to say that the plaintiff after the bailment gave them to the defendant and then he could have his law — quod fait concessum. The case appears to go only to this, that if A. after bailing a chattel to B. then gives it to B., B. might defend himself hy his suit in an action of detinue. If good law, it seems to establish that delivery first and gift afterwards is as effectual as a gift first and deliver}' afterwards. One case in the reign of Henry VII. perhaps requires consideration (Hilary Term, 21 Hen. 7, pi. 30, fol. 18). The question seems to have been whether the use of land was presently transferred by a bar- gain and sale, and in the course of the report the following passage occurs : " If I give to a man my cow or mj- horse, he may take tlie one or the other at his election : and the cause is that imraediatelj- by the gift the propertj- is in him, and that of the one or the other at his will ; but if the case were that I will give to him a horse or a cow in future time, then he cannot take either the one or the other, for then it is in mj' election to choose which of them I will give him." The case is Interesting as the first one which we have found which erapha- 140 COCHEANE V. MOOEB. sizes the distinction in gifts between words in the present and in the future tense. But the passage we have cited appears to have no real weight of authority. It is only part of the argument of the Attorney- General, and the argument does not appear tenable; for surely it is open to question whether the gift, even a grant for valuable considera- tion, of one or other of two things at the election of the donee or grantee can pass the property in one or other or both of these things immedi- ately and before the election of the grantee. It is further to be ob- served that the question before the Court turned on the doctrine of election ; and whether the supposed gift was to be by deed or not is a point on which the report is silent. This silence is the only reason whj' the passage has been thought by some persons relevant to the present inquir3-. It was in the reigns of the early Tudors that the action on the case on indebitatus assumpsit obtained a firm foothold in our law ; and the effect of it seems to have been to give a greatly' increased importance to merely consensual contracts. It was probably a natural result of this that, in time, the question whether and when property passed by the contract came to depend, in cases in which there was a value con- sideration, npon the mind and consent of the parties, and that it was thus gradually established that in the case of bai'gain and sale of per- sonal chattels, the property passed according to that mind and inten- tion, and a new exception was thus made to the necessity of delivery. This doctrine that property may pass by contract before delivery appears to be comparativelj' modern. It maj-, as has been suggested, owe its origin to a doctrine of the civil law that the property was at the risk of the purchaser before it passed from the vendor ; but at any rate the point was thought open to argument as late as Elizabeth's reign (see Plowd. lib, and see a learned note, 2 Man. & Ej-. 566). Flower's Case, Noy, 67 (which seems to have been decided in 39 Ehzabeth (see p. 59)), appears to show that the necessitj' of deliver^' was then upheld by the Court. The case is thus stated by Noy (p. 67) : — " A. borrowed one hundred pound of B. and at the day brought it in a bagg and cast it upon tlie table before B. and B. said to A. being his nephew, I will not have it, take it j-ou and carry it home again with you. And by the Court, that is a good gift by paroU, being cast upon the table. For then it was in the possession of B. and A. might well wage his law. By the Court, otherwise it had been, if A. had only offer'd it to B. for then it was chose in action only, and could not be given without a writing." The Court seems to have held that delivery was necessary, but that by the casting of the money on the table it came into the possession of the uncle, and that the nephew taking the money in his uncle's pres- ence and by his direction, there was an actual delivery by the uncle to the nephew — so that the nephew might wage his law, i. e. , might con- scientiously swear that he was not indebted to his uncle (see the case discussed in Douglas v. Douglas, 22 L. T. n. s. 127). COCHRANE V. MOORE. 141 In Jenkins's Centuries (3d Century, Case ix.), it is said : " A gift of anj'thing without a consideration is good : but it is revocable before the delivery to the donee of the thing given. Donatio perficitur pos- sessions accipientis. This is one of the rules of law " : — a statement made with little reference to the other matters treated of in the case.^ "We know of no other authority' exactlj' to the same effect as this, nor is it stated as having the authority of anj' judicial decision. Blackstone's discussion of the subject of gifts of chattels is perhaps not so precise as might be desired ; but his language does not seem to us essentially to differ from the earlier authorities : "A true and proper gift or grant is," he says, "alwa5's accompanied with delivery of possession and takes effect immediately." " But if the gift does not take effect b}^ delivery of immediate possession, it is then not properly a gift, but a contract : and this a man cannot be^ compelled to perform (Book 2, c. 30). In 1818 the year before Irons v. Smallpiece, 2 B. & A. 551, was decided, the then Master of the Rolls, Sir Thomas Plumer, in Hooper V. Goodwin, 1 Sw. 485, 491, said : " A gift at law or in equity supposes some act to pass the property : in donations inter vivos ... if the subject is capable of deliver}', delivery." These are, so far as we can find, all the relevant authorities before the decision in Irons v. Smallpiece, 2 B. & A. 551, though they are not all the authorities that have been citied as relevant. Bat several that have been relied upon appear to us to have no real bearing on the point at issue. Thus in Wortes v. Clifton, Roll. 61 ; Mich. 12 James 1, Coke arguendo uses as an illustration of the difference between the Civil law and ours — that in the Civil law a gift is not good without tradition — but that it is otherwise in our law. Here, for aught that appears, the gift which the learned counsel referred to as good without delivery is a gift by deed. In like manner several authorities which affirm that a gift of chattels may be good without deed and are silent as to delivery (Perkins' Prof- itable Book, Grant, 57; 2 Shep. Touchs. 227; Comyn Digt. Biens D. 2) have been cited as if they likewise asserted that a gift was good without delivery — a proposition which they do not aflarm, or, as we think, imply. This review of the authorities * leads us to conclude that according to 1 " This reasoning I have gone upon is agreeable to Jenk. Cent. 109, case 9, relat- ing to delivery to effectuate gifts. How Jenkins applied that rule of law he mentions there, I know not ; but rather apprehend he applied it to a donation mortis causa ; for if to donation inter vivos, I doubt he went too far." Per Lord Haedwicke, C, in Ward v. Turner, 2 Ves. Sen. 431, 442. " " It has, indeed, been held that a gift is not binding unless it be by deed, or the subject of the gift be actually delivered ; but if the point were res nova, it would perhaps be decided differently. Per Parke, B., in Oulds v. Harrison, 10 Exch. 572, 576. " My brother Manning in a learned note to the case of The London and Bngkon Railway Company v. Fairclough, comments upon that decision [Irons v. Smallpiece] 142 COCHRANE V. MOORE. the old lav) no gift or grant of a chattel was effectual to pass it whether by parol or b\- deed, and whether with or without consideration unless accompanied bj' delivery : that on that law two exceptions have been granted, one in the case of deeds, ^ and the other in that of contracts of sale where the intention of the parties is that the property shall pass before deliverj' : but that as regards gifts by parol, the old law was in force when Irons v. Smallpiece, 2 B. & A. 551, was decided: that that case therefore correctlj- declared the existing law : and that it has not been overruled hy the decision of Pollock, B., in 1883, or the sub- sequent case before Cave, J. We are therefore unable in the present case to accept the law on this point as enunciated bj- Lopes, L. J., in deference to the two latest decisions. But assuming delivery to be necessary in the case of the gift of an ordinary chattel, two questions would remain for consideration in the present case — the first, whether the undivided fourth part of the horse admits of delivery, or whether on the other hand it is to be regarded as incorporeal and incapable of tradition ; the other, whether the letter written by Benzon to Yates was either a constructive delivery of this undivided fourth part of the horse, or an act perfecting the gift of this incorporeal part so far as the nature of the subject-matter of the gift admits.^ On these points we do not tliink it needful to express any decided opinion, because in our judgment what took place between Benzon and Cochrane before Benzon executed the bill of sale to Coch- rane, constituted the latter a trustee for Moore of one-fourth of the horse Kilworth. Another objection to Cochrane's title was based on the bill of sale, which bore date July 26, 1888, and stated the consideration as a sum of 7,o7ol. then owing by Benzon to Cochrane, and of the further sum of 2,425?., then paid by Cochrane to Benzon, making together a sum of 10,000Z. ; whereas in fact at the date of the bill of sale Benzone was only indebted to Cochrane on two promissory notes then current and payable respectively in August and September, and for sums amount- ing together to 8,300?. It is said that by an agreement arrived at at the time, this 8.300Z. due infuturo was to be taken as between the par- ties as represented by the sum of 7,575Z. ; but if so, this agreement should in our opinion have been stated in the bill of sale, and we are therefore of opinion that the document was void as not truly stating the consideration for which it was given. For these reasons we are of opinion that this appeal should be dis- missed with costs. LoED EsHER, M. R. In my opinion, it always was the law of Eng- suggesting that sufficient weight was not given to the fact of acceptance by the donee of the gift. He certainly cites authorities of weight upon the subject." Per Williams, J., in Martin v. Reid, 31 L. J. n. s. C. P. 126, 127. 1 See Mc Willie r. Van Vacter, 35 Miss. 428. — E0. 2 See Green v. Langdon, 28 Mich. 221. — Ed. COCHRANE V. MOORE. 143 land that an owner of a chattel could transfer his ownership thereof to another person b^- wa^' of exchange or barter, or by wa3- of bargain and sale for a consideration, or by way of and as a mere gift, or by will. Once conclude that such was always the law, and it follows that it is the common law. That law could not and cannot be altered by mere judicial decision, but only by Act of ParHament. The authority of any judicial decision to the contrary would be overruled at any time, however remote, by a competent Court. But each of the above propositions is a fundamental proposition of law, i. e., a proposition which is not evidence of some other proposition which has to be proved, but a proposition the existence of whicli — i.e., the facts necessary to constitute which — is to be proved by evidence. The moment those facts are proved the proposition of law is proved, to which the legal tribunal will give effect. Although no Court can properly alter such a fundamental proposition, the amount or nature of the evidence which will satisfy a Court of the existence of such a proposition, as applica- ble to a particular case, maj' vary, and has varied, at different epochs. I have no doubt that in every one of the propositions above enumer- ated, unless it be in the case of a gift by will, there was a time when, as part of the evidence of the existence of the proposition in a particu- lar case, the Courts alwa3-s required that there should have been an actual delivery of the chattel in question. Though there was proof of a contract for good consideration, in a form which would now pass the property in a chattel without deliverj-, proof of actual deliver}- was re- quired. Though the transfer was contained in a deed, proof of actual delivery was required. Equally the statement that one had declared in mere writing or in words that he did then, at the moment, transfer, without consideration, his chattel to another, and that the other did at the same moment state in writing or in words that he accepted such transfer, was not acted upon bj- the Courts as proof of a gift executed, without proof also of an actual deliver}-. The evidence required in all cases was not complete without proof of an actual deliver}-. But in some of the cases the Courts undoubtedly do not now require proof of an actual delivery. They do not require that piece of evidence. They do not in the case of a transfer by deed, or in the case of a transfer by a contract for good consideration, showing in its terms an intention that the ownership should pass at once before or without immediate deliver}-. If I thought that there was not a difference between those cases and the case of what has been called a gift in words by the donor, and an acceptance in words by the donee of a chattel, I should be strongly inclined to think that, even though the Courts would have required in such case proof of an actual delivery, up to and including the case of Irons v. Smallpiece, 2 B. & A. 551, the Courts might now in such case, as former Courts did in the other cases, be satisfied by other evidence of the gift by the one and the acceptance of the gift by the other, which are the facts which constitute the proposition of a transfer of ownership of a chattel by way of and as a gift. 144 COCHRANE V. MOOEE. Up to the time of Irons v. Smallpiece, 2 B. & A. 551, and after- wards, I have no doubt the Courts did require proof of an actual de- livery in such a case. Upon long consideration, I have come to the conclusion that actual deliverj- in the case of a "gift" is more than evidence of the existence of the proposition of law which constitutes a gift, and I have come to the conclusion that it is a part of the proposi- tion itself. It is one of the facts which constitute the proposition that a gift has been made. It is not a piece of evidence to prove the exist- ence of the proposition ; it is a necessary part of the proposition, and, as such, is one of the facts to be proved bj' evidence. The proposition is not — that the one party has agreed or promised to give, and that the other party has agreed or promised to accept. In that case, it is not doubted but that the ownership is not changed until a subsequent actual delivery. The proposition before the Court on a question of gift or not is — that the one gave and the other accepted. The transac- tion described in the proposition is a transaction begun and completed at once. It is a transaction consisting of two contemporaneous acts, which at once complete the transaction, so that there is nothing more to be done by either party. The act done hy the one is that he gives ; the act done by the other is that he accepts. These contemporaneous acts being done, neither party has anj-thing more to do. The one can- not give, according to the ordinary meaning of the word, without giv- ing ; the other cannot accept then and there such a giving without then and there receiving the thing given. After these two things done, the donor could not get possession of the chattel without bringing an action to force the donee to give it back. Short of these things being done, the donee could not get possession without bringing an action against the donor to force him to give him the thing. But if we are to force him to give, it cannot be said that he has given. Suppose the propos- ing donor offers the thing saying, " I give j'ou this thing — take it" ; and the other says, " No, I will not take it now ; I will take it to-mor- row." I think the proposing donor could not in the meantime say correctly to a third person, " I gave this just now to my son or my friend." The answer of the third person would (I think rightly) be : " You cannot say j'ou gave it him just now ; j'ou have it now in your hand." All j'ou can say is: " That you are going to give it him to- morrow, if then he will take it." I have come to the conclusion that in ordinary English language, and in legal effect, there cannot be a " gift" without a giving and taking. The giving and taking are the two contemporaneous reciprocal acts which constitute a "gift." They are a necessary part of the proposition that thei-e has been a " gift." They are not evidence to prove that there has been a gift, but facts to be proved to constitute the proposition that there has been a gift. That being so, the necessity of their existence cannot be altered unless by Act of Parliament. For these reasons, I think that the decision in Irons V. Smallpiece, 2 B. & A. 551, cannot be departed from, and I cannot agree with the decisions, which have been cited to us, of Pollock, B., and Cave, J. INCOKPOEEAL PEESONAL PEOPBETY. 145 I think, therefore, that we cannot agree with the main reason given by Lopes, L. J., for his decision in the present case, which he gave because he thought that, sitting as a judge of the Queen's Bench Divi- sion, he ouglit to follow the later decisions. His own opinion was in favor of maintaining Irons v. Smallpiece, 2 B. & A. 551. But I do entirely agree with what I understand was anotiier ground on which he was prepared to decide this case, and which he found, as a fact, ex- isted in this case, namelj', that the deed on which the claimant's case rested was obtained bj' a fraudulent misrepresentation, and was repu- diated bj' the giver of it as soon as he discovered the fraud. For this reason, and the others mentioned by my brother Fry, I think the appeal must be dismissed. I wish to say that I am not pre- pared to differ in any respect from the judgment of my learned brothers ; but I wish to add my own particular reason. Appeal dismissed?- Note. — Incorporeal Persokal Pkopertt. Common Law. Any incorporeal personal property, Euch as a debt, is commonly called a chose in action, though the term was originally, and now often is, used in a narrower sense. For the various meanings of chose in action and the things held to have been included in tiie term, see Warren, Choses in Action, 1-26. Incorporeal personal property is not transferable at common law. For the reasons given for this, see Warren, 31, 32. Annuities were, however, assignable, even under the ancient law. See Baler v. Brook, Dyer, 65 a ; Mary York v. Twine, Cro. Jac. 78 ; Co. Lit. 144 b, Hargrave's note; Gerrard v. Boden, Hetl. 80; Macleod, Banking (5th ed.), 219. And as to many kinds of obligations, if the King assigned them, his assignee could sue in his own name, and if they were assigned to the King, the King could sue in liis own name. Warren, 34 et seq. ; Miles v. Williams, 1 P. Wms. 249, 252. And it seems that this prerogative exists in the government of the United States. U. S. V. Buford, 3 Pet. 12, 30; U. S. v. White, 2 Hill, 69, 63. At more or less recent dates various Important kinds of incorporeal personal property have been made assignable either by statutes or by decisions of the courts without the aid of statute. Among these are Bills of Exchange and Promissory Notes, Shares in the Stock of Corporations, Patent Eights and Copyriglits. Of late years, in many jurisdictions, incorporeal personal property generally has been made trans- ferable. Warren, 119 (before the Judicature Act), 140 (after that Act) ; 1 Stimson, Am. Stat. Law, §§ 4031-4038. The law as to the assignability or non-assignability of incorporeal personal rights is generally treated together with the law governing the creation of those rights. Thus, treatises and lectures on Bills and Notes commonly discuss not only the making but the transfer of the rights created by those instruments. The passing of incorporeal personal property on the death or on the bankruptcy and insolvency of the owner is dealt with under Wills and Administration and under Bankruptcy, respectively. Equity. Legal rights In incorporeal personal property have always been assign- able in equity, either by compelling the assignee to sue at law in the assignor's 1 See Winter v. Winter, 4 L. T. N. s. 639, and Wing v. Merchant, 57 Me. 383 (ct. Kilpin V. Ratley, [1892] 1 Q. B. 582) ; Poullain v. PouUain, 79 Ga. 11, 19; Miller v. Le Piere, 136 Mass. 20 ; Doering v. Kenamore, 86 Mo. 688 ; Picot v. Sanderson, 1 Dev. 309 (but cf. Bromley v. Brmton, L. E. 6 Eq. 275) ; Hillebrant v. Brewer, 6 Tex. 45 — Ed. 10 146 TEANSPEES AGAINST PUBLIC POLICY. name or by other appropriate methods ; and so rights which are exclusively equi- table are assignable in equity. Warren, 46 et seg. Transfers against Pcblic Polict. Some rights, however, cannot be assigned either at law or in equity. Public policy forbids their transfer. Chief among these are : Future salaries of public officers. Barwick v. Reade, 1 H. Bl. 627. Flarty v. Odium, 3 T. E. 681. Lidderdale v. Montrose, 4 T. E. 248. Palmer v. Bate, 2 Brod. & B. 673. Cooper v. Reilly, 2 Sim. 660. Wells v. Foster, 8 M. & W. 149. Schloss v. Hewlett, 81 Ala. 266. Bangs v. Dunn, 66 Gal. 72. Field v. Chiplei/, 79 Ky. 260. Roeller v. Ames, 33 Minn. 182. State v. Williamson, 118 Mo. 146. Shwenk v. Wif'ckoff, 40 N. J. Eq. 560. Bliss v. Lawrence, 68 N. T. 442. Bowery Nat. Bank v. WiUon, 122 N. Y. 478. Nat. Bank of El Paso r. Fink, 86 Tex. 303. Shannon V. Bruner, 36 Fed. E. 147. Contra, State v. Eastings, 15 Wis. 75; but this case has been disapproved in many of the last-mentioned authorities. In the leading case of Bliss V. Lawrence, supra, it is said that the question of public policy was not consid- ered in Brackeit v. Blake, 7 Met. 335, and Mulhall v. Qainn, 1 Gray, 106. In Flarty v. Odium, supra, Buller, J., intimated that the pay of a public officer, actually due, might be assigned. But in Sandwich Mfg. Co. v. Krake, 66 Minn. 110, it was held that the wages of a fireman, although due, could not be reached by pro- ceedings supplementary to execution. Sed qu. When, however, the service is not a public one, the compensation may be as- signed. Grenfell y.Dean and Canons of Windsor, 2 Beav. 644. In re Mirams, [1891] 1 Q. B. 594. Contra, Matter of Worthington, 141 N. Y. 9, where it was held that an executor cannot assign his commissions in advance of their adjustment and payment. Pensions. In Wells v. Foster, supra, Babon Parke drew a distinction between a pension given entirely as a compensation for past services, and one not exclusively for past services, but as a consideration for some continuing duty or service; tlie former may be assigned, the latter not. This distinction has been generally followed. Arbuthnot v. Norton, 5 Moo. P. C. 219. Spooner v. Payne, 1 De G., M. & G. 383. Dent V. Dent, L. E. 1 P. & D. 366. Wilcock v. Terrell, 3 Ex. Div. 323. Lucas y. Harris, 18 Q. B. D. 127, 135. See the remarks of Lord Langdalb, M. E.,in Grenfell V. Dean and Canons of Windsor, supra, on Davis v. Marlborough, 1 Svvanst, 79. By statute, assignments of pensions are prohibited, and pensions are exempted from seizure by legal process. U. S. E. S. §§ 4745, 4747 ; 47 G. III. sess. 2, c. 25; 44 & 45 Vict. c. 58, § 141. Such provisions protect the pension only while it is in transit to, and not after it has reached, tlie pensioner. See Rozelte v. Rhodes, 116 Pa. 129; Crowe V. Price, 22 Q. B. D. 429. State statutes sometimes exempt from seizure not only pensions, but the property in which they are invested. Diamond v. Palmer, 79 Iowa, 578. U. S. E. S. § 3477 makes null all transfers of claims upon the United States. In U. S. V. Gillis, 95 U. S. 407, it was said that the language of this section was broad enough to cover claims of every kind. In Erwin v. U. S., 97 U. S. 392, it was said this law applies only to voluntary assignments, and not to the passing of claims to heirs, devisees, or assignees in bankruptcy. Nor does it apply to a voluntary assign- ment of all property by an insolvent for the benefit of his creditors. Goodman v. Niblack, 102 U. S. 556. See also Forrest v. Price, 52 N. J. Eq. 16, 27. Alimony. In Re Robinson, 27 Ch. D. 160, the Court of Appeal was inclined to think that alimony was not alienable. And see remarks of Cave, J., in Linton v. Linton, 15 Q. B. D. 239, 241. Fellowship. The income of a fellowship is assignable in equity. Feistel v. King's College, Cambridge, 10 Beav 491. In Bank v. Morrow, 99 Tenn. 527, it was held that the right to nominate a scholar to be supported and taught at the expense of a college is^not such property as may be taken and sold for debts. Claims for Torts. Claim for a tort to the person is not assignable before judg- ment, not even after verdict. Rice v. Stone, 1 Allen, 566. People v. Tioga Common Pleas, 19 Wend. 73. In People v. Tioga Common Pleas, ubi supra, it was suggested that although an at- tempted assignment of a claim for a tort to the person was void as an assignment, it was good as a contract, and would give a right of action for damages against the CLAIMS FOR TORTS. 147 assignor if he afterwards released the claim to the wrongdoer. But see 2 L, C. Eq. (4tli Am. ed.) 1627, 1028. See Williams v. Ingersoll, 89 N. Y. 508. ' In many jurisdictions the subject is affected by statute. The rule is sometimes stated more broadly, prohibiting the assignment of any claim in tort. Gardner v. Adams, 12 Wend. 296. But in general claims for injuries to property may be assigned. Comegys v. Vasse, 1 Pet. 193, 213. Chicago, ^c. R. R. Co. v. Wolcott, 141 Ind. 267. North v. Turner, 9 S. & R. 244. In England a distinction has been drawn between the assignment of a bare right to bring a bill in equity to set aside a transaction for fraud, Prosser v. Edmonds, 1 Y. & C. Ex. 481 (see Bill v. Boyle, L. R. 4 Eq. 260), and a transfer of the interest of the defrauded party in property which carries the incidental right to sue. Dickinson v. Biirrell, L. R. 1 Eq. 837. Prosser v. Edmonds was approved in Marshall v. Means, 12 Ga. 61 ; Norton v. Tuttle, 60 111. 130; Morrison v. Deaderick, 10 Humph. 342; Milwaukee, ^■c. R. R. Co. V. Milwaukee, ^c. R. R. Co., 20 Wis. 174; and accord, are Sanborn v. Doe, 92 Cal. 152 ; Brush v. Sweet, 38 Mich. 574. But see Clews v. Traer, 57 Iowa, 459. In Smith V. Thompson, 94 Mich. 381, it was held that the right to bring an action on the case for fraud was not assignable. It is often said that the test of assignability is whether or not the claim is one which will survive to the legal representative of the injured party on his death (post, Vol. IV. Bk. VII.) ; e.g. in Comegys v. Vasse, ubi sup. Grant v. Ludlow, 8 Ohio St. 1, 37. North Chicago, ^-c. R. R. Co. v. Ackley, 171 111. 100, 105, 115. Chicago, ^c. R. R. Co. V. Wolcott, ubi sup. Final v. Backus, 18 Mich. 218. CHAPTER IV. POSSESSION. Note. — The authorities collected thus far have been intended to illustrate the acquisition and transfer of ownership. In this chapter the rights which may be had in personal property by persons other than the owner are dealt with. SECTION I. BAILMENT. A. Nature and Acquisition of Lien. CHAPMAN V. ALLEN. King's Bench. 1632. [RepoHed Cro. Car. 271.] Action of trover of five kine. Upon not guilty pleaded, a special verdict was found, that one Belgrave was possessed of those five kine, and put them to pasturage with the defendant, and agreed to pay to him twelve pence for every cow weekly as long as they remained with him at pasture ; and that afterwards Belgrave sold them to the plain- tiff, and he required them of the defendant, who refused to deliver them to the plaintiff, unless he would pay for the pasturage of them for the time that they had been with him, which amounted to ten pounds : afterwards one Foster paying him the said ten pounds by the appointment of Belgrave, he delivered the five beasts to Foster; and if super totam materiam he be guilty, they find for the plaintiff, and damages twent3--five pounds ; and if, &c. then for the defendant. Jones, Justice, and mj-self (absentibus cceteris Justiciariorum), con- ceived, that this denial upon demand, and delivery of them to Foster, was a conversion, and that he may not detain the cattle against him who bought them until the ten pounds be paid, but is inforced to have lus action against him who put them to pasturage. And it is not like to the cases of an innkeeper or taylor; they may retain the horse or garment delivered them until they be satisfied, 1 Com. Dig. 211, but not when one receives horses or kine or other cattle to pasturage, pay- ing for them a weekly sum, unless there be such an agreement betwixt them. Whereupon rule was given, that judgment should be entered for the plaintiff. KRTJGER V. WILCOX. 149 KRUGER V. WILCOX. Chancery. 1755. [Reported Ambl. 252.] This cause coming on for further directions, the case was : — Mico was general agent in England for "Watkins, who was a merchant abroad, and at different times had received considerable consignments of goods, and upon the balance of account was in disburse. After- wards Watkins consigned to him a parcel of logwood, for which he paid the charges, &c. Watkins coming to England, Mico said, as he was here, he might dispose of the goods himself: Watkins accordingly employs a broker to sell them, and Mico tells the broker, that Watkins intends to sell them himself, to save commission ; and Mico gave orders to the warehouseman, to deliver the goods to that broker. The broker sells them, and makes out bills of parcels to Watkins; and opens an account with Watkins, but takes no notice of Mico. After the goods were sold, Mico begins to suspect Watkins' circum- stances, and resorts to the broker, to know whether he has opened an account with Watkins. The great question, in the cause was. Supposing Mico had a lien on these goods and produce, so as to be entitled to retain them for the balance of the account ; whether he has not parted with that right? After argument at the bar. Lord Chancellor adjourned the cause to the 27th, and desired the four merchants, who were examined in the cause on the different sides, might attend in court, in order to be con- sulted by him upon the point. And accordinglj' this day they attended, viz., Mr, Alderman Baker and Bethell, Mr. Willetts and Fonereau ; and after having asked them several questions, upon the custom and usage of merchants relating to the matter in doubt, his Lordship gave his opinion with great clearness, as follows : — LoKD Hardwicke, Chancellor. This is a case of bankruptc}', in which this court always inclines to equality : j^et if any person has a specific lien, or a special property in goods, which is clear and plain, it shall be reserved to him, notwithstanding the bankruptcy. Question is, whether in this case, Mico is intitled to a specific lien, and consequentlj' a preference in point of satisfaction out of the money arising by sale of these goods ? Two things are to be considered : — 1st. What lien a factor gains on goods consigned to him by a mer- chant abroad? and whether Mico gained such lien in this case? 2d. If he did, whether he has done anything to part with it? As to 1st. All the four merchants, both in their examination in the cause, and now in court, agree, that if there is a course of dealings and general account between the merchant and factor, and a balance is due to the factor, he may retain the ship and goods, or produce, for such 150 KEUGER V. "WILCOX. balance of the general account, as well as for the charges, cnstoms, &c., paid on the account of the particular cargo. They consider it as an interest in the specific things, and make them articles in the general account. Whether this was ever allowed in trover at law, where the goods were turned into money, I cannot say ; nor can I find any such case. 1 have no doubt, it would be so in this court, if the goods re- mained in specie ; nor do I doubt of its being so, where they are turned into money. To the 2d question. I am of opinion Mico has parted with his right, and that it is for the benefit of trade to saj- he has. All the merchants agree, that although a factor may retain for the balance of an account, j-et if the merchant comes over, and the factor delivers the goods up to him, by his parting with the possession he parts with the specific lien. Such is the law of the land as to retainers in other cases. Question. Whether this case amounts to the delivery up of the log- wood to the principal? I think it does. Mico suffers Watkins to employ a broker ; and tells the broker, that Watkins intends to sell them himself, to save commission. Mico gives orders to the ware- houseman to deliver the goods to the broker. The broker sells them, and makes out bills of parcels to Watkins, and takes no notice of Mico. It amounts to the same thing, as if Mico had delivered the goods in specie to Watkins. It is safer for trade to hold it in this manner, than otherwise ; for by that manner of acting, Mico gave Watkins a credit with other people (for the sale was public, and by that the goods appeared to be Wat- kins'), which would not have been the case if Mico had retained for the balance of his account. It is better to allow that which is the public notorious transaction, than that which is secret. Suppose an action had been brought by Watkins against the broker, for money had and received, the broker could not have defended himself bj' saying, So much is due to Mico. The merchants have admitted, that the specific lien as to the customs, charges, &c., does continue; even the law would have allowed it, if the goods had remained in specie ; the goods being sold, makes the case stronger. But that is not now before me, being determined by his late Honor the Master of the Eolls, and acquiesced iu by the parties.^ 1 "It was certainly doubtful, before the case of Krutzer and Wilcocks, 'whether a factor had a lien, and could retain for the balance of his general account.'" Per Lord Mansfield, C. J., in Green v. Farmer, i Burr. 2214, 2218. See Houghton v. Matthews, 3 B. & P. 485; Mc Graft v. Riigee, 60 Wis. 406. A factor may sell to realize the amount of his debt, sometimes ^vcn against the orders of his principal. Parker v. Brancker, 22 Pick. 40; 8. c. Wambaugh, Cas. Agency, 887. — Ed. IN KE WITT. 151 NAYLOR V. MANGLES. Nisi Peius. 1794. [Reported 1 Esp. 109.] Assumpsit for money had and received. The plaintiff had purchased from one Boyne twenty-five hogsheads of sugars then lying in the defendant's warehouses, who was a wharfinger. Boyne was in debt to the defendant to the amount of £167, part of which only was for the charges of these twenty-five hogsheads of sugar, the remainder was for the balance of a general account, for which the defendant claimed a lien, and refused to deliver them to the plaintiffs till the whole sum was paid. The plaintiffs paid him the whole monej', and then brought this action to recover it back. The whole question turned upon the point whether a wharfinger had a lien for the balance of a general account upon the goods in his possession. The counsel for the defendant said that it had been decided in three different cases that they had, and called witnesses to prove it, with which the javy seemed completely satisfied. Lord Kenton said, liens were either bj- common law, usage, or agree- ment. Liens bj' common law were given where a party was obliged by law to receive goods, etc., in which case, as the law imposed the bur- den, it also gave him the power of retaining, for his indemnity. This was the case of innkeepers, who had by law such a lien. That a lien from usage was matter of evidence. TUe usage in the present case had been proved so often, he said it should be CQpsidered as a settled point that wharfingers had the lien contended for.^ Bearcroft, Shepherd, and Park, for the plaintiff. Erskine, for the defendant. In ee WITT. Chancekt Division. 1876. \nepmted 2 Ch. D. 489.] This was an appeal from a decision of Mr. Registrar Pepys, acting as Chief Judge in Bankruptcy. G-. A. Witt & Co., general merchants, filed a liquidation petition, under which J. Shubrook was appointed trustee. Perrott & Perrott were packers, and the debtors had been in the habit of employing them to pack goods for them for shipment abroad. The goods, » See Holderness t. Collinson, 7 B. & C. 212. — Ed. 152 IN KE "WITT. when purchased by the debtors, were sent to the warehouse of Perrott & Perrott, where they were warehoused, packed, and sent off for shipment as directed by the debtors. At the commence- ment of the liquidation, Perrott & Perrott had in their warehouse various parcels of goods belonging to the debtors, which had been sent to them at different times, and there was due to them from the debtors the sum of £28 19s. Id., being the amount of their charges for packing other goods for the debtors. The trustee re- quested Perrott & Perrott to pack all the goods in one case and forward them to the docks for shipment. This was done, and their charge for doing it was £2 Is. They claimed to be entitled to a general lien on the goods, and refused to deliver them up except upon payment by the trustee, not only of the £2 Is., but also of the £28 19s. Id. The trustee tendered the £2 Is., and demanded delivery of the goods, which was refused. He then applied to the court for an order that Perrott & Perrott should deliver up the goods on payment of the £2 Is. Affidavits were made by two persons engaged in the trade of packers to the effect that by the custom of trade a packer has a general lien upon the goods of his customers in his possession for the amount of his charges, not only in respect of the particular goods, but also in respect of any other goods of the customer. In opposition to this evidence, one of the debtors made an aflBdavit in which he said- that neither he nor his co-debtor knew of any such alleged custom of trade. The Registrar was of opinion that the lien claimed was established, and he dismissed the trustee's application with costs. The trustee appealed. Davey, Q. C, and F. 0. Crump, for the appellant. The Registrar founded his decision on Ex parte Deeze, I Atk. 228. In many text- books, no doubt, that case has been treated as showing that packers have a general lien, and the marginal note is to that effect. But when the case is looked at, it is evident that the marginal note is wrong, and that the decision was based upon the mutual credit clause. JEx parte Ockenden, 1 Atk. 235, and Rose v. Bart, 8 Taunt. 499, show that it was so. To establish a general lien bj' implication, it must be shown, either that its existence was actually known to the person against whom it is claimed, or that it exists by virtue of a custom of trade so widelj' known that the court will impute knowledge of it to him. Holderness v. ColUnson, 7 B. & C. 212. The law does not favor general lien. BocJc v. Gorrissen, 30 L. J. (Ch.) 39. In the most recent text-books on mercantile law, packers are not mentioned among the persons who have a general lien. [i>e Qex, Q. C, for Perrott & Co., referred to Savill v. Barchard, 4 Esp. 53, in which Lord Kcnyon said that packers had a general lien, and to Green v. Farmer, 4 Burr. 2214, in which Lord Mansfield said it was settled in 1755 that a packer, being in the nature of a factor, would be entitled to a lien.] IN KE WITT. 163 That was because packers then often acted as factors, making advances to their principals, whlcli they do not do now. In the recent case of Achard v. Ring, 31 L. T. (N. S.) 647, although an alleged custom had been in a prior case found judicially by the Court of Queen's Bench, yet, on the evidence, the jury, in accordance with the direction of Cockburn, L. C. J., found that the alleged custom did not exist. J)e Qex, Q. C, and Brough, for the respondents, were not called on. James, L. J. I think it is too late now to attempt to set aside that which has been considered law for so manj' j-ears, and I must say I do not see the injustice of it. I agree with what Lord Hardwicke said in Ex parte Deeze, 1 Atk. 228 ; it seems to me to be very good sense and justice. A man has goods in his possession which he has received in the ordinary course of trading, and he is asked to deliver them up, and at the same time he has a claim against the person who asks him to deliver them up. I think he has a perfect right to keep them. Under the Judicature Acts, I think, if an action were brought for the goods in trover or detinue, by means of a counterclaim the whole matter might be settled in one action. I certainly think this law with regard to lien is a verj' proper one ; it has been settled for a great many years, and I do not see why we should endeavor to limit the eflfect of the decisions. The Registrar's order must be affirmed. Mellish, L. J. I am of the same opinion. From what Lord Mans- field said in Green v. Farmer, 4 Burr. 2214, and what was said by Lord Hardwicke in Ex parte Deeze, it seems to me clear that in the middle of the last century it was settled that a packer had a general lien. At that time packers were to a certain extent considered as factors ; they used to make advances to their customers. But, it having been established that packers had a general lien at that time, I cannot think the circumstance that they do not now so frequently as the}- did then make advances should be sufficient to take away their right of general lien. It having been established that they had such a lien then, there can be little doubt that it would continue. Therefore, in the present case, if a single affidavit of the custom had been produced, that would have been sufficient evidence, if any evidence is required at all. If the existence of this lien is ever seriously to be contested, and it is sought to prove that by the present usage of trade packers have not a general lien, it must be done in quite a different way from merely bringing the customer himself to say that he never heard of the general lien. I think the determination of the Registrar was right. Baggallat, J. A. I am of the same opinion. 154 BUSHFOETH V. HADPIELD. EUSHFOETH v. HADFIELD. King's Bench. 1805. [Reported 7 East, 224.] This was an action of trover to recover the value of a quantity of cloth which the bankrupts had sent by the defendants as common car- riers, who claimed a lien upon it for their general balance due to them as such carriers for other goods before carried by them for the banli- rupts. The plaintiffs had tendered the carriage price of the particular goods in dispute, and the sole question was, whether the defendants, as common carriers, had a lien for tlieir general balance. On the first trial a verdict was found for the defendants, which this court thought was not sustained by the evidence, and therefore they granted a new trial. 6 East, 519. The cause was again tried at the last assizes at York, before Chambre, J., when the defendants' book-keepers in Lon- don, at Stamford, and at Haddersfield, swore to their practice to retain goods for their general balance, and particularized one instance in De- cember, 1799, where an action was brought, which being referred, was decided on another point ; a second in May, 1800, where there was no bankruptcy ; a third in May, 1803, where the bankrupt's assignee de- manded the goods but afterwards paid the balance ; a fourth and a fifth in the same j-ear, when the individuals paid the balance, but no bank- ruptcy intervened ; and a sixth instance, of the like sort as the last, in 1804. In addition to these, Welch, a carrier from Manchester and Leeds, deposed to an instance of retention of goods for the general bal- ance three j-ears back, where a bankruptcj' intervened, and the assignees disputed the paj-ment at first, but afterwards paid the balance ; and to two other instances of goods sent to Glasgow; one where the carriage of the particular goods was £3 and the general balance £20 ; another where the carriage was a few shillings and the general balance £8 ; in both instances bankruptcies intervened, and the assignees paid the general balance. Hanley, a Northallerton carrier, spoke to two instances of retainer of goods, twelve and thirteen j'ears ago, till the individuals paid the general balance; but neither were bankrupts. The book- keeper of Pickford, a carrier from London to Liverpool, particularized an instance of retaining for the general balance in 1792, where the ven- dee became bankrupt ; but there the vendor stopped in transitu, and he paid the general balance at the end of two months ; a second similar instance in the same year; a third instance in 1795, where the senders became bankrupts, and their general balance was paid bj' the vendees ; a fourth in 1795, where the goods of an individual, not bankrupt, were detained several years, but no account how the matter was finally set- tled ; and two other like instances in 1794 and 1795. And Clark, a Leicester carrier, also mentioned two instances, one in 1775, the other afterwards, of retaining the goods of solvent individuals till they paid EUSHFORTEI V. HAUFIELD. 155 their general balance. All these carriers, who had followed their occu- pation from twenty to thirty years and upwards, deposed generally to their custom of retaining goods for their general balance in other in- stances as well as in those particularized. It was left to the jury to decide whether the usage were so general as to warrant them in pre- suming that the bankrupts knew it, and understood that they were con- tracting with the defendants in conformity to it; in which case they were to find for the defendants; otherwise they were told that the general rule of law would entitle the plaintiffs to a verdict. On this direction the jury found for the plaintiffs; which was moved to be set aside in last Michaelmas term, as a verdict against all tlie evidence. CocJcell, Serjt., now showed cause against the rule. Park and Wood, contra. LoED Ellenborgugh, C. J. It is too much to say that there has been a general acquiescence in this claim of the carriers since 1775, merely because there was a particular instance of it at that time. Other instances were onl3' abont ten or twelve years back, and several of them of very recent date. The question, however, results to this, What was the particular contract of these parties ? And as the evi- dence is silent as to any express agreement between them, it must be collected either from the mode of dealing before practised between the same parties, or from the general dealings of other persons engaged in the same emploj-ment, of such notoriety as that they might fairly be presumed to be known to the bankrupt at the time of his dealing with the defendants, from whence the inference was to be drawn that these parties dealt upon the same footing as all others did, with reference to tlie known usage of the trade. But at least it must be admitted that the claim now set up by the carriers is against the general law of the land, and the proof of it is therefore to be regarded with jealoasy- In many cases it would happen that parties would be glad to pay small sums due for the carriage of former goods, rather than incur the risk of a great loss by the detention of goods of value. Much of the evi- dence is of that description. Other instances, again, were in the case of solvent persons, who were at all events liable to answer for their general balance. And little or no stress could be laid on some of the more recent instances not brought home to the knowledge of the bank- rupt at the time. Most of the evidence therefore is open to observa- tion. If indeed there had been evidence of prior dealings between tliese parties upon the footing of such an extended lien, that would have furnished good evidence for the jury to have found that thej' con- tinued to deal upon the same terms. But the question for the jury here was, whether the evidence of a usage for the carriers to retain for their balance were so general as that the bankrupt must be taken to have known and acted upon it? And they have in effect found either that the bankrupt knew of no such usage as that which was given in evi- dence, or knowing, did not adopt it. And growing liens are -alwaj-s to be looked at with jealousy, and require stronger proof. They are 156 EUSHFOKTH V. HADFIELD. encroachments upon the common law. If they are encouraged, the practice will be continually extending to other traders and other mat- ters. The farrier will be claiming a lien upon a horse sent to him to be shod. Carriages and other things which require frequent repair will be detained on the same claim ; and there is no saying where it is to stop. It is not for the convenience of the public that these liens should be extended further than they are already established by law. But if an}' particular inconvenience arise in the course of trade, the parties maj', if they think proper, stipulate with their customers for the intro- duction of such a lien into their dealings. But in the absence of any evidence of that sort to affect the bankrupt, I think the jury have done right in negativing the lien claimed by the defendants on the score of general usage. Grose, J. This lien is attempted to be set up by the defendants, not upon the ground of any particular contract or previous transactions between them and the bankrupt, but on the ground of previous transac- tions between them and other parties, and between other carriers and their customers. And it is admitted that the question upon this evi- dence was properly left to the jury, that they might find a verdict for the defendants, if the usage for the carriers to retain for their balance of account were so general as that they must conclude that these par- ties contracted with the knowledge and adoption of such usage. The jury have found in the negative. And I take it to be sound law, that no such lien can exist except by the contract of the parties expressed or implied. Lawrence, J. The most which can be said on the part of the de- fendants is, that there was evidence which might have warranted the jury to find the other waj', but it was for them to decide. This is a point which the carriers need not be so solicitous to establish. It is agreed that they have a lien at common law for the carriage price of each particular article. If then it be not convenient for the consignee to pay for the carriage of the specific goods at the time of deliverj', it is very easy for the carriers to stipulate that they shall have a lien for their balance upon any other goods which they may thereafter carry for him. It is not fit to encourage persons to set up liens contrary to law. The carriers' convenience certainl}' does not require any exten- sion of the law ; for thej' have already a lien for the carriage price of the particular goods, and if they choose voluntarily to part with that, without such a stipulation as I have mentioned, there is no reason for giving them a more extensive lien in the place of that which they were entitled to. I should not be sorry, therefore, if it were found generally that they have no such lien as that now claimed upon the ground of general usage. Le Blanc, J. This is a case where a jury might well be jealous of a general lien attempted to be set up against the policy of the common law, which has given to carriers only a lien /or the carriage price of the particular goods. The party, therefore, who sets up such a claim ought JUDSON V. ETHERIDGB. 157 to make out a verj' strong case. But upon weighing the evidence which was given at the trial, I do not think that this is a case in which the court are called upon to hold out any encouragement to the claim set up, by overturning what the jury have done, after having the whole matter properly submitted to them. Bule discharged} BEVAN V. WATERS. Nisi Prids. 1828. [Reported Mood. ^ M. 235.] Assumpsit for goods sold and delivered, and work and labor. The question in the cause was, whether the defendant was liable to the plaintiff for the training of a race-horse, which the defendant had bought of a third person, whilst in the plaintiff's possession, and which had been given up to the defendant under an agreement, as was con- tended, to pay for the training, in consideration of the abandonment of the plaintiff's lien. The defendant contended that there was no lien, and the detention was altogether wrongful, under the authority of Wal- lace V. Woodgate, R. & M. N. P. C. 193. Wilde, Seijeant, and R. V. Michards, for the plaintiff. Jones, Serjeant, for the defendant. Best, C. J. It was certainly held in that case, on the authoritj' of Yorke v. Grenaugh, 2 Ld. Raym. 866, that a livery-stable keeper has no lien ; but this case goes farther, and on the principle of the common law, that where the bailee expends labor and skill in the improve- ment of the subject delivered to him, he has a lien for his charge, I think the trainer has a lien for the expense and skill bestowed in bring- ing the horse into condition to run at races. Verdict for the plaintiff .^ JUDSON V. ETHERIDGE. Exchequer. 1833. [Reported 1 Cr. #• M. 743.] Detinue for a gelding. Plea : actio non, because he says that the said gelding, in the said declaration mentioned, was on the day and 1 See Skinner v. Upshaw, 2 Ld. Raym. 752 ; Hurd v. Hartford ^ N. Y. Steamboat Co., 40 Conn. 48; Fuller v. Bradley, 25 Pa. 120; Lane v. Old Colony R. R. Co., 14 Gray, 143; Schneider v. Evans, 25 Wis. 241. —Ed. " Part of the case relating to another point is omitted. Harris y. Woodruff, 124 Mass. 205, accord. See Lord v. Jones, 24 Me. 439. — Ed. 158 JUDSON V. ETHERIDGB. j-ear aforesaid delivered by the plaintiff to the defendant to be stabled and taken care of, and fed and kept by the defendant for the plaintiff for remuneration and reward, to be paid by the plaintiff to the defendant in that behalf. And the defendant in fact further saith, that after- wards, and before and at the time of the commencement of this action, to wit, on the IGth day of March, 1833, in the county aforesaid, tlie plaintiff became and was indebted to the defendant in a large sum of money, to wit, the sum of £10, being a reasonable and fair remuneration and re- ward in that behalf, for and in respect of the defendant having before then stabled and taken care of, and fed and kept, the said gelding for the plaintiff, under and bj- virtue of the said delivery and bailment. And the said defendant in fact further saith, that the said sum of £10 is still due and owing to the defendant. And for which reason he, the defendaut, hath, from the time of the delivery of the said gelding, hitherto detained and still detains the same, as he lawfully maj', for the cause aforesaid. General demurrer and joinder. Mansel, in support of the demurrer. Erie, contra. LoKD Lyndhdrst, C. B. The question is on the sufficiency of the plea. Now, the plea states that tlie horse was delivered by the plaintiff to the defendant, to be stabled and taken care of, and fed and kept by the defendaut for the plaintiff, for remuneration and reward, to be paid b}' the plaintiff to the defendant in that beiialf ; it then states that the plaintiff became indebted to the defendant in the sum of £10 — being a reasonable and fair remuneration and reward — for and in respect of the defendant having stabled and taken care of, and fed and kept the horse under and by virtue of the said delivery and bailment ; and so justifies the detention until that sum should be paid. Upon this plea the question is, whether, on the state of facts disclosed, the defendant has or has not a lien upon the horse ; I am of opinion that he has no lien. The present case is distinguishable from the cases of workmen and artificers, and persons carrying on a particular trade, who have been held to have a lien, bj- virtue of labor performed in the course of their trade, upon chattels bailed to them. Tlie decisions on the subject seem to be all one wa^-. In Chapman v. Allen, it was decided that a person receiving cattle to agist had no lien. In Yorke v. Orenaugh, it was held, not merely* by Lord Chief Justice Holt, but by the whole court in their decision, that a liver^'-stable keeper had no lien. As to the case of Jacobs v. Latour, that, so far from establishing the right of lien, confirms the former decisions; for Lord Chief Justice Best ex- pressly draws the distinction between a trainer, who bestows his skill and labor, and a livery-stable keei)er ; between horses taken in hy a trainer and altered in their value by the application of his skill and labor, and horses standing at liverj- without such alteration. When the case came on before the Court of Common Pleas, that distinction seems to have been supported. It appears to mc, therefoi-e, that the present case is decided hy the concuiTcnce of all the authorities. JACKSON V. CUMMINS. 159 Vatighan, B. I am of opinion, that it is clear, from the authorities on this subject, that the present defendant had no right to detain the horse in question, and consequently that our judgment must be for the plaintiff. BoLLAND, B. In deciding against the right of lien in this case we break in upon no former decisions. Admitting that a trainer has a lien, it must be on the ground that he has done something for the bene- fit and improvement of the animal. ' The doctrine might, perhaps, be extended further so as to embrace the case of a breaker, into whose hands a young horse is placed to be broken in. The breaker makes it a different animal. The chattel is improved by the application of his labor and skill. In the present case it does not appear that anything was to be done to the animal, to improve it or render it a diflferent animal by the application of the skill and labor of the bailee. GuKNET, B., concurred. Judgment for the plaintiff} JACKSON V. CUMMINS. Exchequer. 1839. [Reported 5 M. ^ W. 342.] Trespass for breaking and entering an outhouse and premises be- longing to the plaintiff, and seizing and driving away ten cows, the property' of the plaintiff, and converting and disposing of the same to the defendants' own use, &c. The defendants pleaded, first, not guiltj' ; secondly-, as to taking &c. two of the cows, that the said cows, for the space of eight months before the said time when &c., had been depastured, agisted, and fed by the defendant Charles Cummins for the plaintiff, in and upon certain lands of him the said Charles Cummins, at the request of the plaintiff, for a certain reward and remuneration to be paid the said Charles Cum- mins by the plaintiff, and there was and still is due and owing to the said C. Cummins from the plaintiff the sum of £16 5s., for and in respect of the said agistment of the said two cows ; and that it was agreed between the plaintiff and defendant Charles Cummins, that the said C. Cummins should retain, have, and take and keep the possession of the said two cows so long as the said sum of £16 5s. should remain unpaid; that the said two cows then and at the time of the said agree- ment were in the possession of the said C. Cummins, and so remained until the plaintiff fraudulently, unlawfully, and wrongfull}' took them out of the same as hereinafter mentioned; that afterwards, and after the said agreement, and whilst the said two cows were in the posses- sion of the said C. Cummins under the same, and whilst the said C. 1 Grinnell v. Cook, 3 Hill, 485, accord. — Ed. 160 JACKSON V. CUMMINS. Cummins had a lien upon the same by law and by the agreement afore- said, and just before the said time when &c., the plaintiff wrongfully, unlawfully, and surreptitiously, and contrary' to the said agreement, with force and arms, broke and entered the said close of the said C. Cummins in which the said two cows were depasturing and agisting as aforesaid, and wrongfully, fraudulently, unjustly and unlawfully took, carried, and drove away the same out of the said close of the said C. Cummins, and put and placed the same in the said outhouse and prem- ises in the declaration mentioned, without paying the said sum so agreed to, and then due to the said C. Cummins. The plea concluded with a justification by the defendant Cummins in his own right, and by the other defendants as his servants, in peaceably entering the out- house and premises, in order to retake the cattle, and retaking them accordingly. The plaintiff took issue on the first plea, and to the second replied de injuria. The cause was tried before Parke, B., at the last Assizes for Yorkshire, when it was proved that the cows had been depastured on land belong- ing to the defendant. The jurj' found that there was no such agree- ment as stated in the plea, that the defendant should retain and keep possession of the cows until the amount due for the pasturage was paid, and thereupon found a verdict for the plaintiff, the learned judge re- serving leave to the defendant to move to enter a nonsuit, in case the court should be of opinion that a lien existed at common law for tlie agistment of cattle. Alexander having, in Easter Term last, obtained a rule accordingly. CressweU now showed cause. Alexander, in support of the rule. Parke, B. I am of opinion that this rule ought to be discharged. The first question is, whether it was competent for the defendant, under this plea, which speaks of a lien b^' agreement, to set up a claim for a lien at common law? If it were necessary to decide that question, I should say that I think it was competent for him to do so. The plaintiff, it is true, might have demurred specially to the plea for dupli- city, in setting up two distinct grounds of lien, viz. by force of an agreement, and by the general law ; but as it is, the averment of the agreement for a lien may be rejected, and the claim of lien under the general law supported, should such really exist. I also thinli that, after the recent decision in Owen v. Knight, 4 Bing. N. C. 54 ; 5 Scott, 307, as to the effect of lien in actions of trover, the defendant would have done better to have pleaded that the plaintiff was not possessed of these cows ; which plea would have been supported by proof of the lien, giv- ing to the defendant a special property in them at the time of the tres- pass. It is not, however, necessarj- to decide either of these points, because I think that by the general law no lien exists in the case of agistment. The general rule, as laid down by Best, C. J., in Bevan v. Waters, and by this court in Scarfe v. Morgan, is, that by the general JACKSON V. CUMMIKS. 161 law, in the absence of any special agreement, whenever a party has ex- pended labor and skill in the improvement of a chattel bailed to him, he has a lien upon it. Now, the case of agistment does not fall within that principle, inasmuch as the agister does not confer any additional value on the article, either by the exertion of any skill of his own, or indirectly by means of any instrument in his possession, as was the case with the stallion in Scarf e v. Morgan ; he simply takes in the animal to feed it. In addition to which, we have the express authoritj' of Chapman v. Allen that an agister has no lien; and although possibly that case may have been decided on the special ground that there had been an agreement between the parties, or a conversion of the animal had taken place, still it is also quite possible that it might have proceeded on the more general principle, that no lien can exist in the case of agistment; and it was so understood by this court in Judson v. Mheridge. The analogy, also, of the case of the liver3^-stable keeper, who has no lien by law, furnishes an additional reason why none can exist here : for this is a case of an agistment of milch cows, and, from the very nature of the subject-matter, the owner is to have possession of them during the time of milking; which establishes that it was not intended that the agister was to have the entire possession of the thing bailed ; and there is nothing to show that the owner might not, for that purpose, have taken the animals out of the field wherein they were grazing, if he had thought proper so to do. This claim of lien is therefore inconsistent with the necessary enjoyment of the property by the owner. As to the case of the training groom it is not necessary to say anj-thing, as it has not been formally decided ; for in Jacobs v. JLatour, 5 Bing. 130 ; 2 ]\I. & P. 201, the point was left undetermined. It is true, there is a Nisi Prius decision of Best, C. J., in Bevan v. Waters, that the trainer would have a lien, on the ground of his having expended labor and skill in bringing the animal into condition to run at races; but it does not appear to have been present to the mind of the judge, nor was the usage of training to that effect explained to him, that when horses are delivered for that purpose, the owner has always a right, during the continuance of the process, to take the animal away, for the purpose of running races for plates elsewhere. The right of lien, therefore, must be subser\nent to this general riglit, which overrides it ; so that I doubt if that doctrine would apply where the animal delivered was a race- horse, as that case differs much from the ordinary case of training.^ I do not say that the case of JBevan v. Waters was wrongly decided ; I only doubt if it extends to the case of a race-horse, unless perhaps he was delivered to the groom to be trained for the purpose of running a specified race, when of course these observations of mine would not apply. But, at all events, I am clear that this agister has no lien, as his case certainly does not come within the general principles which have been established ; in addition to which, such a claim would be 1 Approved and followed in Forth v. Simpson, 13 Q. B. 680. — Ed. U 162 JACKSON V. CUMMINS. inconsistent with the more general right exerciseable by the owner of the cattle. Alderson, B. I agree that the agister has no lien in this case. On the first point, however, I give no opinion. Maule, B. I think the effect of this plea is to set up a claim of lien under the agreement only ; for, if understood in the sense which would make it not demurrable, it says, during the continuance of such a state of circumstances, these cattle were taken awa}'. On the other point, I agree with the rest of the court that no lien exists. JRiile discharged} 1 Goodrich V. Willard, 7 Gray, 183, accord. ; Lewis v. Tyler, 23 Cal. 364. " The non-existence of tlie promise implied, in fact, in early times, also makes intel- ligible a distinction in the law of lien, which greatly puzzled Lord EUenborough and his colleagues. Williams, J., is reported to have said in 1605 : ' If I put my clotlis to a tailor to make up, he may keep them till satisfaction for the making. But if I contract with a tailor that he shall have so much for the making of my apparel, he cannot keep them till satisfaction for the making.' 2 Roll. Ab. 92, pi. 1, 2. In the one case, having no remedy by action, he was allowed a lien, to prevent intolerable hardship. In the other, as he had a riglit to sue on the express agreement, it was not thought necessary to give him the additional benefit of a lien. An innkeeper had the further right of selling a horse as soon as it had eaten its value, if there were no express contract. For, as he had no right of action for its keep, the horse there- after was like a damnosa hereditas. The Hostler's case (1605), Yelv. 66, 67. This right of sale disappeared afterwards with the reason upon which it was founded. Jones V. Pearte, 1 Stra. 556. As soon as the right to recover upon an implied quantum meruit was admitted, the reason for this distinction vanished. But the acquisition of a new remedy by action did not displace the old remedy by lien. ' And it was resolved that an innkeeper may detain a horse for his feeding, and yet he may have an action on the case for the meat.' Watbroohe v. Griffith (1609), Moore, 876, 877. The old rule, expressed, however, in the new form of a distinction between an express and an implied contract, survived to the present century. Chap- man V. Allen, Cro. Car. 271 ; Collins v. Ongli/, Selw. N. P. (13th ed.) 1312, n. {x), per Lord Holt; Brennan v. Currint (1755) Say. 224, BuUer, N. P. (7th ed.) 45, n. (c); Cowell V. Simpson, 16 Ves. 275, 281, per Lord Eldon ; Searfe v. Morgan, 4 M. & W. 270, 283, per Parke, B. At length, in 1816, the judges of the King's Bench, unable to see any reason in the distinction, and unconscious of its origin, declared the old dicta erroneous, and allowed a miller his lien in the case of an express contract. Chase v. Westmore, 5 M. & Sel. 180. " The career of the agistor's lien is also interesting. That such a lien existed before the days of implied contracts is Intrinsically probable, and is also indicated by several of the books. 2 Roll. Ab. 85, pi. 4 (1604); Mackerne.y v. Erwin (1628), Hutt. 101; Chapman v. Allen (16.32), 2 Roll. Ab. 92, pi. 6, Cro. Car. 271, s. c. But in Chapman y. Allen, 2 Roll. Ab. 92, pi. 6, Cro. Car. 271, s. c. (1632), the first reported decision involving the agistor's right of detainer, there happened to be an express contract, and the lien was accordingly disallowed. When a similar case arose two centuries later in Jackson v. Cummins, 5 M. & W. 342, this precedent was deemed controlling, and, as the old distinction between express and implied contracts was no longer rec- ognized, the agistor ceased to have a lien in any case. Thus was established the modern and artificial distinction in the law of lien between bailees for agistment and ' bailees who spend their labor and skill in the improvement of the chattels ' delivered to them. The agistor has a lien by the Scotch law. Schouler, Bailments (2d ed ), § 122." J. B. Ames in 2 Harv. L. R. 61, 62. See Kelsey v. Lane, 28 Kan. 218, 223. In many jurisdictions, a lien is given by statute to agistors and stable-keepers. 1 Jones, Liens (2d ed.), §§ 647-682. Fishell v. Morris, 57 Conn. 547. — Ed. STEINMAN V. WILKINS. 163 STEINMAN V. WILKINS. Supreme Court op Penksylvania. 1844. [Reported 7 W. #• S. 4C6.] The plaintiff brought tliis action of trover against the defendant, who is a warehouseman in Clarion Conntj', on the Alleghenj' River, for the supposed conversion of certain goods retained for the price of warehouse room, being part of a larger lot which was stored in his warehouse by Hamilton & Humes, of whom the plaintiff is the general assignee. The greater part had been delivered to Hamilton & Humes, and the residue having been demanded without tender of any charges, M'Calmont (President of the Common Pleas of Clarion County) directed the jury that though the defendant could not retain for the general balance of his account, he miglit retain for all the charges on all the goods forwarded to him at the same time. A bill of exceptions was sealed, and the point was argued on a writ of error to this court by — Gilmore, for plaintiff in error; Hoioe, for defendant in error. The opinion of the court was delivered by — Gibson, C. J. Though a plurality of the barons in Rex v. Hum- phery, M'Clel. & Y. 194-195, dissented from the dictum of Baron Graham that a warehouseman has a lien for a general balance, like a wharfinger, I do not understand them to have intimated that he has no lien at all. They spoke of it as an entity, and seem to have admitted that he has a specific lien, though not a general one. There is a well- known distinction between a commercial lien, which is the creature of usage, and a common-law lien, which is the creature of policy. The first gives a right to retain for a balance of accounts ; the second, for services performed in relation to tiie particular property. Commercial or general liens, which have not been fastened on the law merchant by inveterate usage, are discountenanced by the courts as encroachments on the common law; and for that reason it would be impossible to maintain the position of Baron Graham, for there is no evidence of usage as a foundation for it, and no text-writer has treated of warehouse room as a subject of lien in any shape. In Hex v. Humpheri/, it was involved in the discussion only incidentallj' ; and I have met with it in no other case. But there is doubtless a specific lien provided for it by the justice of the common law. From the case of a chattel bailed to ac- quire additional value bj' the labor or skill of an artisan, the doctrine of specific lien has been extended to almost every case in which the thing has been improved by the agency of the bailee. Yet in the recent case of Jackson v. Cummins, h Mees. & Welsh. 342, it was held to extend no further than to cases in which the bailee has directly conferred ad- ditional value by labor or skill, or indirectly by the iustrumentality of 164 STEINMAN V. WILKINS. an agent under his control ; in supposed accordance with which it was ruled that the agistment of cattle gives no lien. But it is difficult to find an argument for the position that a man who fits an ox for the shambles, by fatting it with his provender, does not increase its in- trinsic value by means exclusively within his control. There are cer- tainly cases of a different stamp, particularly Bevan v. Waters, Mood. & Malk. 235, in which a trainer was allowed to retain for fitting a race-horse for the turf. In Jackson v. Cummins we see the expir- ing embers of the primitive notion that the basis of the lien is intrin- sic improvement of the thing by mechanical means ; but if we get awaj' from it at all, what matters it how the additional value has been imparted, or whether it has been attended with an alteration in the condition of the thing? It may be said that the condition of a fat ox is not a permanent one ; but neither is the increased value of a mare in foal permanent ; yet in Scarfe v. Morgan, 4 Mees. & Welsh. 270, the owner of a stallion was allowed to have a lien for the price of the leap. The truth is, the modern decisions evince a struggle of the ju- dicial mind to escape from the narrow confines of the earlier prece- dents, but without having as j'et established principles adapted to the current transactions and convenience of the world. Before Chase v. Westmore, 5 Maule & Selw. 180, there was no lien even for work done under a special agreement ; now, it is indifferent whether the price has been fixed or not. In that case Lord Elleuborough, alluding to the old decisions, said that if they " are not supported by law and reason, the convenience of mankind certainly requires that our decisions should not be governed by them ; " and Chief Justice Best declared in Jacobs V. Ziatour, 5 Bing. 132, that the doctrine of lien is so just between debtor and creditor, that it cannot be too much favored. In Kirkham v. Shawcross, 6 T. E. 17, Lord Kenyon said it had been the wish of the courts, in all cases and at all times, to carrj' the lien of the common law as far as possible ; and that Lord Mansfield also thought that jus- tice required it, though he submitted when rigid rules of law were against it. What rule forbids the lien of a warehouseman ? Lord Ellenborough thought, in Chase v. Westmore, that everj- case of the sort was that of a sale of services performed in relation to a chattel, and to be paid for, as in the case of any other sale, when the article should be delivered. Now, a sale of warehouse room presents a case which is bound by no pre-established rule or analogy ; and, on the ground of principle, it is not easy to discover why the warehouseman should not have the same lien for the price of future delivery and intermediate care that a carrier has. The one delivers at a different time, the other at a different place ; the one after custody in a warehouse, the other in a vehicle; and that is all the difference. True, the measure of the carrier's responsibility is greater ; but that, though a consideration to influence the quantum of his compensation, is not a consideration to increase the number of his securities for it. His lien does not stand on that. He is bound in England by the custom of the realm to carry for all employers at estab- BRITISH EMPIBE SHIPPING COMPANY V. SOMES. 165 lished prices ; but it is bj' no means certain that our ancestors brought the principle with them from the parent country as one suited to their condition in a wilderness. We have no trace of an action for refusing to carry ; and it is notorious that the wagoners, who were formerly the carriers between Philadelphia and Pittsburg, frequently refused to load at the current price. Now, neither the carrier nor the warehouseman adds a particle to the intrinsic value of the thing. The one delivers at the place, and the other at the time, that suits the interest or the con- venience of the owner of it, in whose estimation it receives an increase of its relative value from the services rendered in respect of it, else he would not have undertaken to pay for them. I take it, then, that, in regard to lien, a warehouseman stands on a footing with a carrier, whom in this country he closely resembles. Now, it is clear from Sodergren v. Flight & Jennings, cited 6 East, 662, that where the ownership is entire in the consignee, or a purchaser from him, each parcel of the goods is bound, not onl^' for its particular proportion, but for the whole, provided tlie whole has been carried under one contract ; it is otherwise where to charge a part for the whole would subject a purchaser to answer for the goods of another, delivered by the bailee with knowledge of the circumstances. In this instance, the en- tire interest was in Hamilton & Humes, in whose right the plaintiff sues; and the principle laid down by tlie presiding judge was substan- tially right. On the other hand, the full benefit of it was not given to the defendant in charging that the demand and refusal was evidence of conversion. There was no evidence of tender to make the detention wrongful ; and the defendant would have had cause to complain, had the verdict been against him, of the direction to deduct the entire price of the storage from the value of the articles returned, and to find for the plaintiff a sum equal to the difference. But there has been no error which the plaintiff can assign. Judgment affirmed} BRITISH EMPIRE SHIPPING COMPANY v. SOMES. Queen's Bench. 1858. [Reported E. B. Sj- E. 353.] Action for money had and received.^ A case was stated substan- tially as follows : The plaintiffs were the owners of a ship called The British Empire. The defendants were shipwrights on a large scale. The plaintiffs employed the defendants to repair the ship, and she was taken into the defendant's dock at Blackwall, September 1, 1856. When the repairs were completed the defendants declined to let the 1 Schmidt v. Blood, 9 Wend. 268, accord. Under New York statutes, a warehouse- man has a general lien. Stallman v. Kimherly, 121 N. Y. 393. — TjD. 2 The following sliort statement is substituted for that in the report. 166 BKITISH EMPIRE SHIPPING COMPANY V. SOMES. ship go until their bill for repairs was paid, or security given for its payment ; and the plaintiffs not doing either, the defendants on Novem- ber 25, 1856, gave the plaintiffs written notice that they should charge them £21 a day for the hire of their dry dock from the time when their account was delivered, November 20. The plaintiffs disputed the right of the defendants to make this charge, but on December 22, 1856, paid, under protest, the whole amount claimed by the defendants, which included the sum of £567 as rent of the dock for twenty-seven daj-s at £21 a day. The question for the court was whether the defendants were entitled to retain the £567. The case was argued in Easter Term, 1858. Before JJord Campbell, C. J., and Wiffhtman, Erie and Crompton, JJ. JBlackburn, for the plaintiffs. T. Jones, for the defendants. Lord Campbell, C. J., now delivered judgment. We are of opinion that, under the circumstances stated in the special case, the defendants are not entitled to retain the sum paid to them in respect of the item of £567, or any other sum, as a compensation for the use of their dock in detaining the plaintiffs' ship. As artificers who had expended tlieir labor and materials in repairing the ship which the plaintiffs had delivered to them to be repaired, the defendants had a lien on the ship for the amount of the sum due to them for these repairs ; but we do not find any ground on which their claim can be supported to be paid for the use of their dock while they detained the ship under the lien against the will of the owners. There is no evidence of any special contract for such a payment. The defendants gave notice that they would demand £21 a day for the use of their dock during the detention : but the plaintiffs denied their liability to make any such payment, and insisted on their right to have their ship immediately delivered up to them. Nor does any custom or usage appear to au- thorize such a claim for compensation, even supposing tliat a wharf- inger with whom goods had been deposited, he being entitled to warehouse-rent for them from the time of the deposit, might claim a continuation of the payment during the time he detains them in the exercise of right of lien till the arrears of warehouse-rent due for them is paid (see Bex v. Humphery, M'Cl. & Y. 173) : there is no ground for a similar claim here, as there was to be no separate payment for the use of the dock while the ship was under repair, and the claim only commences from the refusal to deliver her up. The onus therefore is cast upon the defendants to show that, by the general law of England, an artificer who, exercising his right of lien, detains a chattel, in mak- ing or repairing which he has expended his labor and materials, has a claim against the owner for taking care of the chattel while it is so detained. But the claim appears to be quite novel; and, on principle, there is great difficulty in supporting it either ex contractu orccc delicto. The owner of the chattel can hardly be supposed to have promised to pay for the keeping of it while, against his will, he is deprived of the BRITISH EMPIRE SHIPPING COMPANY V. SOMES. 167 use of it ; and there seems no consideration for such a promise. Then the chattel can hardly be supposed to be wrongfullj- left in the posses- sion of the artificer, when the owner has been prevented by the artificer from taking possession of it himself. If such a claim can be supported, it must constitute a debt from the owner to the artificer, for which an action might be maintained : when does the debt arise, aud when is the action maintainable? It has been held that a coachmaker cannot claim any right of detainer for standage, unless there be an express contract to that effect, or the owner leaves his property on the premises beyond a reasonable time, and after notice has been given him to remove it. Hartley v. MitchcocJc, 1 Stark. 408. The right of detaining goods on which there is a lien is a remedy to the party aggrieved which is to be enforced by his own act ; and, where such a remedy is permitted, the common law does not seem generally to give him the costs of enforcing it. Although the lord of a manor be entitled to amends for the keep of a horse which he has seized as an estray {Henley v. Walsh, 2 Salk. 686), the distrainor of goods which have been replevied cannot claim any lien upon them : Bradyll v. Ball, 1 Bro. C. C. 427. So, where a horse was distrained to compel an appearance in a hundred coui't, it was held that, after appearance,- the plaintiff could not justify detaining the horse for his keep. Bui. N. P. 45. If cattle are distrained damage feasant, and impounded in a pound overt, the owner of the cattle must feed them ; if in a pound covert or close, " the cattle are to be sustained with meat aud drink at the peril of him that distraineth, and he shall not have any satisfaction there- fore." Co. Litt. 47 b. For these reasons, on the question submitted to us, we give judgment for the plaintifiTs. Judgment for the plaintiffs.^ Note. — Lien op Banker. A banker has a lien on all securities of a customer in his possession, or a right to retain out of moneys due the customer, for the general balance of his account. Jourdaine v. Lefevre, 1 Eap. 66 ; Brandao v. Barnett, 12 CI. 6 F. 787, 805; Bank of the Metropolis v. New England Bank, 1 How. 234, 239. Appeal of Liggett, 1 11 Pa. 291, semble, contra. But where the securities have been deposited for a specific purpose, there is no lien for a general balance. Armstrong v. Chemical Nat. Bank, 41 Fed. R. 234, 239 ; Masonic Savings Bank v. Bangs, 84 Ky. 135. Lien of Attorney or Solicitor. An attorney or a solicitor has a lien on all papers of his client in his possession, for the general balance of account. Sterling, ex parte, 16 Ves. 268; Hurlbert v. Brigham, 56 Vt. 368. In Walton v. Dickerson, 7 Pa. 377, it was denied that in Pennsylvania an attorney had any lien ; but see Mc- Kelvey's Appeal, 108 Pa. 616. In Massachusetts the question of the existence of an attorney's lien seems undecided; see White v. Harlow, 6 Gray, 463; Simmons v. Almi/, 103 Mass. 33, 35. Vendor's Lien. The subject of Vendor's Lien is treated in courses and text- books on Sale. 1 See Devereux v. Fleming, 53 Fed. B. 401. — Ed. 168 EOBINSON V. "WALTER. B. Lien given ly Person other than Owner, when good against Owner. EOBINSON V. WALTER. King's Bench. 1616. {Reported 3 Bulst. 269.] In an action upon the case for a trover and conversion brought by the plaintiff against the defendant, being an innkeeper, for a horse. The ease, upon the defendant's plea in bar, was this ; The defendant keeping a common inn, a stranger bHngs the plaintiff's horse into this common inn of the defendants, there sets him for some time, and afterwards goes his way, leaving the plaintiff's horse there as a pledge for his meat. The defendant, being the innkeeper, being not paid for the meat of the horse, retains the horse for his meat ; the plaintiff afterwards, being the true owner of the horse, and hearing that his horse was there, demanded his horse of the defendant, who refused to deliver him. Upon this he brings his action. The defendant by way of plea in bar, sets forth all this matter of Iiis keeping a common inn, how that the horse was brought thither, and there left at meat, which was unpaid, and that he retained the horse for his meat, till he was satisfied for the same, and that if the plaintiff would pay him for his meat, he would then deliver the horse to him, but not otherwise ; upon this plea the plaintiff demurred in law. Upon the first opening of this case, the court inclined to be of opin- ion against the plaintiff ; that the defendant's plea was good, and that he might well retain the horse, and that against the plaintiff, being the true owner of him, until he was satisfied by him for his meat, and not- withstanding his horse was left there by a stranger, unknown to the owner ; and for this was remembered the books of 39 H. 6, fol. 18 b, and 5 H. 7, fol. 15 b, the case of the leather converted. DoDDEEiDGB, Justice. This is a common inn, and the defendant a common innkeeper, and this his retainer here is grounded upon the general custom of the land : he is to receive all guests and horses that come to his inn ; he is not bound to examine who is the true owner of the horse brought to his inn ; he is bound, as he is an innkeeper, to receive them, and therefore there is very great reason for him to retain him, until he be satisfied for his meat which he hath eaten ; and that the true owner of the horse cannot have him away, until he have satis- fied the innkeeper for his meat. The court agreed with him herein, but the court said, that this being a new and a good case, they held it fit to be argued by counsel on both EOBINSON V. ■WALTER. 169 sides, and so for this purpose, tliis case was adjourned to a further time. Afterwards, (S) Termin. Trin. 15 Jac. B. E., this case was moved again, and argued on both sides. Divers authorities were cited, and reasons urged, and enforced for the defendant, that the plea was good. That the defendant being a common innkeeper, may retain a horse, brought into his inn, and tliere left, until lie be paid for his meat, and for this purpose. Coke 8 pars, fol. 146, 147 a, the Six Carpenters' Case, was cited, and 5 E. 4, fol. 2 b, placito 16. That an hostler may well detain a horse, if the master will not pay for his meat, and so of a tailor a garment by him made, till he be paid for it ; and so is 22 E. 4, fol. 49 b. Several reasons urged for this, as (S). 1. In respectu loci, this being a common inn, where he is compellable to receive horses coming thither, and is not to examine whose they are, and this place hath a privilege, as to a distress, not to be there dis- trained by another, as a millstone not to be distrained, by 14 H. 8, fol. 25 b ; nor a horse at the smith's shop, by 22 E. 4, fol. 49 b, 7 H. 7, fol. 2 a. A horse not to be there distrained for the prejudice of the common- weal, nor yet in a market or fair ; so that an inn is there compared to a market. A second reason of this (S), 2. Why he may detain a horse for his meat, nothing more reason- able, as it was urged. An infant shall be bound by his bond for his meat. If one drives the cattle of another into the ground of I. S. he may, it was urged, detain them, till he be satisfied for the hurt done by them. 3. Because here was no default in the innkeeper, who did entertain him ; neither is he to demand whose horse this was, for that every man hath a license in law, to come with his horses into an inn, and the innkeeper cannot put him back; and so is the Six Carpenters' Case before remembered ; but he may detain them for their meat. Mich. 6 Jac. B. R. between Harlow v. Wood, the same case was (as is here now in question) and resolved that an innkeeper may retain and keep a horse left in his inn for his meat, though it be the horse of a stranger. MocNTAGUE, Chief Justice. Where one is hired to serve, there he shall not wage his law, because compellable. Communia hospitia are compellable to receive guests and their horses ; and so he is to answer for them, which are brought thither ; the custom of London is good and reasonable, how long to stay, not till he eats out more than his head; the innholder may sell him presently, and this is justifiable. Here in this case, the innkeeper said to the plaintiff, Prove the horse to be yours, pay for his meat, and you shall have him. This is no denial, nor yet any conversion, he claims no property at all; he only detains the horse, till he be satisfied for his meat, and so he may well do by the law; he may keep him, till he be paid for his meat, because he is compellable at the first to receive him. 170 KOBINSON V. WALTER. DoDDERiDGE, Justice. One who hath no keeping for his horse, doth devise this way to send his man with him to an inn, and to let him stand there, and afterwards to come thither himself, and of the inn- keeper to demand his horse, and upon his refusal, to bring his action upon the case ; this is a fine trick for the plaintiff to have his horse kept, and to give the innkeeper nothing for the same ; but instead of paying of him for his meat, to p&y him with an action, which he hath no cause so to do, as this case here is, the innkeeper maj' well justify the keeping of his horse, till he do pay him for his meat, which is all he desires to have. Haughton, Justice, differed in opinion. The party being the true owner of the horse, hath no other way to provide for himself, but this. The innkeeper hath his proper remedy against him, who brought and left the horse there for his meat, and for him thus to prejudice the owner of the horse, by the wrong of another, this will be very incon- venient. Croke, Justice. If a stranger takes mj' cattle, and puts them into the ground of another, he may well keep them till I pay him for their meat, and hurt there done. If a man's horse be stolen, and brought unto an inn, or if a man lends his horse to one for a day, and he keeps him three or four days, the innkeeper here was in no fault at all. If the horse was stolen and brought thither, he cannot charge the innkeeper with this, but he which brought him thither, and there left him. Here the innkeeper hath done no wrong at all, the owner is to satisfy him for his meat, because he was here compellable to receive him. MouNTAGUE. If a stranger takes the horse of another, and sets him up in an inn, if the horse was there stolen away, the party may have his remedy against the innkeeper. If a man's servant carries his master's horse to an inn, and there leaves him, and he is stolen away ; an action lieth here for the master, as well as for the servant, against the innkeeper. DoDDERiDGE agreed this to be so, if he knew him to be his servant ; the owner is to pa}^ for his meat, and it would be a very mischievous thing if it should be otherwise; for when a man hath lost his horse, he is to look for him, and when he hath found him in the inn, if he should not be enforced to pay for his meat, this would be a trick, to have his horse kept for nothing, and to have him brought by his servant to the inn. The owner hath a benefit, (S.) meat for his horse, and for the which he ought to paj'. CuEiA. The pleading here is not good, therefore they did advise the party to plead to issue, and so to go to trial, and so judgment ma^' then be given upon the event, but as the case here is ; Croke, DODDERIDGE, and MouNTAGUE, clear of opinion for the defendant against the plaiutiflF. Haughton differed from them in opinion for the plaintiff. And so upon this action here brought, and upon the demurrer to the defendant's plea, the opinion of the court was against the plaintiff, that BEOADWOOD V. GRANAEA. 171 the demurrer was not good ; and so the rule of the court was, Quod querens nil capiat per billam. JVota. That the like case, as this principal case is, was in this court. Termin. Triu. 9 Jac. B. R. , between SJcipwitk plaintiff, against I. /S. an innkeeper (in a trover, and conversion for his horse, brought to the inn, by a stranger, and there detained for his meat) argued by the four judges, and the court therein divided Williams & Ceoke Justices, That the innkeeper may keep the horse till lie be paid for his meat. Yelverton & Fenner, Justices, e contra, touching this matter, vide prima pars, fol, 170. Vide also, the custom of London, for an innkeeper to have a horse praised and sold for the meat he had eaten. Termino Trinit. 10 Jac. B. R. 1 pars, fol. 207. Mosse plaintiff, against Townsend defendant.' BEOADWOOD v. GRANAEA. Exchequer. 1854. [Reported 10 Exch. 417.] This was a case stated for the opinion of the court by consent of the plaintiffs and defendant, and by order of a judge. The declaration stated that the defendant converted to his own use the plaintiffs' goods, — that is to say, a boudoir grand-pianoforte. The defendant pleaded, first, not guilty ; secondly-, that the goods were not the plaintiffs'. Upon which isues were joined. Tlie plaintiffs are, and at the time of the alleged conversion were, in partnership as manufacturers of pianofortes, in Great Pulteney Street, London. The defendant was, and is, the proprietor of an inn or hotel, called the Hotel de I'Europe, in Leicester Place, Leicester Square. In March, 1853, a Monsieur Hababier, a foreigner and professional pianist, went to reside at the defendant's hotel, and remained there, oc- cupying apartments, and occasionally taking his meals in the house, for some months. On the 28th of March Monsieur Hababier, then re- siding at the hotel, as before mentioned, went to the manufactory of the plaintiffs in Great Pulteney Street, and requested the use or loan of a grand-pianoforte. It has been, and is, usual for the plaintiffs to lend pianofortes to musical artists without charge ; and in compliance with this request a grand-pianoforte was sent to the before-mentioned hotel for the use of Monsieur Hababier. This pianoforte remained at the hotel in possession of Monsieur Hababier, in his apartments, until the 9th of June following, when it was taken away and replaced by a 1 See Still v. Drungold, 3 Bulst. 289 ; Sunbolf v. Alford, 3 M. & W. 248 ; Binns v. Pigot, 9 C. & P. 208. — Ed. 172 BROADWOOD V. GKANAEA. boudoir grand-pianoforte, also supplied by the plaintiffs, without charge, to Monsieur Hababier. Monsieur Hababier remained at the hotel until the 27th of June, and during that time incurred a bill for the use of the apartments, and for board, hire of carriages, and other accommodation, to a consider- able amount. Some payments were made on account, but at the time of the demand and refusal hereinafter mentioned there was a balance due from him to the defendant of £46 3s. od., consisting in part of use of apartments, &c., after the 9th of June. On the 27lh of June the plaintiffs' clerks applied to the defendant for the lastrmentioned pianoforte, and requested that it might be delivered to him for the plaintiffs. He, at the same time, handed to the defend- ant a written authoritj' from Monsieur Hababier to deliver it to the plaintiffs. The defendant declined to deliver up the pianoforte. On the following day the clerk again went to the house of the defendant, taking with him a van and two porters, and again demanded the piano- forte. On this occasion tlie defendant asked him if he had brought any money, and being answered in the negative, said, " Unless Messrs. Broadwood pay my bill for the rent of the apartments I will not give up the piano.'' It is admitted, for the purposes of this case, that the hotel of the de- fendant was and is an inn ; and that the defendant was and is entitled to the rights of an innkeeper. The defendant at all times knew the pianoforte in question was not the property of Monsieur Hababier, but that of the plaintiffs ; and the plaintiffs at all times knew that the said Monsieur Hababier was stop- ping at an hotel. The balance due to the defendant from Monsieur Hababier is still unpaid. The question for the opinion of the court is, whether, under the above circumstances, the plaintiffs are entitled to maintain tlie action. If the court shall be of opinion that the action is maintainable, the ver- dict is to be entered for the plaintiffs, with £100 damages. If the court shall be of opinion that the defendant had a right to detain the piano- forte, then the verdict is to be entered for the defendant. Watson, for the plaintiffs. Willes, for the defendant. Pollock, C. B. We are all of opinion that the lien claimed by the defendant cannot prevail. I need not go through the series of de- cisions referred to, or the propositions propounded at the bar, because the limited ground on which I think the plaintiffs entitled to judgment is this : that there is no case which decides that an innkeeper has a right of lien under such circumstances as these. This is the case of goods, not brought to the inn by a traveller as his goods, either upon his coming to or whilst staying at the inn, but they are goods furnished for his temporary use by a third person, and known hy the innkeeper to belong to that person. I shall not inquire whether, if the pianoforte had belonged to the guest, the defendant would have had a lien on it. THREPALL V. BOEWICK. 173 It is not necessary to decide that point, for the case finds that it was known to the defendant that the pianoforte was not the property of the guest, and that it was sent to him for a special purpose. Under these circumstances I am clearly of opinion that the defendant has no lien. Parke, B. I am of the same opinion. It is not necessary to ad- vert to the decisions on the subject of an innkeeper's lieu, because this is not the case of goods brought by a guest to an inn in that sense in which the innkeeper has a lien upon them ; but it is the ease of goods sent to the guest for a particular purpose, and known by the inn- keeper to be the property' of another person. It therefore seems to me that there is no pretence for saying that the defendant has any lien. The principle on which an innkeeper's lien depends is, that he is bound to receive travellers and the goods which they bring with them to the inn. Then, inasmuch as the effect of such lien is to give him a right to keep the goods of one person for the debt of another, the lien cannot be claimed except in respect of goods which, in performance of his duty to the public, he is bound to receive. The obligation to re- ceive depends on his public profession. If he has only a stable for a horse he is not bound to receive a carriage. There was no ground ■whatever for saying that the defendant was under an obligation to receive this pianoforte. Aldekson, B. I am of the same opinion. Platt, B. The case of Johnson v. Sill, 3 Stark. 172, shows the principle of law which is applicable to the present ease. If a person brings the horse of another to an inn, the innkeeper may detain it from the owner until its keep is paid. But if, as the jurj' found in Johnson V. Hill, the innkeeper knew that the person bringing the horse illegally got possession of it, and therefore had no right to pledge it for his debt, then the lien does not attach. Here the plaintiffs send a piano- forte to the room of the guest, and the innkeeper well knew that it was not the property of the guest, and that it was not competent for him to pledge it for a debt of his own. Then how can it be said that any act of the plaintiffs gave the defendant a right to detain the pianoforte for his guest's debt? The plaintiffs might have taken it away the next minute. The case does not fall within the principles of law relating to the lien of innkeepers. Judgment for the jilaintiffs. THREFALL v. BORWICK. Queen's Bench, 1872. [RepoHed L. R. 7 Q. B. 711.] Declaration for detaining a pianoforte of plaintiff. First plea, not guilty; and, inter alia, third plea, that defendant was an innkeeper, and kept a common inn for the reception of trav- m THEEFALL V. BOEWICK. ellers and others. That defendant had a lien upon the piano for money paj-able by one Butoher to defendant for lodging and entertainment for himself and his wife and sister, and that Butcher, being then lawfully possessed of the piano, brought it to the inn with him, and defendant detained it in exercise of his lien as innkeeper. Issue joined ; and replication to the third plea, that the piano was let on hire to Butcher b^- plaintiff for a certain time which had elapsed before the detention by defendant, and the piano was not goods which a traveller ordinarily travels with, and defendant was not bound by law to take it in, and plaintiff never authorized Butcher to pledge it or create any lien upon it. Issue joined. At the trial, at Lancaster Spring Assizes, 1872, before Z/ush, J., it appeared that the defendant kept the Ferry Hotel, on Lake Winder- mere, and that one Butcher came there with his wife and sister in April, 1871. In addition to board and lodging. Butcher had a private sitting-room, for which he paid 16s. a week. Butcher brought with him a pianoforte, which defendant thought was Butcher's own, but which he had in fact only hired of the plaintiff. This was put in the private sitting-room. After several weeks, Butcher left the hotel in defendant's debt for board, &c., £45 ; and, on demand bj' the plaintiff, the defendant claimed to detain the piano in exercise of his lien as inn- keeper for the debt due by Butcher. A verdict passed for defendant, with leave to move to enter it for plaintiff for twenty-two guineas. A rule was obtained accordinglj', on the ground that the defendant had no lien upon the plaintiff's piano. Holker, Q. C, showed cause. John Edwards, in support of the rule. Mellor, J. The rule must be dischai'ged. It is not necessary to say anything as to the amendment of the pleadings, because we are all of opinion that the plaintiff's counsel has failed to show that the limits of the innkeeper's liability on the one hand, and of his privilege on the other, are such as he sought to establish. "Whether or not the inn- keeper would have been liable, if an indictment had been brought against him, for not receiving this guest and his goods, having accom- modation for them, it is unnecessary to consider ; when, having accom- modation, he has received the guest with his goods and thereb3- has become liable for their safe custody, it would be hard if he was not to have a lien upon them. And, under such circumstances, the lien must be held to extend to goods which he might possibly have refused to receive. In Turrilly. Crawley, 13 Q. B. 197; 18 L. J. (Q. B.) 155, the case which was most relied upon for the narrower view, Cole- ridge, J., says, we must give effect to the changing usages of societj', and in noticing the distinction attempted between carriages and horses, he says the fact that most of the decisions are with respect to horses is " obviously explainable by reference to the mode of travelling in former THKEPALL V. BOEWICK; 175 times. New usages have grown np ; and, as carriages are commonly used in travelling, the innkeeper's duties and privileges are extended to them." That, therefore, is no authority against the defendant; and the decision was that though the guest was not the true owner of the carriage, that made no difference if the innkeeper did not know it. In Broadwood V. Chranara, 10 Ex. 417; 24 L. J. (Ex.) 1, the inn- keeper knew that the piano did not belong to the guest, and did not receive it as part of the guest's goods ; and on that ground alone the innkeeper was held not entitled to a lien ; although there are some dicta, not necessary to the decision, to the effect that the innkeeper was not bound to receive the piano. Possibly not, though the liability may well be extended according to the extended usages of society ; but, whether the defendant was bound to receive the piano or not, he did receive it as the goods of the guest, and so became liable for it, and therefore must be entitled to his lien. The rule must, therefore, be discharged. Lush, J. I am of the same opinion. The innkeeper's lien is not restricted to such things as a travelling guest brings with him in jour- neying ; the contrarj- has been laid down long ago. It extends to all goods which the guest brings with him, and the innkeeper receives as his. This is laid down in Galye's Case, 8 Rep. 32 a, at least as to the innkeeper's liabilitj', and his lien must be co-extensive. If he has this lien as against the guest, the cases have established beyond all doubt that he has the same right as against the real owner of the article, if it has been brought to the inn by the guest as owner. QuAiN, J. I am of the same opinion. There is no authority for the proposition that the lien of the innkeeper onl^' extends to goods which a traveller may be ordinarily- expected to bring with him. In the fifth resolution in Calye's Case, 8 Rep. at f. 33 a, the expression in the writ of hona et catalla is shown to be extended by the subsequent words, ita quod hospitihus damnum, non eviniat ; and although the words hona et catalla " do not of their proper nature extend to charters and evidences, &c., or obligations, or other deeds or speciaUties, being things in action, yet in this case it is expounded hy the latter words to extend to them ; for by them [that is, the loss of them] great dam- ages happen to the guest ; and therefore if one brings a bag or chest, &c., of evidences into the inn, or obligations, deeds, or other speciali- ties, and by default of the innkeeper they are taken away, the inn- keeper shall answer for them." A chest of deeds is certainly not ordinary traveller's luggage, and there is, therefore, no pretence for saying that there is any rule which confines the liability of the inn- keeper to such articles; and certainly we ought not to confine his correlative lien within narrower limits. The liability, as shown by the old cases, extends to all things brought to the inn as the property of the guest and so received, even a chest of charters, or obligations ; and why not a pianoforte ? If, therefore, the innkeeper be liable for the loss, it seems to follow that he must also have a lien upon them. And 176 EOBINS & CO. V. GRAY. if he has a lien upon them as against the guest, the two cases cited (and there are more) show that if the thing be brought bj' the guest as owner, and the landlord takes it in thinking it is the guest's own, he has the same rights against the stranger, the real owner, as against the guest. Hule (Mscharged.^ EOBINS & CO. V. GRAY. Queen's Bench Division. 1895. [Reported 2 Q. B. 601.] Appeal from the judgment of Wills, J. in an action tried without a jnr3'. The action was brought to recover from the defendant, an inn- keeper, certain sewing-machines, the property of the plaintiffs, which they alleged were wrongfully detained by the defendant. The plaintiffs were a firm of dealers in sewing-machines and other articles. In 1894 they had in their emploj'ment as a commercial travel- ler one Green, who canvassed for orders and sold their goods upon commission. In April, 1894, Green, for the purposes of his business as such commercial traveller, went to stay at the defendant's hotel, taking with him sewing-machines, the property of his employers, for the purpose of selling them to customers in the neighborhood. He re- mained there until the end of July. Whilst there the plaintiffs sent to him from time to time more sewing-machines for the same purpose. At the end of Julj' Green left the hotel without paying his bill for board and lodging, and he left there some of the machines so sent. Before the defendant received into his hotel the machines so sent, and before Green had incurred his debt for board and lodging, the defendant had been expressly told by the plaintiffs that the machines were their prop- erty, and not the property of Green ; but he received the goods into his hotel as Green's baggage. The defendant claimed a lien for the amount of Green's debt upon the machines left by him at the hotel. On the above facts the learned judge gave judgment for the defendant. The plaintiffs appealed. Arthur Powell and Guy Granet, for the appellants. An innkeep- er's lien attaches only in respect of goods which he receives into his inn in his character of an innkeeper, and as the goods of the guest who brings them, or, perhaps, to whom they are sent : Smith v. Dearlove, 6 C. B. 132. Where the innkeeper has notice that the goods so brought or sent are not the property of the guest but of some other person, and therefore does not receive them as the goods of the guest, he has no lien. His right of lien depends upon whether he is bound to receive the goods into his inn and to keep them safely as his guest's I Affirmed, Ex. Ch., L. R. 10 Q. B. 210. Cook y. Kane, 13 Oreg. 482, accord. — Ed. ROBINS & CO. V. GEAT. 177 goods, and he is not bound to do either of those things if, to his knowl- edge, the goods are not the goods of the guest. The sewing-machines in question here were not the guest's personal luggage, but merchandise sent by the plaintiffs for a temporary purpose, namely, to be kept by the guest until they could be sold in the neighborhood. They were, therefore, like the piano hired by a guest staying at an inn in Broadwood V. Granara, 10 Ex. 417, in which case it was held that the innkeeper, ■who knew the circumstances under which the piano was brought into the inn, had not a lien. In all the cases the question of the innkeeper's knowledge with respect to the property in the goods has been treated as material. In Johnson v. Hill, 3 Stark. 172, Abbott, C. J., and in TurrUl v. Crawley, 13 Q. B. 197, Coleridge, J., left that question to the jury. In ThrefaU v. Borwick, L. R. 10 Q. B. 210, the innkeeper believed that the piano which the guest had hired from the plaintiff was the guest's own property ; and in Mulliner v. Florence, 3 Q. B. D. 484, the goods were received bj' the innkeeper as part of the guest's own property. In Gordon v. Silber, 25 Q. B. D. 491, Lopes, L. J. in his judgment treated as material the fact that the innkeeper knew of no distinction between the goods of the husband and those which were the separate property of the wife, both having brought goods to the inn. Bobiiison v. Walter, 3 Bulstr. 269, is not in point, because the decision only was that an innkeeper had a lien upon the horse of a stranger for the keep of the horse — not for the debt of the person who brought it to the inn. W. E. Hume Williams, for the respondent, was not called upon to argue. LoED EsHEB, M. R. I have no doubt about this case. I protest against being asked, upon some new discovery as to the law of innkeep- er's lien, to disturb a well-known and very large business carried on in this country for centuries. The duties, liabilities, and rights of inn- keepers with respect to goods brought to inns bj' guests are founded, not upon bailment, or pledge, or contract, but upon the custom of the realm with regard to innkeepers. Their rights and liabilities are dependent upon that, and that alone; they do not come under any other head of law. What is the liability of an innkeeper in this respect ? If a traveller comes to an inn with goods which are his lug- gage — I do not say his personal luggage, but his luggage — the inn- keeper by the law of the land is bound to take him and his luggage in. The innkeeper cannot discriminate and say that he will take in the traveller but not his luggage. If the traveller brought something ex- ceptional which is not luggage — such as a tiger or a package of dyna- mite — the innkeeper might refuse to take it in ; but the custom of the realm is that, unless there is some reason to the contrary in the excep- tional character of the things brought, he must take in the traveller and his goods. He has not to inquire whether the goods are the property of the person who brings them or of some other person. If he does so inquire, the traveller may refuse to tell him, and may say, " What 12 178 BOBINS & CO. V. GKAY. business is that of yours ? I bring the goods here as my luggage, and I insist upon your taking them in"; or he may say, "They are not my property, but I bring them here as my luggage, and I insist upon your taking them in " ; and then the innkeeper is bound by law to take tliem iu. Again, suppose the things brought are such things as the innkeeper is not bound to take in, he may, as I have said, refuse to take them in although the traveller demands that they shall be taken in as his luggage ; but if after that the innkeeper changes his mind and does take them in, then they are in the same position as goods prop- erly offered to the innkeeper according to the custom of the realm. Then the innkeeper's liability is not that of a bailee or pledgee of goods ; he is bound to keep them safely. It signifies not, so far as that obligation is concerned, if they are stolen by burglars, or by the servants of the inn, or by another guest ; he is liable for not keeping them safely' unless they are lost by the fault of the traveller himself. That is a tremendous liability : it is a liability fixed upon the innkeeper b}' the fact that he has taken the goods in ; and by law he has a lien upon them for the expense of keeping them as well as for the cost of the food and entertainment of the traveller. By law that lien can he enforced, not only against the person who has brought the goods into the inn, but against the real and true owner of them. That has been the law for two or three hundred yeai's ; but to-daj' some expressions used by judges, and some questions — immaterial, as it seems to me — which have been left to juries, are relied on to establish that if the innkeeper knows that the goods are not the goods of the person who brings them to the inn, he may refuse to take them in ; or, if he does take them in, he has no lien upon them. One cannot help asking, What is his liability supposed to be if he does take in goods under snch circumstances? It must be borne in mind that goods brought into an inn are not exclusively in the possession of the innkeeper; the person who brings them may deal with them : he may take them out of a box in a room or passage without the knowledge of the innkeeper, though the latter is bound to see that no one else interferes with them. Now, is there any decided case in which it has been held that, al- though goods have been brought to an inn as the luggage of the travel- ler and received as such bj' the innkeeper, he has no lien upon them if he knows that they are not the goods of the traveller? There is not one such case to be found in the books. It was said that Broadwood V. Granara, 10 Ex. 417, was such a case. But there the proposition, that if a guest brings goods into an inn as his luggage the}' must be treated as if thej' were his goods, was fully recognized. The judges held in that case that a piano, not brought to the inn by the guest as his luggage, but sent in by a tradesman for the guest to play upon during his stay at the inn, was not offered to, nor taken possession of by, the innkeeper under the custom of the realm as the luggage of the guest, and therefore that the piano was not subject to the innkeeper's lien. Whether we should have agreed with that decision is immate- ROBINS & CO. V. GRAY. 179 rial. The case was expressly decided on the ground that the law of innkeepers did not applj-. It is, therefore, no authority- in the case now before us, where, as the learned judge in the Court below has found, the goods were brought to the inn as the goods of the traveller and accepted as his goods by the innkeeper. If we were to accede to the argument for the appellants we should be making a new law, and our decision would produce in ver3- many cases great confusion and hardship. I am of opinion that an innkeeper is bound to take in goods with which a person who comes to the inn is travelling as his goods, unless they are of an exceptional character ; that the innkeeper's lien attaches, and that the question of whose propertj' the goods are, or of the innkeeper's knowledge as to whose propertj' they are, is imma- terial. This appeal should, therefore, be dismissed. Kat, L. J. In this case the appellants bring their action for the detention of certain sewing-machines of which thej' ai'e the owners. The defence is, "I am an innkeeper; the goods in question came into mj- possession as the goods of a guest at my inn, and I have a lien upon them for the unpaid bill of that guest." Eeplication, " You knew that they were not his goods ; j'ou had notice that they did not belong to him, but that they belonged to us, the plaintiffs." The ques- tion is, whether that is a good replication. The facts are : The appel- lants' traveller went to the inn taking some sewing-machines with him, and stayed there. Whilst there other machines were sent to him bj' his emploj-ers, and those machines were received bj' the inn- keeper, and were taken care of by him, and were in his possession. The traveller left without paying his bill for board and lodging at the inn. I agree with Wills, J. that the fact that some of the machines were sent to the inn after the traveller had gone there does not make anj' difference; because the innkeeper accepted them as he had ac- cepted the machines originally' brought to the inn by the traveller — that is, as the goods of the traveller — I do not mean his property, be- cause the innkeeper knew that they were the property, not of the trav- eller, but of his emploj'ers. Now, we have had an elaborate argument, and various cases have been cited in support of the appellants' case. We asked counsel if he knew of a single case in which it had been held that an innkeeper could refuse to take in goods of an ordinary descrip- tion brought to his inn bj' a commercial traveller for sale in the neigh- borhood. No case of that kind has been cited or could be found, although this business of commercial travellers has been carried on for a very great length of time, and so largely that there is scarcely an inn in England to which commercial travellers do not go with the goods of their employers. That fact is suggestive in considering the contention now put forward. Further, there is no case to be found in the books to show that an innkeeper would not be liable in the ordinary way for the loss of such goods so brought to his inn by a commercial trj,veller, and so taken in by himself. It is, therefore, clear that, if a commercial traveller goes to an inn with goods as his luggage which are the ordi- 180 EOBINS & CO. V. GEAY. nary goods for sale of a commercial traveller, and the innkeeper takes him and his goods in, the innkeeper's liability in respect of those goods would be the same as in respect of the personal luggage of the travel- ler. That being undoubted, we have to consider whether the innkeep- er's lien is defeated by reason of the fact that when he took the goods in he knew, or had had notice, that they were the property, not of tlie commercial traveller, but of his employers. The law is stated in Eobinson v. Wcdter, 3 Bulstr. 269, by Dodderidge, J., when the case first came before him, thus : " This is a common inn, and the defend- ant a common innkeeper, and this his retainer here is grounded upon tlie general custom of the land : He is to receive all guests and horses that come to his inn : He is not bound to examine who is the true owner of the horse brought to his inn ; he is bound, as he is an innkeeper, to receive them, and therefore there is very great reason for him to retain him, until he be satisfied for his meat which he hath eaten ; and that the true owner of the horse cannot have him away, until he have satis- fied the innkeeper for his meat." That is a distinct statement that this law of an innkeeper's lien is founded on the general custom of the land, and that an innkeeper is not bound to inquire to whom the goods which a guest brings to the inn belong, but is bound to receive them. The case of Broadwood v. Granara, 10 Ex. 417, was chiefly relied on for the appellants. There a guest staying at an inn went to a shop- keeper in the town and hired a piano, which was sent to him at the inn for the purpose of playing on it during his staj' there, and the inn- keeper knew that the piano was so hired for that purpose, and allowed it to be brought into his inn. The Court held that he had no lien upon it ; but the ground of the decision is stated as clearlj- as possible in the judgments. Pollock, C. B. said (at p. 422) : " This is the case of goods, not brought to the inn by a traveller as his goods, either upon his com- ing to or whilst staying at the inn, but thej' are goods furnished for his temporarj- use by a third person, and known by the innkeeper to belong to that third person. I shall not inquire whether, if the piano- forte had belonged to the guest, the defendant would have had a lien on it. It is not necessarj- to decide that point, for the case finds that it was known to the defendant that the pianoforte was not the property of the guest, and that it was sent to him for a special purpose. Under these circumstances, I am clearly of opinion that the defendant has no lien. Parke, B. (at p. 423) said : " It is not necessary to advert to the decisions on the subject of an innkeeper's lien, because this is not the case of goods trought by a guest to an inn in that sense in which the innkeeper has a lien upon them ; but it is the case of goods sent to the guest for a particular purpose, and known by the innkeeper to be the property of another person. It therefore seems to me that there is no pretence for saying that the defendant has any lien." Then follow words which are sufficient to determine the case before us : " The principle on which an innkeeper's lien depends is, that he is bound to receive travellers and the goods which they bring with them EOBINSON V. BAKER. 181 to the inn. Then, inasmuch as the effect of such lien is to give him a right to keep the goods of one person for the debt of another, the lien cannot be claimed except in respect of goods which, in performance of his dut}' to the public, he is bound to receive." An analogous case to that was put by the Master of the Rolls during the argument of the present case. Suppose a jeweller in the town sent, with the knowledge of the innkeeper, certain jewels to a guest at the inn on approval, and allowed them to remain in the inn for some daj'S — could the innkeeper claim and enforce a lien upon those jewels? I should think he could not, because thej' were sent for a special temporarj' purpose, and the innkeeper knew it; they were, therefore, not sent as the goods — I do not mean as the propert3' — of the guest ; they were not goods which he was likelj' to take about with him as his luggage. Eut, in the case before us, the goods were received into the inn as the kind of goods with which the guest was accustomed to travel in his employ- ment as a commercial traveller ; and they were the kind of goods which the innkeeper would be bound to receive without inquiring — and he had no right to inquire — to whom they belonged. If we were to hold that the innkeeper had no lien upon them we should be effect- ing a complete revolution in the custom of the land, in accordance with which an innkeeper, who receives into his inn commercial travellers with the goods of their employers which the travellers bring there in the course of their business, is accustomed to believe, and has a right to believe, that he has a lien upon those goods.' ROBINSON V. BAKER. Supreme Court or Massachusetts. 1849. [RepoHed 5 Cush. 137.] Fletcher, J. [After stating the facts, the instructions requested, and the instructions given.] As the ruling of the judge, that the defendant, as a carrier, had a lien for his freight, was placed upon grounds wholly independent of any rightful authority in the agents of the Old Clinton line and the Albany and Canal line, to divert the goods from the course in which the plaintiff had directed them to be sent, and to forward them by the defendant's vessel, and wholly inde- pendent of the plaintiffs consent, express or implied, the simple ques- tion raised in the case is, whether if a common-carrier honestly and fairly on his pai-t, without any knowledge or susijicion of any wrong, receives goods from a wrongdoer, without the consent of the owner, express or implied, he may detain them against the true owner, until his freight or hire for carriage is paid ; or to state the question in other 1 But see Covington v. Newberger, 99 N. C. 523. — Ed. 182 EOBINSON V. BAKER. words, whether if goods are stolen and delivered to a common-carrier, who receives them honestlj- and fairly in .entire ignorance of the theft, he can detain them against the true owner, until the carriage is paid. It is certainly remaikable, that there is so little to be found in the books of the law, upon a question which would seem likely to be con- stantly occurring in the ancient and extensive business of the carrier. In the case of York v. Grenaugh, 2 Ld. Ray. 866, the decision was, that if a horse is put at the stable of an inn by a guest, the innkeeper has a lien on the animal for his keep, whether the animal is the prop- erty of the guest or of some third party from whom it has been fraud- ulently taken or stolen. In that case, Lord Chief Justice Holt cited the case of an Exeter common-carrier where one stole goods and delivered them to the Exeter carrier, to be carried to Exeter ; the right owner, finding the goods in possession of the carrier, demanded them of him ; upon which the carrier refused to deliver them unless he was first paid for the carriage. The owner brought trover, and it was hold, that the carrier might justify detaining the goods against the right owner for the carriage ; for when they were brought to him, he was obliged to receive them, and carry them, and therefore since the law compelled him to carry them, it will give him a remedj' for the premium due for the carriage. Powell, J., denied the authority of the case of the Exetor carrier, but concurred in the decision as to the innkeeper. There is no other report of the case of the Exeter carrier to be found. Upon the authority- of this statement of the case of the Exeter carrier, the law is laid down in some of the elementarj' treatises to be, that a carrier, who receives goods from a wrongdoer or thief, maj' detain them against the true owner until the carriage is paid. In the case of King v. Richards, 6 Whart. 418, the court, in giving an opinion upon another and entirely different and distinct point, inci- dentally recognized the doctrine of the case of the Exeter carrier. But until within six or seven years there was no direct adjudication upon this question except that referred to in York v. Grenaugh of the Exeter carrier. In 1843, there was a direct adjudication, upon the question now under consideration, in the supreme court of Michigan, in the case of Fitch v. Newberry, 1 Doug. 1. The circumstances of that case were very similar to those in the present case. There the goods were diverted from the course authorized by the owner, and came to the hands of the carrier without the consent of the owner, express or implied ; the carrier however was wholly ignorant of that, and supposed they were rightfully delivered to him ; and he claimed the right to detain them until paid for the carriage. The owner refused to pay the freight, and brought an action of replevin for the goods. The decision was against the carrier. The general principle settled was, that if a common-carrier obtain possession of goods wrongfully or without the consent of the owner, express or implied, and on demand refuse to deUver them to the owner, such owner m.13' bring replevin for the goods or trover for their value. The case ROBINSON V. BAKER. 183 appears to have been very fully considered and the decision is sup- ported by strong reasoning and a very elaborate examination of authorities. A very obvious distinction was supposed to exist between the cases of carriers and innlceepers, thougli tlie distinction did not affect the determination of the case. This decision is supported by the case of Buskirk v. Piirin, 2 Hall, 561. Tliere property was sold on a condition, which tlie buyer failed to compl3' witli, and shipped the goods on board the defendant's vessel. On the defendant's refusal to deliver the goods to the owner, he brought trover and was allowed to recover the value, although the defendants insisted on their right of lien for the freight. Thus the case stands upon direct and express authorities. How does it stand upon general principles? In the case of Saltus v. Everett, 20 Wend. 267, 275, it is said: "The universal and fundamental principle of our law of personal propertj' is, that no man can be divested of his property without his consent, and conseqnentlj- that even the honest purchaser under a defective title cannot hold against the true proprietor." There is no case to be found, or anj' reason or analogy anywhere suggested, in the books, which would go to show that the real owner was concluded by a bill of lading not given by him- self but by some third person, erroneously or fraudulently. If the owner loses his property, or is robbed of it, or it is sold or pledged without his consent, by one who has onlj' a temporary riglit to its use by hiring or otherwise, or a qualified possession of it for a specific purpose, as for transportation, or for work to be done upon it, the owner can follow and reclaim it in the possession of any person, however innocent. Upon this settled and universal principle, that no man's property can be taken from him without his consent, express or implied, the books are full of cases, many of them hard and distressing cases, where honest and innocent persons have purchased goods of others apparently the owners, and often with strong evidence of ownership, but who j-et were not the owners, and the purchasers have been obliged to surrender the goods to the true owners, though wholly with- out remedj' for the monej' paid. There are other hard and distressing cases of advances made honestly and fairly by auctioneers and com- mission merchants, upon a pledge of goods by persons apparently hav- ing the right to pledge, but who in fact had not any such right, and the pledgees have been subjected to the loss of them by the claim of the rightful owner. These are hazards to which persons in business are continually exposed by the operation of this universal principle, that a man's property cannot be taken from him, without his consent. Why should the carrier be exempt from the operation of this universal principle? Why should not the principle of caveat emptor apply to him ? The reason, and the only reason, given is, that he is obliged to receive goods to carry, and should therefore have a right to detain the goods for his pay. But he is not bound to receive goods from a wrong- 184 GILSON V. GWINN. doer. He is bound only to receive goods from one who may right- fully deliver them to him, and he can look to the title, as well as persons in other pursuits and situations in life. Nor is a carrier bound to receive goods, unless the freight or pa}' for the carriage is first paid to him ; and he may in all cases secure the payment of the carriage in advance. In the case of jSing v. Hichards, 6 Wliart. 418, it was decided that a carrier may defend himself from a claim for goods by the person who delivered them to him, on the ground that the bailor was not the true owner, and therefore not entitled to the goods. The common-carrier is responsible for the wrong delivery of goods, though innocently done, upon a forged order. Why should not his obligation to receive goods exempt him from the necessity of deter- mining the right of the person to whom he delivers the goods, as well as from the necessity of determining the right of the person from whom he receives goods ? Upon the whole, the court are satisfied, that upon the adjudged cases, as well as on general principles, the ruling in this case cannot be sustained, and that if a carrier receives goods, though innocently, from a wrongdoer, without the consent of the owner, express or implied, he cannot detain them against the true owner, until the freight or carriage is paid.^ GILSON V. GWINN. Supreme Court of Massachusetts. 1871. [Reported 107 Mass. 126.] Tort for the conversion of a sewing machine. At the trial in the superior court before Reed, J., the plaintiff introduced evidence tend- ing to show that, being the owner of the machine, he let it to Betsey Bunton for a dollar a week, paj'able in advance ; that she paid for some weeks, but afterwards stopped payment ; that some time after she stopped payment she moved from Springfield Street in Boston, where she had been living, to Myrtle Street, and employed the defend- ant, who was licensed to remove furniture from place to place in Bos- ton, to remove her furniture, including the machine, to Myrtle Street; that she neglected to pay the defendant, who thereupon retained the machine, claiming a lien thereon for his services ; that the plaintiff, 1 Clark V. Lowell ^ Lawrence R. R. Co., 9 Gray, 231 ; Jones v. Boston Sf Albany R. R. Co., 63 Me. 188 ; Fitch v. Newberry, 1 Douglass (Mich.), 1, accord. Contra, semble, Waugh v. Denham, 16 Ir. C. L. 405 ; King y. Richards, 6 Whart. 418. When a first carrier has delivered goods to a second carrier against the shipper's orders, the second carrier is often given a lien, on tlie ground that the first carrier was the shipper's agent. Patten v. U. P. Ry. Co., 29 Fed. R. 590 ; Briggs v. Boston ^ Lowell R. R. Co., 6 Allen, 246 ; Vaughan v. Providence ^ W. R. R. Co., 13 K. I. 678. See Denver ^ R. G. Ry. Co. v. HiU, 13 Colo. 35. — Ed. SINGER MFG. CO. V. LONDON & SOUTH WESTEEN e'y CO. 185 having subsequently gone to Springfield Street and ascertained that the lessee had moved to M^-rtle Street, called on her there and learned that the defendant had the machine ; and that he then saw the defendant, and desired liim to accept a deposit of other goods of the lessee in place of the machine, but the defendant refused, and he then demanded the machine. The defendant offered no evidence, and the judge ruled that he had no lien. The jury returned a verdict for the plaintiff, and the judge reported the case for the consideration of this court ; if the ruling was correct, the verdict to stand ; if on the facts reported the defendant had a lien on the machine, then judgment to be for the defendant. C. IT. Hudson, for the defendant. J". I^. Wilson, for the plaintiff, was stopped by the court. Wells, J. The lessee of the sewing machine had a right of posses- sion until demand of return by the owner ; but she had no right of propertj' which she could transfer, and no authority bj' which she could confer any right of property upon another. She could not, therefore, give the defendant a lien upon the property for its carriage for her con- venience and at her request alone. The defendant not having a lien upon the property as against the owner, his possession became wrongful when he refused to surrender it to the plaintiff on demand therefor. Judgment on the verdict for the plaintiff.^ SINGER MANUFACTURING CO. v. LONDON & SOUTH WESTERN RAILWAY CO. Queen's Bench. 1894. [Reported 1 Q. B. Div. 833.] Appeal from the decision of the judge of the Southwark County Court. The plaintiffs by an agreement let to one Woodman a sewing ma- chine. Woodman undertaking to pay to them a rent of Is. Qd. per week payable weeklj' in advance, and it was agreed that at any time during the hire Woodman might become the purchaser of the machine by payment of the price, and that in such case credit should be given 1 As to tlie power of the mortgagor of chattels to create a lien on them against the mortgagee, see Case t. Allen, 21 Kan. 217; Small v. Robinson, 69 Me. 425; Hammond v. Danielson, 126 Mass. 294; Storms v. Smith, 137 Mass. 201 ; Howes v. Newcomb, 146 Mass. 76 ; Lynde v. Parker, 155 Mass. 481 ; Sargent t. Usher, 55 N. H. 287 ; Wright v. Sherman, 3 S. D. 290. As to the power of an officer who seizes chattels on legal process, to create a lien on them against their owner, see Binns v. Pigot, 9 C. & P. 208 ; J. I. Case Plow Works y. Union Iron Works, 56 Mo. Ap. 1. — Ed. 186 SINGER MFG. CO. V. LONDON & SOUTH WESTERN R'Y CO. for all payments previously made under the agreement. Unless and until a purchase was effected, the machine was to continue the sole prop- erty of the plaintiffs, and Woodman was to remain bailee only of it. In May, 1893, Woodman deposited the sewing machine in the cloak rpom belonging to the defendants at Waterloo Station, and received a ticket on which was printed among other conditions, " Articles depos- ited in the cloak rooms for more than 48 hours will be charged Id. extra for each package per diem for the first calendar month, and 2J. per week or part of a week for the second and third calendar months. . . . Articles left in the cloak rooms for twelve months are liable to be sold, and the company will not hold itself responsible to account for the proceeds." Woodman subsequently made default in the payment of the weekly rent, and in October, 1893, he forwarded the cloak-room ticket to the plaintiffs. The defendants refused to deliver the sewing machine to the plaintiffs until they were paid 4s., which was admitted to be the amount of their charges in accordance with the condition indorsed on the cloak-i'oom ticket. The plaintiffs then brought this action to re- cover the machine, and the defendants counter-claimed for the 4s. The countj' court judge held that the defendants had a lien on the sewing machine in respect of these charges, and gave judgment for them on claim and counter-claim. He, however, gave leave to ap- peal, and the plaintiffs appealed. Gluer and W. Hussell, for the plaintiffs. The 'depositary of chattels has no light of lien as against the true owner. The only exceptions to this rule are in the cases of innkeepers, who have a lien on all goods left with them in that character, and of carriers, who have a lien on all goods entrusted to them for carriage. It is not suggested that this sewing machine was entrusted to the defendants as common carriers. No doubt as against the depositor the defendants would be entitled to retain the machine until these charges for warehousing were paid ; but it cannot be contended that the plaintiffs gave him authority to deposit the machine with the defendants so as to make them responsible to the defendants for these warehouse charges. It is clear, therefore, that the counter-claim cannot be sustained, and consequently', since the defendants have no right to recover these warehouse charges from the plaintiffs, they have no lien for those charges as against them : Castel- lain V. Thompson, 13 C. B. n. s. 105 ; Siscox v. Greenwood, 4 Esp. 174; HolUs V. Claridge, 4 Taunt. 807. Acland, for the defendants. It is admitted that the counter-claim cannot be sustained since no express authority to the depositor from the plaintiffs can be shown, and it must, therefore, be treated as with- drawn. The defendants, however, have a lien on the machine for the payment of these charges. They received it as warehousemen, not as carriers, and as such they have a lien upon it : Hex v. Sumphery, M'Cl. & T. 173 ; Moet v. PicleeHng, 8 Ch. D. 372. The principle on which Innkeepers and carriers have a lien on goods entrusted to them SINGER MFG. CO. V. LONDON & SOUTH WESTEKN E'Y CO. 187 for their charges as against all the world is that thej' are bound to re- ceive such goods for storage or carriage respectively : JVaylor v. Man- ffles, 1 Esp. 109. The defendants are also bound to provide cloak rooms at railway stations, and to receive goods into tliem, and, there- fore, the same principle applies. By § 2 of the Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31), every railway company shall according to its powers afford all reasonable facilities for the receiv- ing and forwarding and delivering of traffic on their railway. Traffic is defined by § 1 to include passengers and their luggage and goods, and a cloak room for the reception of the luggage and goods of pas- sengers is such a reasonable facilitj' as a railwaj- companj- are bound to supply- : South Eastern Railviay Go. v. Railway Commissioners, 6 Q. B. D. 586. The right of warehousemen to a lien for their charges was recognized in De Rothschild v. Morrison, Kehewich & Co., 24 Q. B. D. 750, which shows that if the defendants in this case had in- terpleaded they would have been entitled to these charges. Cluer, in reply. De Rothschild v. Morrison, Kekewich & Co., 24 Q. B. D. 750, was a decision on Order lvii., r. 15, and did not refer to the question of lien. The lien of carriers and innkeepers is not dependent on their obligation to receive goods : Threfall v. Rorwick, Law Rep. 10 Q. B. 210. Mathew, J. I tliink that this appeal must be dismissed. The material facts are these. One Woodman, the hirer of a sewing machine, deposited it at the cloak room belonging to the defendants at Waterloo Station. The charges for which the defendants now claim a lien on the machine were incurred in respect of the deposit of the arti- cle there. The hirer, it would appear, after a time made up his mind not to release the article, and gave notice to the owners where it was. It was held by Woodman under a hire-purchase agreement, and, at the time this notice was given, a considerable amount of instalments re- mained unpaid. Thereupon the plaintiffs demanded the possession of the sewing machine from the defendants, and the defendants claimed a lien upon it for their charges for the time during which the article had remained in their cloak room. Now, it could not be disputed that the hirer was entitled, while he was in possession of this article, to carrj- it hy train and to incur such charges in respect of it as a passenger by train does incur. Whatever the origin of the rule, it is not necessary to discuss now ; but it is clear law that a carrier would have on the article so carried a lien for the charges incurred in respect of its car- riage. The sole question now is whether the same principle applies to the charges incurred in respect of its safe custody- in the cloak room. The history of the cloak room at railway stations is supplied by the Railway and Canal Traffic Act, 1854. There it is enacted that a railway company shall afford reasonable facilities for receiving, for- warding, and delivering traffic. One of the most reasonable of such facilities is the cloak room at railwaj' stations, which has been long established in accordance with that Act of Parliament. The cloak 188 SINGER MFG. CO. V. LONDON & SOUTH "WESTERN R'Y CO. room at Waterloo Station existed under that Act of Parliament, and it is said the principle that applies to the contract of carriage applies to this cloak room, which is provided by the compan}' as part of the rea- sonable facilities for the traffic on the line. It seems to me that that argument is a sound one, and that the same principle applies. The lien which the defendants had as carriers thej* had also as owners of the cloak room, and they were entitled, in my opinion, to have pay- ment of their charges in respect of the machine before deliver}- to the plaintiffs. That was the opinion of the countj' court judge. I see no reason to differ from it, and the appeal must be dismissed. Collins, J. I am of the same opinion. I think the sewing machine in this case must be taken to be deposited in the cloak room jnst in the same waj' and subject to the same rights as if it were entrusted to a carrier for the purpose of carriage. I think, that having regard to modern decisions and the rising standard of convenience to which rail- waj' companies are obliged to conform, the cloak room is now to be regarded simply as one of the necessary and reasonable facilities inci- dent to the carriage of passengers and their baggage. The company are common carriers of passengers' luggage, and if they carried this sewing machine the^' would be common carriers of this sewing machine, and would have a lien upon it against all the world in respect of the cost of carrying it. I do not see why they should not equally have a lien for receiving it and warehousing it in their cloak room. The same principle lies at the root of both. Thej' are under an obligation now to give reasonable facilities for the receipt and safe custody of baggage, and it was in the performance of that obligation that they received this sewing machine. Therefore, on tliat ground it seems to me the lien is good, not only against the person depositing it, but against the owner. I think in this case the lien may also be rested on another ground; and that is, that the person who deposited this machine was, as between himself and the owner of it, entitled to the possession of it at the time he deposited it. He was entitled to it under a contract of hire, which gave him the right to use it, I presume, for all reasonable purposes incident to such a contract, and among them, I take it, he acquired the right to take the machine with him if he travelled, and to deposit it in a cloak room if he required to do so. In the course of that reasonable user of the machine, and before the contract of bail- ment was determined, he gave rights to the railway company in respect of the custody of it. I think those rights must be good against the owners of the machine, who had not determined the hire-purchase agreement at the time that those rights were acquired by the railway company. If the owners subsequently determined that agreement, they must determine it subject to the rights which had been acquired, that is, subject to the lien of the defendants for their charges. I think, therefore, that on both those grounds the judgment of the county court judge is right, and the appeal ought to be dismissed. Appeal dismissed ; leave to appeal given. JONES V, PEABLE. 189 C. Loss of Lien. JONES V. PEAELE. King's Bench. 1723. [Reported 1 Stra. 557.] In trover for three horses, the defendant pleaded, that he kept a public inn at Glastenbury, and that the plaintiff was a carrier and used to set up his horses there, and £36 being due to him for the keeping the horses, which was more than they were worth, he detained and sold them, prout ei bene licuU: and on demurrer judgment was given for the plaintiff, an innkeeper having no power to sell horses, except within the city of London. 2 Eoll. Abr. 85; 1 Vent. 71; Mo. 876; Yel. 67. And besides, when the horses had been once out, the power of detaining them for what was due before did not subsist at their com- ing in again. Wilkins v. Carmichael, Doug. 105 ; Co. Bank. Laws, 516, 3 ed. M'COMBIE V. DAVIES. King's Bench. 1805. [Reported 7 East, 5.] This action of trover for tobacco having gone to a second trial, in consequence of the opinion of the court delivered in Trinity term last, 6 East, 538, when it was considered that the defendant's taking an as- signment of the tobacco in the King's warehouse by wa^- of pledge from one Coddan, a broker, who had purchased it there in his own name for his principal, the plaintiff (after which assignment the tobacco stood in the defendant's name in the warehouse, and could onlj- be taken out by his autlioritj'), and the defendant's refusing to deliver it to the plaintiff after notice and demand \>y him, amounted to a conversion. Tlie defence set up at the second trial was, that the plaintiff being in- debted to Coddan his broker in £30 on the balance of his account; and he having a lien upon the tobacco to that amount while it continued in his name and possession, the defendant who claimed hy assignment from Coddan for a valuable consideration stood in his place and was entitled to retain the tobacco for that sum ; and therefore that the plaintiff not having tendered this £30 ought to be nonsuited. Lord Ellenborovgh, C. J., however, being of opinion that the lien was per- sonal, and could not be transferred bj- the tortious act of the broker pledging the goods of his principal, the plaintiff recovered a verdict for the value of the tobacco. 190 m'combie v. da vies. The Solicitor- General now moved to set aside the ■ verdict, and eitlier to enter a nonsuit or have a new trial ; upon the ground that the defendant who stood in the place of Coddan, and was entitled to avail himself of all the rights which Coddan had against his principal, could not have the goods taken out of his hands by the principal without receiving the amount of Coddan's claim upon them. And in answer to the case of Davhigny v. Buval, 5 Term Eep. 604 (which was sug- gested as establishing a contrary doctrine), he observed that Lord Kenyon was of opinion at the trial, that the principal could not recover his goods from the pawnee, to whom they had been pledged by the factor, without tendering to the pawnee the sum advanced by him, which was within the amount of the factor's lien upon the goods for his general balance ; and that his Lordship seemed to retain that opinion when the case was moved in court, though the rest of the bench differed from him. But — LoED Ellenborough, C. J., said, that nothing could be clearer than that liens were personal,^ and could not be transferred to third persons by any tortious pledge of the principal's goods. That whether or not a lien miglit follow goods in the hands of a third person to whom it was delivered over by the party having the lien, purporting to transfer his right of lien to the other, as his servant, and in his name, and as a con- tinuance in effect of his own possession ; ^ j-et it was quite clear that a lien could not be transferred by the tortious act of a broker pledging the goods of his principal, which he had no authority' to do. That in Daubigny v. Duval, though Lord Kenyon was at first of opinion tliat there ought to have been a tender to the pawnee of the sum for which the goods had been pledged by the factor, within the extent of his lien, in order to entitle the plaintiff to recover ; j-et after the rest of the court had expressed a different opinion, on which he at that time only stated his doubts, he appears in the subsequent case of Sweet and another, Assignees of Gard v. JPym, 1 East, 4, to have fully acceded to their opinion ; for he there states that " the right of lien has never been carried further than while the goods continue in the possession of the party claiming it." And afterwards he says, " In the case of JS/n- lochy. Graig, 3 Term Rep. 119, afterwards in Dom. Proc. ib. 786, where I had the misfortune to differ from my brethren, it was strongly insisted that the right of lien extended beyond the time of actual pos- session ; but the contrary was ruled by this court, and afterwards in the House of Lords." His Lordship then, after consulting with the other judges, declared that the rest of the court coincided with him in opinion, that no lien was transferred by the pledge of the broker in this case ; and added, that he would have it fully understood that his observations were ap- 1 One who haa a lien has no interest which can be taken on execution against him. Legg v. Evans, 6 M. & W. 36; Lovett v. Brown, 40 N. H. 511. Otherwise in case of a pledgee. In re Rollason, 34 Ch. D. 495. — Ed. 2 See Jaquith T. Am. Exp. Co., 60 N. H. 61. — Ed, BOAEDMAN V. SILL. 191 plied to a tortious transfer of the goods of the principal by the broker undertaking to pledge them as his own ; and not to the case of one who, intending to give a security to another to the extent of his lien, delivers over the actual possession of goods, on which he has the lien, to that other, with notice of his lien, and appoints that other as his servant to keep possession of the goods for him ; in which case he might preserve the lien. Pee Curiam, liule refused.^ BOARDMAN v. SILL. Nisi Pkius. 1808. [Reported 1 Camp. 410, note.'] Trover for some brandy, which laj' in the defendant's cellars, and which, when demanded, he had refused to deliver up, saying it was his own property. At this time certain warehouse rent was due to the defendant ou account of the brandy, of which no tender had been made to him. The Attorney- Ge7ieral contended that the defendant had a lien on the brandj- for the warehouse rent, and that till this was tendered, trover would not lie. But Lord Mllenborough con- sidered, that as the brandy had been detained on a diflferent ground, and as no demand of warehouse rent had been made, the defendant must be taken to have waived his lien, if he had one, — which would admit of some doubt. The plaintiff had a verdict.* WHITE V. GAINER. Common Pleas. 1824. [Reported 2 Bing. 23.] Trover for eight pieces of cloth. At the trial before Park, J., Gloucester Lent Assizes, 1824, it appeared that on the 9th of July, 1822, Symes, a clothier, hearing that a bailiff was in his house, went to sleep at the house of the defendant, Gainer (a dyer and miller of cloth), to whom he was considerably indebted for work done in the course of 1 See Story, Bailm. §§ 325, 326. " In McCombie v. Dames, the decision went so far as to hold that a pledge by a factor was so totally tortious as not even to transfer the lien which the pledgor himself had. This decision is made no longer law by the earlier Factors Acts. . . . And by the second section of that Act (4 G. IV. c 83), the legislature repealed McCombie v. Davies in so far as it was applicable to those taking pledges from consignees ; but that Act did not alter the established law as to pledging, with regard to others than consignors and consignees." Cole v. North Western Bank, L. R. 10 C. P. 354, 364, 367. —Ed. 2 See Lord v. Jones, 24 Me. 439. — Ed. 192 -WHITE V. GAINEE. his business. The next day S3'mes, by way of securing Gainer, sold to him the pieces of cloth in question, together with several others, delivering a biU of parcels bearing date a few days before. On the first of August a commission was issued against Symes, who was de- clared a bankrupt on the 19th. In September, the plaintiffs demanded the cloths in question of the defendant, who refused to deliver them up, saying, "He might as well give up every transaction of his life," but making no demand. In a conversation in the March ensuing he said, " The thing might have been settled long ago if the assignees would have allowed him his de- mand for milling and rowing the eight pieces of clotli." The value of the cloths in dispute was £98 3s., and the defendant's general balance against Symes for milling, dyeing, and rowing cloth, £188 lis. It was contended at the trial that the defendant's lien, as far as he had any, was merged in the purchase of the cloth ; and that at all events he had waived it by not making any claim in respect of it when the cloth was demanded. The learned judge directed the jury that the plaintiffs, pre- viously to their demand, ought to have tendered at least the amount of the lien for workmanship on the cloths in dispute ; but he reserved the point as to the merger of the lien for the consideration of this court. A verdict having been found for the defendant, on the issue as to these eight pieces of cloth, Taddy, Serjeant, now moved for a rule nisi to set aside this verdict and have a new trial, on the grounds urged at the assizes ; and he cited Boardman v. Sill, 1 Camp. 410, to show that the defendant had waived his lien, by not specifying and insisting on it at the time the cloths were demanded of him. Best, C. J. I agree in the law as laid down in Boardman v. Sill, but not in the application of it now proposed. In that case it was holden that if a party, when goods are demanded of hiin, rests his re- fusal upon grounds other than that of lien, he cannot afterwards resort to his lien as a justification for retaining them. Therefore if, even in this case, the defendant, when applied to to deliver the goods, had said, " I bought them, they are my property," I should have holden there was a waiver of his lien ; but he said no such thing, but only, "if I deliver them, I may as well give up every transaction of my life," Now, his business was that of a miller of cloth, and if he had given up his lien in this instance, he might have been called on to do so always ; he therefore refused to deliver them, and it was then for the plaintiffs to consider what ofier they should make. It has been urged that he bought them after the bankruptcy. If that were so, he stands in the same situation as every other purchaser under the same circum- stances ; the purchaser is liable to restore them to the assignees, but the assignees must take them subject to such rights as had accrued previously to their claim, and the bankruptcy of the bailor will not de- prive the defendant of the right to which he is entitled, — the right of lien. It might have been otherwise if the defendant, when called on to JACOBS V. LATOtTE. 193 sniTender the goods, had relied on the purchase ; but this was not the case, and the verdict must stand. Park, J. If the defendant, on the first conversation, had said any- thing iuconsistent with the claim of lien there might have been some ground for this application ; but the transactions of his life were milling and rowing cloth, and those were the transactions which he said he might as well give up, if he gave up tliis. The subsequent conversa- tion puts the matter out of doubt, when he declared the thing might have been settled, if his demand for milling and rowing the cloth had been allowed; and this clearly shows he never intended to relinquish his lien. Bdrkough, J. If he had said he purchased the cloth, and that the lien formed part of the price, there might be some ground for the motion. But it is clear the fact was not so. Bule refused. JACOBS V. LATOUR. Common Pleas. 1828, [ReporUd 5 Biiig. 130.] Trover for the conversion of certain race-horses. At the trial before Burrough, J., last Hertford assizes, it appeared that these horses had been placed by Lawton with the defendant Messer, a trainer, and were by him kept and trained for running. Lawton being indebted to Messer for his services in this respect, and for the keep of the horses, and being insolvent, Messer obtained a judgment against him on the 5th of May, 1827, for £227, upon which he issued Sifl. fa., on tiie 16th of the same month, returnable on the 23d. The levy was made on the 16th, and under it the horses in question, which had never been out of bis possession, were sold to Messer for £156. On the 22d of May, 1827, a commission of bankrupt having issued against Lawton, upon an act of bankruptcj' committed in February, 1825, the plaintiff, as his assignee, brought this action to recover the value of the before-mentioned horses. It was contended, on the part of the defendants, that if the execution would not avail against the commission of bankrupt, at all events the defendant Messer had a lien for his services in training the horses, which entitled him to keep them till his account was settled ; a verdict, however, was found for the plaintiff, with leave for the defendants to move to set it aside on this ground, and enter a nonsuit instead. Ac- cordingly Wilde, Serjt., obtained a rule nisi to this effect, citing Chase V. Westmore, 5 M. & S. 180. Andrews, Serjt., for the plaintiff. Wilde, for the defendant. 13 194 SCAKFB V. MORGAN. Best, C. J. This was an action of ti-over against a stable keeper and trainer, to recover ttie value of certain horses placed with him for the purpose of being trained. The first question in the cause is, Whether the defendant had any lien on the horses ; and the second, Whether, if he had a lien, it was destroyed by bis taking the horses in execution. It is not necessary for us to enter on the first question, because we are of opinion that if he had any lien, it was destroyed hy the execu- tion at his suit. A lien is destroyed if the party entitled to it gives up his right to the possession of the goods. If another person had sued out execution, the defendant might have insisted on his lien. But Messer himself called on the sheriff to sell ; he set up no lien against the sale ; on the con- trary, he thought his best title was by virtue of that sale. Now, in order to sell, the sheriff must have had possession ; but after he had possession from Messer, and with his assent, Messer's subsequent pos- session must have been acquired under the sale, and not by virtue of his lien. As between debtor and creditor the doctrine of lien is so equitable that it cannot be favored too much ; but as between one class of cred- itors and another there is not the same reason for favor. Mule discharged} SCAEFE V. MORGAN. Exchequer. 1838. [Reported iM.SrW. 270.] Teoveb for a mare. Pleas, first, not guilty ; secondly, that the mare was not the property of the plaintiff. At the trial before Parke, B., at the last Assizes for the county of Suffolk, it appeared that the mare in question had been sent on more than one occasion to the premises of the defendant, who was a farmer, to be covered bj' a stallion belonging to him, and the charge of lis. for the last occasion not having been paid, the defendant refused on demand to deliver up the mare, claim- ing a lien not only for the lis., but for a further sura amounting alto- gether to £9 7s. A^d., for covering other mares belonging to the plaintiff, and including also a small sum for poor-rates; on which demand and refusal, the plaintiff, without making any tender of the lis., brought the present action. It also appeared in evidence that the contract in question was made and executed on a Sunday. The learned judge, on these facts being proved, directed the jury to find a verdict for the 1 But see Lambert v. Niclclass, 45 W. Va. 527. As to loss of lien by taking other security, see Angus v. MacLachlan, 23 Ch. D. 330; In re Taylm, [1891] 1 Ch. 590. — Ed. SCARFE V. MORGAN. 195 plaintiff for £25, the value of the mare, giving libertj' to the defendant to move to enter a nonsuit on the three following points, which were raised at the trial : — First, whether this was a case in which any lien would exist at all; secondh', if it could, whether the defendant had waived his lien for this particular charge by insisting on payment of his whole demand ; and thirdly, wliether this contract, being made and executed on a Sunda}-, was void by the statute 29 Car. 2, c. 7. Byles having, in Easter Term, obtained a rule nisi accordinglj^, — Kelly and Chinning showed cause. Byles and 0' Medley, contra. Parke, B. With respect to the principal point in this case (which has been very well argued on both sides) as to the right of lien on a mare for the expense of covering, we will take time to consider our judgment; but, assuming tliat there was a lien, the court have no diffi- culty as to the other two points. As to the first point argued by Mr. Kelly, the court are unanimous in considering that if the defendant had a lien, he did not waive it under the circumstances of this case, by claiming to hold the mare not merely for the expense of covering her, but also for the expense of covering other mares belonging to the same plaintiff, and also for some payments made in respect of poor-rates which he liad against him. The only way in which such a proposition could be established, would be to show that the defendant had agreed to waive the lieu, or that he had agreed to waive the necessity of a tender of tlie minor sum claimed to be due. Loolting at the mode in which he made the claim, and at the ground on which he considered it to be made, I think it is clear he has not waived the lien, or excused the necessity of making a tender ; for when the demand was made he said, " I have a general account with j'ou, on which a balance is due to me of so much," and part of it was, particularlv, a charge of lis. for covering this mare. The cases referred to by Mr. Kelly seem to be distinguishable from the present. In the case of J3oardman v. Sill, the defendant did not mention his lien at all, but claimed to hold the goods on the ground of a right of property in them, and did not set up any claim of lien at all. In Knight \. Harrison, the ground of refusal was, that the right of propertj' was in another person as to the goods in qnestion, and that he had a general lien for expenses on those goods. Neither of those two cases appears to me to apply to the present. In this case it would be strange to say that the defendant meant to waive his lien of the lis. when that was one of the things he said he would hold the mare for, and it would be equally strange to say that he meant to excuse the tender of that sum, when no tender was made of any sum at all. I do not mean to say that such circumstances may not occur as would amount to the waiver of a lien, and of the tender, but that a great deal more must have passed than was proved to have passed on the present occasion. If he had said, " You need not trouble yourself to make a tender of the sum for which I have a lien, and I shall claim to hold the mare for it," the plaintiff would then be in the 196 SCARFB V. MORGAK. same situation as if a tender had been made ; but we think the defend- ant cannot be deprived of his right of holding the property on which he had a lien, by anything that has passed on the present occasion. Then, as to the other objection, that this was an illegal contract, on the ground of its having been made on a Sunday ; we are of opinion that this is not a case within the statute 20 Car. 2, c. 7, which only had in its contemplation the case of persons exercising trades, &c. on that day, and not one like the present, where the defendant, in the ordinary calling of a farmer, happens to be in possession of a stallion occasion- ally covering mares ; that does not appear to me to be exercising any trade, or to be the case of a person practising his ordinary calling. But independently of that consideration, this is not the case of an executory contract ; both parties were in pari delicto — it is one which has been executed, and the consideration given ; and although in the former case the law would not assist one to recover against the other, yet if the con- tract is executed, and a property' either special or general has passed thereby, the property must remain ; and on that ground also, this lien would be supported, though it were or might have been illegal to have performed this operation on a Sundaj-. It seems to me, however, that it was not so; there is nothing like a trade, and no direct dealing on a Sunday. The only point, therefore, now to be determined, is, whether the defendant had any lien at all of this description ; and upon that we will take time to consider. BoLLAND, B. I am of the same opinion in this case as my Brother Parke, as to these two points ; and I confess I have a very strong opinion in favor of the defendant on the other. Alderson, B. Upon the two points on which the court has given judgment, I entirely concur. It seems to me a monstrous proposition, to say that a party who claims in respect of two sums to detain a mare, is to be supposed to have waived his right to detain her as to one. The more natural conclusion is, that the defendant intended to act upon both ; if so, and if the other party is informed of that, it then became his duty to consider whether he would tender one or the other ; and with respect to the observation that has been cited as having fallen from Lord Tenterden, that if the defendant had given notice, the plain- tiff would have paid, an equallj' strong observation appears to arise the other way ; for probably' had the plaintiff said, "I tender you this sum, which I admit I am bound to pay," it might cause the defendant to reflect whether he really had a right to detain the mare as to the other. It seems to me you cannot saj', that because the party claims more than it may be ultimately found he had a right to, he would not have a right to a tender of the sum which the other ought to pay. Gurnet, B., concurred. Cur. adv. vult. The judgment of the court on the principal point was delivered in this term by — Parke, B. The court have already disposed of two questions argued SCAEFB V. MORGAN. 197 in this case. The first, whether the defendant's lien on the plaintiff's mare, if it existed, was waived by a claim to retain her, not merely for the amount due on the particular occasion, but also on others, as well as for a debt of a different kind. The second, whether the circum- stance, that the transaction occurred on a Sunday, rendered the lien invalid. We expressed our opinion on the first point, that there was no waiver of the lien, nor any dispensation with the tender of the amount due on that occasion ; and on the second, that this was not a transaction in the course of the ordinary calling of the defendant ; and if it was, that still the lien would exist, because the contract was exe- cuted, and the special property had passed by the delivery of the mare to the defendant, and the maxim would apply, in pari delicto potior est conditio possidentis. The only remaining question upon which the court reserved its opinion is, whether the defendant is entitled to a specific lien on the animal, the subject of the action. The jury have found that it was delivered into his possession for the purpose mentioned ; that the sum IS still due; and that the mare remained in the defendant's posses- sion after the claim had arisen and was due. The case is new in its circumstances, but must be governed by these general principles which are to be collected from the other cases in our books. The principle seems to be well laid down in Bevan v. Waters, by Lord Chief Justice Best, that where a bailee has expended his labor and skill in the improvement of a chattel delivered to him, he has a lien for his charge in that respect. Thus, the artificer to whom the goods are delivered for the purpose of being worked up into form ; or the farrier by whose skill the animal is cured of a disease; or the horse-breaker by whose skill he is rendered manageable, have liens on the chattels in respect of their charges. And all such specific liens, being consistent with the principles of natural equity, are favored by the law, which is construed liberally in such cases. This, then, being the principle, let us see whether this case falls within it ; and we think it does. The object is that the mare may be made more valuable b^- proving in foal. She is delivered to the defend- ant that she may by his skill and labor, and the use of his stallion for that object, be made so ; and we think, therefore, that it is a case which falls within the principle of those cited in argument. But there is another difficulty which, unless answered, would prevent the lien from taking efffect. It is clear that, even in such cases, if the nature of the contract applicable to such skill or labor be inconsistent with the lien, that the latter, which is but a stipulation annexed im- pliedly to the contract, cannot exist. Prior to the case of Chase v. Westmore, the general opinion had been that there could be no lien where there was anj' express contract at all. That case, however, decided, that where there was an express contract, but containing no stipulation inconsistent with the lien, it might still exist. In the case 198 SCAEFB V. MORGAN. of the liverj'-staWe keeper there is such an inconsistenc}', because, by the nature of the contract itself, the possession is to be redelivered to the owner whenever he may require it. In fact, that falls within the principle of the time of payment being, by the contract itself, pos1> poned to a period after the redeliverj- of the chattel. The doubt as to the case of the trainer, in Jacobs v. Z/Otour, turns on this. There the question is, whether in the contract for training, there is a stipulation for the redelivery of the horse trained for the purpose of racing. So, again, if a time be fixed for the payment ; for there the lien is inconsistent with the right of intermediate redeliver}-.* This case, however, presents no such difficulty ; there does not appear here any such inconsistency. The mare is delivered for the purpose of being covered, and for a specific price to be paid for it. In this there is nothing inconsistent with the implied condition that the defendant shall detain her till payment. And on the contrary-, accord- ing to Cowper v. Andreies, Hob. 41, cited in Chase v. Westmore, the word " for" works b}- condition precedent in all personal contracts, as, if I sell j'ou my horse for ten pounds, you shall not take my horse except j'ou paj- the ten pounds. So that, in this case, the lien is more consistent with this contract than the denial of it. It occurred to us in the course of the discussion which was verj' ably conducted on both sides, that there was a difficulty arising out of the circumstance that this being a living chattel, might become expensive to the detainer, and that the allowance of such a lien would raise ques- tions as to who was liable to feed it intermediately. But Mr. Byles answered this difficult}' satisfactorily, by referring us to the analogous case of a distress kept in a pound covert, where he who distrains is compellable to take reasonable care of the chattel distrained, whether living or inanimate, and to the case of a lien upon corn, which requires some labor and expense in the proper custod}- of it. Other cases were cited in the argument, but they were cases of gen- eral lien, which clearl}- turn upon contract or usage of trade, in which he who seeks to establish such contract or usage ultra the gener.al law, is held to strict proof of the exception on which he relies. These are wholly distinguishable from this case. Upon the whole, we think this lien exists, and judgment must be for the defendant. Hule absolute to enter a nonsuit.'^ 1 See Crawshay v. Homfray, 4 B. & Aid. 50. — Ed. 2 See Kerford v. Mondel, 28 L. J. n. s. 303; Loewenberg v. Arkansas Ry. Co., 56 Ark. 439; Sutton v. Slephan, 101 Cal. 545; Thatcher v. Harlan, 2 Houst. 178; Hamil- ton V. McLaughlin, 145 Mass. 20. " The principles invoked on both sides are essentially those of equitable estoppel. Each party contends tliat the other neglected to speak when it was his duty to speak, whereby the other was intentionally misled into doing or omitting to do what otherwise he would not have done or omitted. These equitable principles are enforced in actions at law when they go to the whole action. When the facts on which a lien rests are as well known to the plaintiff as to the defendant, and the MULLINBE V. FLOKENCB. 199 MULLINER V. FLORENCE. Court of Appeal. 1878. [Reported 3 Q. B. Div. 484.] Action for the detention and conversion of horses, carriages, and harness. At the trial at the Warwickshire Summer Assizes, 1877, before Pol- lock, B., the following facts were given in evidence. The defendant kept an inn at Coventry, and at the end of September, 1876, one Ben- nett came to the defendant's inn and stayed there as a guest until the middle of January, 1877, when he quitted the inn. Bennett was re- ceived by the defendant as an ordinary guest, and at the time of his departure from the inn he owed the defendant £109 for lodging, food, and entertainment. In November, 1876, a pair of horses, wagonette, and harness came to the defendant's inn for Bennett ; he told the de- fendant that he had bought them from the plaintiff who lived at Leam- ington. The horses, wagonette, and harness were not taken in at livery, but were received by the defendant as a part of the property of his guest Bennett. At the time when the latter quitted the inn, he was in debt to the defendant for the keep of these horses, and the de- fendant claimed on this account from him £22 10s. Bennett left the horses, wagonette, and harness behind him at the defendant's inn. It was afterwards ascertained that Bennett was a swindler, and that he had bought the horses from the plaintiff upon the terms that if they should not be paid for they should be returned to him free of expense. Bennett did not pay the price for the horses. The plaintiff demanded from the defendant possession of the horses, wagonette, and harness, and tendered to him a sum of £20 for the keep of the horses ; but the defendant refused to give up the horses, wagonette, and harness. The defendant sold the horses by auction for £73, but he retained posses- sion of the wagonette and htirness. Bennett was afterwards convicted of fraud, and sentenced to penal servitude. The defendant claimed to keep the proceeds of the sale, and also to retain the wagonette and harness, on account of the sums of £109 and £22 10s. Upon these facts the learned judge directed judgment to be entered for the defendant. defendant simply refuses to give up the property without alleging any reason, we do not think that a lien, if one exists, is thereby waived. It may be that, if the lien is unknown to the plaintiff, and the defendant knows or has reason to know this, it is the defendant's duty, when a demand is made upon him for the property, to give the plaintiff notice of the lien if he relies upon it ; and it has been often held that, when the defendant puts liis refusal upon a ground which is inconsistent with a lien, he cannot defeat an action by setting up a lien of which the plaintiff was ignorant at the time he brought the action." Field, J., in Fowler v. Parsons, 143 Mass. 401, 407. — Ed. 200 MULLINEB V. FLOKENCB. /Sir James Stephen, Q. C. , and J. /S. Dugdale, for the plaintiff. Mellor, Q. C, and Graham, for the defendant. Bramwell, L. J. The first question for our decision is, what was the innkeeper's lien? Was it a lien on the horses for the charges in respect of the horses, and on the carriage in respect of the charges of the car- riage, and no lien on them for the guest's reasonable expenses, or was it a general lien on the horses and carriage and guest's goods conjointly for the whole amount of the defendant's claim as innkeeper? I am of opinion that the latter was the true view as to his lien, and for this reason, that the debt in respect of which the lien was claimed was one debt, although that debt was made up of several items. An innkeeper may demand the expenses before he receives the guest, but if he does not, and takes him in and finds him in all things that the guest re- quires, it is one contract, and the lien that he has is a lien in respect of the whole contract to paj- for the things that are supplied to him while he is a guest. If this was not the case, a man might go to an hotel with his wife, and then it might be said that the innkeeper's lien was on the guest's luggage for what he had consumed, and on the wife's lug- gage for what she had had. The contract was, that the guest and his horses and carriage shall be received and provided for ; there was one contract, one debt, and one lien in respect of the whole of the charges. The cases cited on behalf of the plaintiff are really against him. In order to justify the argument for him, it ought to be shown that if fifty pieces of cloth are sent to a dyer under one contract, he would only have a lien on each piece for the work done in respect of it. It seems to me, therefore, in this case the lien is a general lien. So far our judgment is for the defendant. On the second question, namely, whether the sale was wrongful, I think the learned judge was wrong. The defendant, who had onl3' a lien on the horses, was not justified in selling them, and he has there- fore been guilty of a conversion, and that enables the plaintiff to main- tain this action for the proceeds of the sale. The verj' notion of a lien is, that if the person who is entitled to tlie lien, for his own benefit parts with the chattel over which he clainjp to exercise it, he is guilty of a tortious act. He must not dispose of the chattel so as to give some one else a right of possession as against himself The lien is the right of the creditor to retain the goods until the debt is paid. It is qnite clear that the defendant could not use the horses, j-et it is sug- gested that he can sell them and confer a title upon another person. Several cases were cited, but none of them are inconsistent with the present. Those mainl}- relied on were Donald v. Suckling, Law Rep. 1 Q. B. 585, and Johnson v. Stear, 15 C. B. (N. S.) 330 ; 33 L. J. (C. P.) 130. In the latter case it was no doubt held that the sale by the pledgee of an article pledged to him was tortious, and that the action could be maintained. But looking at the substance of the thing, and at the decision of HaUiday v. Holgate, Law Rep. 3 Ex. 299, in all these cases the courts held that although the pledgee in repledging MULLINER V. FLORENCE. 201 the article had exceeded what he had a right to do, j'et inasmuch as there remained in the pledgee an interest, not put an end to bj the unauthorized pledge, he could transfer the pledge to another per- son. In Jo/mson v. Stear it certain]}- was held to be a tortious con- version. In the other two cases it was held not to be so. What in substance those cases decided was, that as the interest under the orio-- inal pledge was not determined, the immediate right to the possession of the chattels was not re-vested in the pledgor so as to give him a right of action. Those cases, however, were cases between the pledgor and the pledgee, and have nothing whatever to do with the present case. The interests of the pledgee there could be assigned, but here the parting with the chattels subject to the lien destroyed it. The third question argued was as to the amount of damages. The general rule is that where a person converts property to his own use bj' selling it and receives the price, he is liable for the value of the article, and he cannot set off. Now what were the authorities cited to the con- tary? Chinery v. Viall, 5 H. <& N. 288 ; 29 L. J. (Ex.) 180, is dis- tinguishable on the ground that the case was decided on its special facts. The ground of the decision was that " as the vendor could not sue for goods bargained and sold, the result would be that he could not in any form of action recover the price ; and it would be singular if the same act which saved the vendee the price of the sheep should vest in him a right of action for the full value without deducting the price." I cast no doubt on that case ; the ground on which it is based is different. The next case was Brierley v. Kendall, 17 Q. B. 937; 21 L. J. (Q. B.) 161. That was an action of trespass, and the plaintiff had mortgaged the goods wrongfully seized by the defendants as a security for money advanced by them to him. Another case was Johnson v. Stear. I only wish to add one word as to that case. The court there held that the action was maintainable, but I see that Black- burn, J., in his judgment in Donald v. Suckling, at p. 617, doubts whether that case was rightly decided, because he says, " This can be reconciled with the cases above cited, of which Fenn v. Bittleston, 7 Ex. 152 ; 21 L. J. (Ex.) 41, is one, by the distinction that the sale, though wrongful, was not so inconsistent with the object of the con- tract or pledge as to amount to a repudiation of it, though I own that I do not find this distinction in the judgment of Johnson v. Stear." So that Blackburn, J., doubts whether the Court of Common Pleas were right in that case in giving the plaintiff even nominal damages. Whether that decision is right or not, the plaintiff clearly was not en- titled to substantial damages. The reasoning in that case, however, is not applicable to the present. But there is a remark of Williams, J., in his judgment, at p. 134, which I think is applicable ; it is this : "The true doctrine, as it seems to me, is that whenever the plaintiff could have resumed the property, if he could lay his hands on it, and could have rightfully held it when resumed as the full and absolute owner, he is entitled to recover the value of it as damages in the action of trover 202 MTTLLINER V. FLORENCE. which stands in the place of such resumption." Now in this case if the plaintiff, after the sale of the horses, had thought fit to go to the vendee and saj' to him, " Those horses are mine," and the vendee liad refused to give them up, he could have maintained an action against the vendee for the full value of the horses ; but instead of acting in this manner he has treated the sale by the defendant as a conversion. He is not to be worse off because he has brought his action against the defendant instead of against the vendee. It is said if the plaintiff suc- ceeds that the defendant's lien would be useless to him, and that the plaintiff would be better off than he was before the sale of the horses by the defendant. I do not think there is anything unreasonable in holding the defendant liable if the defendant was not bound to feed the horses. In a case of a distress damage feasant before the recent statute (12 & 13 Vict. c. 92) the distrainor was not bound to feed the animals distrained. It seems to me, therefore, that the learned judge was wrong. I think that we ought to reverse the judgment, and give the plaintiff judgment for £73, but as the defendant has a lien on the carriage and harness for the whole bill, and that amount was not tendered, the de- fendant is entitled to retain his judgment as to the wagonette and harness. Under these circumstances the judgment will be entered for the plaintiff for £73, and as to the rest of the case the judgment will stand for the defendant. Brett, L. J. This was an action against the defendant in respect of a wrongful sale of the plaintiff's horses, and in respect of a wrongful withholding from him of a carriage and harness. The defence set up is that the defendant held the horses and the carriage and harness under a lien, and that the plaintiff therefore could not maintain the action in respect of any of them. The lien claimed by the defendant was that of innkeeper. The first question is, What is the extent of an innkeeper's lien, and to what goods did the lien attach? I am of opinion the lien attached both on the horses and the carriage and harness for the full amount of the innkeeper's bill. "Where the innkeeper in the course of his ordinary business receives not only travellers but also their horses and carriages, he has an innkeeper's lien for his whole claim. He has one obligation, he is bound to receive the traveller and any horses or carriages he may bring with him ; and as there is but one business, one obligation, and one contract, according to the custom of England it gives him one lien, and the lien cannot be split up and a separate lien claimed in respect of separate chattels. Therefore here the defendant has a lien for the whole bill incurred bj' Bennett, and that lien is on the carriage and horses and harness. With regard to the horses, the defendant has sold the horses ; it was an unjustifiable sale ; he had no right to sell them, and as he had only a lien, the sale destroyed the lien. If he had parted with the posses- sion in the horses, he would have lost the lien, and so in the case of a MULLINER V. FLOBENCE. 203 wrongful sale the lien is destroj-ed. With regard to the carriage and harness, the defendant has a lien on them for his, wliole account. The plaintiff was willing to paj' some portion of the bill, but he never was willing to pa}' the whole amount. Then it was said, although the de- fendant improperly sold the horses, j-et the plaintiff is not entitled to maintain the action, because the defendant had a lien on them, and the plaintiff has not tendered the amount of the lien. But this argument is not tenable, for by the sale the lien was destro3-ed, and there is no debt due from the plaintiff to the defendant. It does not seem to me to be necessary- to decide whether the cases cited were rightly- decided or not. Donald v. Suckling, Law Rep. 1 Q. B. 585, and Salliday v. Holgate, Law Rep. 3 Ex. 299, were cases not of lien, but where the property had been pledged with a power of sale ; and the judgments in these cases were founded on the distinction which existed between the cases of pledge and lien, therefore those cases signify- nothing, this not being a case of pledge. With regard to Johnson v. Stear, 15 C. B. (N. S.) 330 ; 33 L. J. (C. P.) 130, that also was the case of property pledged, and it is no authority in the present instance. At all events, I should saj' that those cases were only authorities if the action had been brought hy Bennett, but none whatever as against the plaintiff who is seeking to recover his own property. With regard to the damages, even if Johnson v. Stear be an au- thority against an action by Bennett, it is no authority as against the plaintiff, who has an absolute right of propert}', and as there has been a wrongful sale he is entitled to recover full damages. However, Johnson V. Stear would require very great consideration before it was acted upon. As to the plaintiff's claim to the carriage and harness, the defendant had a lien on the carriage and harness, and the plaintiff cannot recover as to them, but he is entitled to recover the sum of £73 in respect of the horses. In the result the plaintiff will have judgment for £73, which will carry the general costs of the cause, the defendant's costs to be de- ducted ; and with respect to the appeal, as each party has substantially succeeded, no costs of the appeal will be allowed. CorxoN, L. J. The question is, what is the defendant's lien as inn- keeper? Is it a lien as to the whole bill in respect of all the things brought by the guest to the inn, or is it a separate lien as regards the horses and also with respect to the harness and carriage? The inn- keeper has a general lien for the whole amount of his bill. As to the horses, harness, and carriage, there would be a lien for any special expenditure, and there is no reason for exempting the horses, harness, and carriage from the general lien an innkeeper has in the guest's goods by the general law. The innkeeper is bound to receive the horses, harness, and carriage wifb the guest as much as he is bound to receive the guest himself — the liability of the innkeeper with re- spect to them is the same as his Uabihty with respect to the othiM- goods of the guest, and there is no reason for excluding the claim of 204 HANNA V. PHELPS, the innkeeper althongb the horses, harness, and carriage are not re- ceived in the dwelling-house, but in adjoining buildings. There is no authority* for saj'ing that the innkeeper's lien does not extend to the horses, harness, and carriage the guest brings with him as much as to the other things of the guest. With regard to the harness and carriage, although the plaintiff ten- dered the amount due in respect of the horses, the defendant had a lien on the harness and carriage, and as to them the defendant is entitled to our judgment. As to the horses, it was not contended that the sale was right, but the question was argued that as the plaintifl" could not have taken them out of the hands of the defendant without satisfying his lien, he could not recover substantial damages. I do not accede to this argument. The defendant as an innkeeper has only a right to keep the horses until his bill is paid ; he has parted with his possession and put an end to his right. The plaintiff therefore has an absolute title to the horses, and is entitled to such damages as amount to the real value. Although the defendant received the horses at the inn, and the innkeeper's lien attached, j^et the lien is lost by the act of the defendant, and the inn- keeper cannot claim anj-thing as against the plaintiff as there is no debt owing from one to the other. Johnson v. Stear was decided on the principle that the person who sold the goods had some interest in them, and that case is different from the present, where the person has only a right of detainer. Erie, C. J., says, " The deposit of the goods in question with the defendant to secure paj-ment of a loan by him to the depositor on a given day, with a power to the defendant to sell in case of default on that day, created an interest and a right of property in the goods which was more than a mere lien." What, therefore, Erie, C. J., saj's is, assuming that the sale was wrongful, the defendant had an interest in the goods, and the owner can therefore only recover the real damage that he has actually sustained. The judgment, therefore, will be entered for the plaintiff in £73, and for the defendant so far as relates to the harness and carriage. Judgment accordingly. HANNA V. PHELPS. SUPKEME CODET OF JUDICATURE OF INDIANA. 1855. [Reported 7 Ind. 21.] Appeal from the Wabash Circuit Court. Davison, J. Assumpsit. The complaint is that Phelps, the plaintifl below, on the first day of December, 1849, delivered to Hanna and Burr, who were then engaged in the business of rendering lard from hogs' heads by steam, and barrelling the lard so rendered for hire at the HANNA V. PHELPS, 205 town of Wabash, three thousand hogs' heads, which they agreed to ren- der into lard, and barrel the same for the plaintiff, within a reasonable time, &c., for which service he agreed to paj' them a reasonable com- pensation, &c. It is averred that the defendants have failed to perform the agreement on their part, &c. Pleas: 1. The general issue ; 2. Performance; 3. That the plaintiff was indebted to the defendants $200 for rendering lard and barrelling the same, &c., which sum exceeds in amount their indebtedness to him, &c. Issues being made on these pleas, the cause was tried by the court, who found for the plaintiff. New trial refused, and judgment. The court, upon the defendants' motion, gave a written statement of the facts on which its finding was based, and of the conclusions of law arising on the facts. That statement is as follows : — 1 . The plaintiff delivered to the defendants, as bailees, two thousand one hundred hogs' heads, out of which lard was to be rendered by them for him, which heads each produced four pounds of lard, making eight thousand four hundred pounds. 2. The defendants delivered to the plaintiff, at Jackson's warehouse, in the town of Wabash, in twenty-three barrels, 5,162 pounds of lard, leaving unaccounted for and undelivered 3,238 pounds. The lard was worth 5 cents per pound, making for the last-named quantitj- in money $161.90. As a compensation for rendering said lard the defendants were entitled to $84, leaving a balance due the plaintiff of $77.90. 3. The plaintiff, after the delivery- of the twent^'-three barrels, and before the commencement of this suit, notified the defendants to deliver to him all the lard made from said heads ; but thej' declined to deliver any more lard. He did not at any time before the suit either pay or tender to them an^' sum for their services, nor was any demand made b}- them for such services. When the twenty-three barrels were deliv- ered, the lard was subject to their claim for rendering the same, amount- ing to $51.63, which amount was never paid to them. The delivery at Jackson's warehouse was with bis consent. These were all the facts proved in the cause ; and upon them the court, as a conclusion of law, decided that no payment or tender for services in rendering the lard was necessary before suit. Was this decision correct? Generally speaking, if a chattel delivered to a part3' receive from his labor and skill an increased value, he has a specific lien upon it for his remuneration, provided there is nothing in the contract inconsistent with the existence of the lien. And such lien exists equally whether there be an agreement to pay a stipulated price for " the labor and skill," or an implied contract to pay a reasonable price. The present is one of the cases in which liens usually exist in favor of the party who has bestowed services on property delivered to him for the purpose. And unless the record discloses facts or cir- cumstances sufficient to produce the inference that the defendants waived their lien before the institution of this suit, they were not com- pelled to give up the property when the plaintiff demanded it without the 206 HANNA V. PHELPS. payment or tender of a reasonable compensation for rendering and barrel- ling the lard. If the defendants, at the time of the demand, had refused, on the ground of their lien, to part with the property, the law of this case would be clearly in their favor ; but here the plaintiff's demand was answered by an absolute refusal to deliver any more lard. We are therefore to inquire whether that refusal waived the lien. Upon this subject the authorities ai-e not uniform. In England the rule seems to be that a person having a lien upon goods does not waive it by the mere fact of his omitting to state that he claims them in that right when they are demanded. But if a different ground of retention than that of the lien be assumed, the lien ceases to exist. White V. Gainer, 9 Moore, 41 ; 2 Bing. 23 ; 1 Carr. & P. 324 ; 1 Camp. 410. It is, however, contended that the refusal of the defend- ants, to have shielded them, should have been qualified by their claim of a lien. There is authority in support of that position. Dow v. JMorewood, 10 Barb. 183, was replevin for twenty-one cans of oil. In that case it was held " that the defendant having upon demand made, refused to deliver the oil to the plaintiff without setting up any lien thereon, waived his right to set up a lien afterwards for freight, &c. ; that he could not be allowed to deny the plaintiff's title before suit brought, and afterwards defeat a recovery by setting up a lien." "We are inclined to adopt this rule of decision. An unqualified re- fusal, upon a demand dulj* made, is evidence of a conversion; because it involves a denial of any title whatever in the person who makes the demand. In the case before us the defendants " declined to deliver any more lard." This was, in effect, an assumption that they had in their possession no more belonging to the plaintiflT. At least he had a right to infer from their answer to his demand that the}- would deliver to him no more lard unless compelled to do so by action at law. And having thus assumed a position relative to the property inconsistent with his title, he had, further, the right to infer that a tender to the de- fendants for their services would be unavailing. We are of opinion that the facts proved are suflBcient to sustain the judgment. There is a point made as to the jurisdiction of the court. This case was tried b^' the Hon. Thomas S. Stanfield, judge of another circuit, at a special term held in June, 1853 ; and it is contended that all the steps required by law to authorize such special term have not been taken. 2 R. S., p. 5, s. 3. We have heretofore decided that the above special term was held in conformity with the statute just cited. Murphy V. Barlow, 5 Ind. R, 230. The judgment must be affirmed. Per Curiam. The judgment is affirmed, with five per cent damages and costs. H. P. Biddle, for the appellants. D. D. Pratt and D, M. Cox, for the appellee. MBXAL V. DEAEBORN. 207 MEXAL V. DEARBORN. Supreme Judicial Coukt of Massachusetts. 1859. [Reported 12 Gray, 336.] Action of tort for taking a qiiantitj' of calf skins. The declaration in one count alleged title in the plaintiff; and in another a lien for work done upon them by the plaintiff as a currier. Answer, that the goods belonged to William Jameson, and were taken possession of under a warrant issued in proceedings in insolvency against Jameson, directed to the defendant as messenger. At the trial in the superior court of Suffolk at September term, 1857, the plaintiff offered evidence that the calf skins were left with him by- Jameson to be curried ; and that when the work was partiallj' done, Jameson sold them to him in payment of a debt due him, a part of which was for the work done on these skins, and gave a bill of sale thereof to the plaintiff, in whose possession thej' then were. It appeared that proceedings in insolvency were dulj' commenced against Jameson soon after this sale ; and a warrant issued to the defendant as messenger, on which he took the skins. The defendant offered evidence that the sale to the plaintiff was fraudulent and void as against Jameson's creditors. Tiie plaintiff claimed to recover the whole value of the skins, on the ground that the sale was not fraudulent ; and also to recover on the sec- ond count, the amount of work performed on the skins, on the ground that he had a subsisting lien on them therefor. Abbott, J., ruled, "that if the plaintiff bought the skins of Jameson, taking a bill of sale of them, together with the possession, and this purchase was good as between the parties, then if the jury were satis- fied that the sale was fraudulent as against the creditors of Jameson, and that when the defendant took them the plaintiff claimed under said bill of sale to him, and not on the ground of having a lien on them, and had so continued iu his claim till the commencement of this action, never demanding the amount of his lien of the defendant, or notifying him that he claimed any, but persisting in his claim under the sale to him, the plaintiff would not be entitled to recover on the second count the amount of his lien." The jury returned a verdict for the defend- ant, and the plaintiff alleged exceptions. F. J. Butler, for the plaintiff. P. WiUard, for the defendant. Merkick, J. Bj' purchasing the calf skins, which had been put into his possession to be curried, and by taking a bill of sale thereof, and afterwards, to the time of the commencement of this action, claiming them solely under that title, without having given notice of any other to the defendant when he took them away in discharge of his duty as messenger under the proceedings in insolvency against the vendor, the 208 CALDWELL V. TTJTT. plaintiff lost or waived the lien which he had previouslj' acquired. A good and sufficient consideration was paid for the transfer of the prop- ertj-, and as between the parties to the contract the sale was absolute and complete. Tlie ownership thus obtained was entirelj' inconsistent with the existence of the previous lien. A lien is an incumbrance upon property, a claim upon it which maj' be maintained against the general owner. But there is no foundation upon which he who owns the whole can create a special right in his own favor to a part. The inferior or partial title to a chattel necessarily' merges in that which is absolute and unconditional, when both are united and held by the same individ- ual. Tliis is a general consequence. But in the present instance, it is obvious that the parties extinguished, and intended to extinguish, the lien which had been previously created upon the calf skins ; for the value of the work and labor which had previously been bestowed upon them by the vendor was bj' their express agreement made part of the consideration of the sale. After such a transaction the rights of the parties were wholly changed. The vendor could no longer assert any claim to the property, and the workman had none against his employer. His debt had been paid, the property' had become his own, and a lien upon it in his own favor thereby rendered both needless and impossible. But the result is the same if the facts upon which the ruling excepted to in the superior court was made are considered in another aspect. The law will not allow a party to insist upon and enforce in his own behalf a secret lien upon personal property after he has claimed it unconditionally as his own, and has thereby induced another to act in relation to it, in some manner affecting his own interest, as he would, or might, not have done if he had been openly and fairly notified of the additional ground of claim. It would be fraudulent in him to practise such concealment to the injury of others ; and to prevent the possibility of attempts so unjust becoming successful, the law implies that an intended concealment of that kind is of itself a waiver of the lien. The authorities cited by the counsel for the defendant, not less than its intrinsic reasonableness, fully warrant the ruling to which the plaintiff objected. Exceptions overruled. CALDWELL v. TUTT. Sdpkeme Court of Tennessee. 1882. [Reported 10 Lea, 258.] Appeal in error from the Circuit Court of Montgomery County. Jo. C. Stark, J. Daniels db Goodpasture, for Caldwell & Shelton. W. A. Quarks, for Tutt. Freeman, J., delivered the opinion of the court. CALDWELL V. TUTT. 209 This case is as follows : Plaintiffs are liver^'-stable keepers in the citj' of Clarksville. Mr. Mumford had placed his horse in the stable to be kept by the owners of the stable. He was in the habit of taking said horse from the stable occasionally for a ride, by and with the consent of the keepers of the stable. While riding him on one of these occasions, the horse was levied on by defendant, a constable, by virtue of an execution against the owner. The question submitted to the court was, whether the livery-stable keepers, whose bill for board of the horse was unpaid, had a lien on the horse for its paj-ment, or the execution lev3' was superior to it ? The circuit judge decided in favor of the defendant, and that on these facts no lien existed at the time of the levy, from which there is an appeal in error to this court. The case turns mainly on sections 1993 a and 1993 e of the Code. The first provides: " Whenever anj' horse or other animal is received to pasture for a consideration, the former shall have a lien upon the animal for his proper charges, the same as the innkeeper's lien at com- mon law." The latter section is : " Livery-stable keepers shall be entitled to the same lien provided for in section 1 of this act, on all stock received by them for board and feed, until all reasonable charges are paid." The question then is, would an innkeeper be entitled to his lien under the facts in this case ? for the livery-stable keeper has such a lien as the innkeeper, until all reasonable charges are paid. The nature of the business, and necessarj- implications arising from the character of the undertaking or contract, is to be taken into considera- tion in arriving at the proper result. The right of the innkeeper is to detain or hold the horse till the price of his provender is paid : 3 Parsons, 249. Mr. Parsons adds : " What shows the spirit and principle of the rule, if he permit his guest or horse to depart on credit, he loses his lien, and can never arrest it after for that debt if the guest come again." Take the nature of this contract, and its surroundings, and apply this rule in its spirit, and we have the solution of the question. The party puts his horse to board at a livery stable in his own town. He, as owner, takes his horse out temporarily for a ride, it may be of a morning or an evening, for exercising himself or horse, or both. The innkeeper permits this, as was fairly implied in the nature of the contract. It certainly cannot be maintained, that he thereby intends to permit the party to depart with the horse, and credit him for the board ; on the contrary, it is well understood that the possession will in a short time be restored. The horse is not intended to be allowed to depart from his custody so as to end the bailment, but only a tem- porary user of the owner to be allowed. In a word, neither party thought of terminating the contract, — or of the one taking and the other yielding possession, — so as to give an individual credit alone for the board, and release thereby the lien of the livery man. 14 210 VINAL V. SPOFFOBD. This being the fair meaning of the contract, and of the acts of the parties, it would seem unquestionable that, as against Mumford, the livery-stable keeper would have still retained his lien, and if so his creditor must take his shoes, and can only take his property cum onere, as the owner himself held it at the time of seizure. It would have been a fraud on the part of Mumford had he assented to what had been done, terminated the bailment, and released the lien. His creditor can stand no higher. VINAL V. SPOFFOED. Supreme Judicial Coukt of Massachusetts. 1885. [Reported 139 Mass. 126.] Replevin of one horse, one grocery wagon, one open buggy, one express harness, and one buggy harness. Writ returnable to the Municipal Court of the city of Boston. That court entered judg- ment for the plaintiff for all the articles replevied except the horse, with damages and costs ; and also entered judgment for the defendant for a return of the horse, and for damages and costs. The plaintiff appealed to the Superior Court from the latter judgment. Trial in that court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows : The defendant contended that he had a right, under the plaintiff's appeal, to trj- the question of the title to the wagon and the harnesses ; but the judge ruled that he had no such right, and excluded evidence offered in regard to such title. As to the horse, there was evidence tending to prove the following facts : Howard Vinal, the father of the plaintiff, during the two years prior to Januar}' 4, 1883, had owned a stock of groceries, and also the horse described in the plaintiff's declaration, which he had used in con- nection with his business of a grocer, at a shop in Boston, and during seven months of this period had hired the keeping of said horse at the livery stable of the defendant. On January 4, 1883, Howard Vinal, being embarrassed in his business, executed and delivered a bill of sale of all the stock, furniture, and fixtures owned bj' him in said shop, together with said horse, to the plaintiff, and on the same day delivered the horse to the plaintiff, in consideration of the plaintiff's promissory note, payable on demand, for a certain sum, which was received by Howard Vinal, on payment of said note, and applied by him to carry into effect a composition with most of his creditors. At this time of this composition, Howard Vinal requested the defend- ant to become a party thereto, but the defendant, whose claim against Howard Vinal for keeping the horse was from $160 to $190, refused so to do unless the full amount of his claim was paid ; and he did not VINAL V. SPOFFORD. 211 become a party to said composition during the keeping of the horse at tlie defendant's liverj- stable, before and after the ti-ansaction of sale between Howard Vinal and the plaintiff. After January 4, 1883, the shop was conducted with the same sign upon it as before ; the horse was used in the business of said shop as before, and Howard Vinal conducted, for a salary of $12 per week, the business of the shop, with the same clerks as before, while the plaintiff carried on the business of his shoe shop on another street. The daily custom in the matter of the use and keeping of said horse was this : it was taken b3' Howard Vinal, or by some person acting under his direction, from the defendant's livery stable early in the morning, and used at the sliop in its business until noon, then was taken to the defendant's stable to be baited ; afterwards it was taken to the shop, and there used until evening, when it was returned to the defendant's livery stable, and was there kept until the following morn- ing. While the horse was at the shop, according to the dailj- custom, on January 4, 1883, he was delivered to the plaintiff, under the trans- action of sale ; and, without notice thereof to the defendant of said transaction, at the close of that day was returned to the defendant's livery stable, and kept and used as previously under said custom, until replevied in this action. The contract for the keeping of the horse between Howard Vinal and the defendant was, that for its keeping the defendant should be paid one half in cash and one half in groceries from the shop, and before the replevin the defendant, or some person bj- his order, had received groceries to the amount of S50 in part payment for the keep- ing. After January 4, 1883, and about ten days before the replevin, the defendant demanded monej' from Howard Vinal, or flour or sugar from the shop, in part payment of the sum due for the keeping of the horse. Howard promised to send flour for that purpose, but failed to do so, and in explanation told the defendant that the stock of bis shop, horse, &c. had been sold by him to the plaintiff; and thereupon the defendant sent a person in his employ to take the horse, then at the shop in use as previously, and remove the same to his livery stable ; and the horse was then and there removed, and remained in the defendant's livery stable until replevied in this action. The plaintiff subsequently, at said livery stable, asked the defendant to give him a statement of how much he, the plaintiff, owed for the keeping of the horse, ottering to pay the same ; but the defendant refused to state any claim for the keeping of the horse against tlie plaintiff, declaring that the plaintiff owed him nothing for that keeping, but that his father, Howard Vinal, owed for that keeping ; and there- upon this action was brought. The foregoing is a statement of all the facts of which there was any evidence at the trial. The defendant requested the judge to rule, that he had the riglit to take and to hold the horse, by virtue of his lien as a livery-stable 212 VINAL V. SPOFFOED, keeper, for the keeping of the horse, and that this lien was not im[)aii-ed or interrupted b3- allowing the owner of the horse to use the same in his business of a grocer ; that the facts and circumstances in evidence of his allowing the owner of said horse the use of the same did not, in law, constitute a waiver of such lien ; and that the sale of the horse by Howard Vinal to the plaintiff, without the knowledge of the defendant until after he had taken the horse to his stable, could not operate to defeat the lien which he asserted for the keeping of the horse to the time of the sale and afterwards. The judge refused to rule as requested by the defendant, and ruled that, upon the facts and circumstances in evidence, the defendant could not maintain the lien claimed b^- him against the plaintiffs right to the possession of the horse under his purchase of the same from Howard Vinal, or under his retaking of the horse at said shop upon obtaining knowledge of the purchase. The defendant contended that the sale of the horse by Howard Vinal to the plaintiff was not an actual sale, but a colorable one, and fraudulent ; and that, on the morning of the day when the defendant retook the horse, the defendant had been induced to permit the horse to be taken from his possession and from his livery stable by the fraud- ulent promise of Howard Vinal to send to the defendant flour from his sliop, in part payment for the money then due for the keeping of said horse. The jury found speciallj-, upon questions submitted to them, that the sale of the horse bj' said Howard Vinal to the plaintiff was a valid sale, made in good faith and for a valuable consideration, and that the horse was not obtained from the livery stable of the defendant by false and fraudulent representations ; and returned a general verdict for the plaintiff. The defendant alleged exceptions. jET J. Edir.ards, for the defendant. E. C. Gilman, for the plaintiff. Holmes, J. 1. When replevin is brought for a number of chattels, some of which belong to the plaintiff and others to the defendant, although all are declared for in one count, the ease is dealt with as if there were two counts, and each party was entitled to prevail upon one. Seymour v. Billings, 12 Wend. 285. Williams v. J3eede, 15 N. H. 483. Each party is an actor, and each may have a judgment and legal costs, as happened in this case. Powell v. Hinsdale, 5 Mass. 343. These judgments are distinct, and it follows that an appeal bj* one part}- only from the judgment against him does not reopen the judg- ment in his favor. Pub. Sts. c. 154, §§ 39, 43; c. 155, § 28. Justice and analogy lead to the same result. See Downing v. Coyne, 121 Mass. 347 ; Whiting v. Cochran, 9 Mass. 532 ; May v. Gates, 137 Mass. 389 ; M'Donough v. Bannery, 3 Dall. 188, 198. 2. The jury have found that the plaintiff bought the horse in good faith and for a valuable consideration, and that it was not obtained from the defendant's stable by fraud. On the bill of exceptions we JOHNSON V. STEAR. 213 mnst assume that the previous owner of the horse rightfullj- took it fiom the defendant's custody and delivered it to the plaintiff. Such a transaction would divest a common law lien. Perkins v. Boardman, 14 Gray, 481. We are of opinion that it equally divested that which the defendant had previously acquired under the Pub. Sts. c. 192, § 32 (St. 1878, 0. 208). That statute creates a lien in cases where the common law has not recognized one. Goodrich v. Willard, 7 Gray, 183. But it gives no intimation that it uses the word " lien" in any different sense from that which is known to the common law. On the contrary, it in terms supposes that the animals in question have been placed in the care, that is to saj', in the possession, of the party to vrhom the lien is given. The provisions for sale would seem to imply the same thing. To admit that it was intended to create a tacit hypoth- ecation, like that enforced from necessity, but within narrow limits, in the admiraltj', would be to go in the face of the whole policy of our statutes, which alwaj's strive to secure public registration when pos- ses.sion is not given and retained, and which expressly provide for such registration when they in terms create a lien not depending on posses- sion. It follows from what we have said, that, even if the defendant had had a lien for the keeping of the horse after the sale, or whatever might be the rule when the animal was voluntarily restored to his possession, he lost it by allowing the plaintiff to take possession, and could not revive his right by seizing the horse. Thompson v. Dolliver, 132 Mass. 103. Walker v. Staples, 5 Allen, 34. Papineau v. Went- wwth, 136 Mass. 543. Exceptions overruled} D. Pledge. JOHNSON V. STEAR. Common Pleas. 1863. [Reported 15 C. B. N. S. 330.] This was an action brought by the plaintiff as assignee of one Mathew Gumming, a bankrupt, for the alleged wrongful conversion by the defendant of 243 cases of brandy and a pipe of wine. The defendant pleaded not guilty and not possessed, whereupon issue was joined. The cause was tried before M-le, C. J., at the sittings in London after 1 See Jackson v. Cummins, ante 159 ; Forth T. Simpson, 13 Q. B. 680 ; Allen v. Smith, ]2 C. B. N. 8. 6.38; Perkins v. Boardman, 14 Gray, 481 ; Smith v. Harden, 60 N. JI. 609 ; Seebaum v. Handy, 46 Ohio St. 560. For cases of a pledgee giving up pos- session, see Beeves v. Capper, 5 Bing. N. C. 1-36 ; Babcock v. Lawson, 5 Q. B. D. 284 ; North Western Bank v. Poynter, [1895] A. C. 56 ; Walker v. Staples, 6 Allen, 84. — Ed. 214 JOHNSON V. STEAR. last Easter Term. The facts as proved or admitted were as follows: On the 26th of January, 1862, the bankrupt, Gumming, applied to the defendant for an advance of £62 10s. upon the security of certain brandies then lying in the London Docks. The defendant consented to make the advance, and Gumming gave him his acceptance at one month for the amount, at the same time handing him the dock-warrant for the brandies and the following memorandum : — "I have this day deposited with yoa the undermentioned 243 cases of brandy, to be held by j'ou as a security for the payment of my acceptance for £62 10s. discounted by j'ou, which will become due January 29, 1863 ; and, in case the same be not paid at maturity, I authorize j-ou at any time, and without further consent by or notice to me, to sell the goods above mentioned, either by public or private sale, at such price as you think fit, and to apply the proceeds, after all charges, to the payment of the bill; and, if there should be an}' deS- ciency, I engage to pay it. (Signed) M. Gumming." Then followed an enumeration of the marks and numbers on the cases. On the 3d of Januarj', Gumming obtained from the defendant a further advance of £25 upon the security- of a warrant for a pipe of port wine, with an I. 0. U. and a post-dated check (7th January), but no distinct authority, as in the case of the brandies, to sell on default of payment on a given day. Gumming absconded on the 5th of January, and was declared a bankrupt on the 17th ; and the plaintiff was afterwards appointed assignee. On the 28th of January, the defendant contracted to sell the brandies to Messrs. Ruck & Co. On the 29th (the day on which Gumming's acceptance became due) the dock-warrant was delivered to them, and on the 30th they took actual possession of the brandies. The check given by Gumming for the second advance being also dishonored, the defendant sold the wine for £40. The demand and refusal were on the 27th of February. On the part of the defendant it was submitted that there was no conversion, and that the transactions were protected, the adjudication being now the dividing line; and that, at all events, the plaintiff was only entitled to nominal damages for the pi-emature sale of the bran- dies, — it being assumed that the bankrupt had no intention to avail himself of his right of redemption. Under the direction of the learned judge, the jury returned a verdict for the plaintiff, assessing the value of the wine at £40, and that of the brandies at £62 10s. ; and leave was reserved to the defendant to move to enter a verdict for him if the court should be of opinion that the plaintiff was not entitled to recover. Powell, in Trinity Term, moved for a rule accordingly. Bennian, Q. G., and Howard, now showed cause. JOHNSON V. STEAR. 215 Erlb, C. J., now delivered the judgment of the majoritj' of the conrt.^ In trover bj- the assignee under the bankruptcy of one Gumming, the facts were that Gumming bad deposited brandy lying in a dock with one Stear, bj' delivering to him the dock-warrant, and had agreed that Stear might sell, if the loan was not repaid on the 29th of Jan- uary; that, on the 28th of January, Stear sold the brand}-, andton the 29th handed over the dock-warrant to the vendees, who on the 30th took actual possession. Upon these facts, the questions are, — first, was there a conversion? and, if yes, — sccondh', what is the measure of damages? To the first question our answer is in the affirmative. The wrongful sale on the 28th, followed on the 29th by the delivery of the dock- warrant in pursuance thereof, was, we think, a conversion. The defendant wrongfully assumed to be owner in selling ; and, although the sale alone might not be a conversion, yet, bj' delivering over the dock-warrant to the vendees in pursuance of such sale, he interfered with the right which Gumming had of taking possession on the 29th if he repaid the loan ; for which purpose the dock-warrant would have been an important instrument. We decide for the plaintiff on this ground : and it is not necessary to consider the other grounds on which he relied to prove a conversion. Then the second question arises. The plaintiff contends that he is entitled to the full value of the goods sold by the defendant, without anj' deduction, on the ground that the interest of the defendant as bailee ceased when he made a wrongful sale, and that therefore he became liable to all the damages which a mere wrongdoer who had wilfully appropriated to himself the property of another without any right ought to paj\ But we are of opinion that the plaintiff is not entitled to the full value of the goods. The deposit of the goods in question with the defendant to secure repaj-ment of a loan to him on a given day, with a power to sell in case of default on that day, created an interest and a right of property in the goods which was more than a mere lien : and the wrongful act of the pawnee did not annihilate the contract between the parties nor the interest of the pawnee in the goods under that contract. It is clear that the actual damage was merely nominal. The defend- ant by mistake delivered over the dock-warrant a few hours only before the sale and delivery by him would have been lawful ; and by such premature delivery the plaintiff did not lose anj-thing, as the bankrupt had no intention to redeem the pledge by paying the loan. If the plaintiff's action had been for breach of contract in not keeping the pledge till the given day, he would have been entitled to be com- pensated for the loss he had really- sustained, and no more : and that would be a nominal sum onlj'. The plaintiff's action here is in name for the wrongful conversion ; but, in substance, it is the same cause of action ; and the change of the form of pleading ought not in reason to affect the amount of compensation to be paid. 1 CoDsistiDg of himself, Byles, J., and Keating, J. 216 JOHNSON V. STEAB. There is authority for holding, that, in measuring the damages to be paid to the pawnor by the pawnee for a wrongful conversion of the pledge, the interest of the pawnee in the pledge ought to be taken into the account. On this principle the damages were measured in Chinery V. Viall, 5 Hurlst. & N. 288. There, the defendant had sold sheep to the plaintiff ; and, because there was delay in the payment of the price by the plaintiff, the defendant resold the sheep. For this wrong the court held that trover laj-, and that the plaintiff was entitled to recover damages ; but that, in measuring the amount of those damages, al- though the plaintiff was entitled to be indemnified against any loss he had really sustained by the resale, j'et the defendant as an unpaid vendor had an interest in the sheep against the vendee under the con- tract of sale, and might deduct the price due to himself from the plain- tiff from the value of the sheep at the time of the conversion. In Story on Bailments, § 315, it is said : " If the pawnor, in conse- quence of anj' default or conversion by the pawnee, has recovered back the pawn or its value, still the debt remains and is recoverable, unless in such prior action it has been deducted : and it seems that, by the common law, the pawnee in such action for the value Las a right to have the amount of his debt recouped in damages." For this he cites Jarvis v. Rogers, 15 Mass. R. 389. The principle is also exempli- fied in JBrierly v. Kendall, 17 Q. B. 937. There, although tlie ft)rm of the security was a mortgage, and not a pledge ; and although the action was trespass and not trover ; yet the substance of the transaction was in close analogy with the present case. There was a loan by the defendant to the plaintiff, secured bj' a bill of sale of the plaintiff's goods, in which was a reservation to the plaintiff of a right to the possession of the goods till he should make default in some pay- ment. Before any default, the defendant took the goods from the plaintiff and sold them. For this wrong he was liable in trespass ; but the measure of damages was held to be, not the value of the goods, but the loss which the plaintiff had reallj' sustained by being deprived of the possession. The wrongful act of the defendant did not anni- hilate his interest in the goods under the bill of sale ; and such interest was to be considered in measuring the extent of the plaintiff's right to damages. On these authorities we hold that the damages due to the plaintiff for the wrongful conversion of the pledge by the defendant, are to be measured by the loss he has really sustained ; and that, in measuring those damages, the interest of the defendant in the pledge at the time of the conversion is to be taken into the account. It follows that the amount is merely nominal, and therefore that the verdict for the plain- tiff should stand, with damages 40s. Williams, J. I agree with the rest of the court that there was sufH- cient proof of a conversion ; for, although the mere sale of the goods (according to The Lancashire Waggon Company v. Fitzhugh, 6 Hurlst. & N. 502) would have been insufficient, yet I think the handing over JOHNSON V. STEAR. 217 of the dock-warrant to the vendees before the time had arrived at which the brandies could be properly' sold, according to the terms on which they were pledged, constituted a conversion, inasmuch as it was tanta- mount to a delivery. Not that the warrant is to be considered in the liglit of a symbol, according to the doctrine applied to cases of dona- tions mortis causa ; it is the means of coming at the possession of a thing which will not admit of corporal delivery. Ward v. Turner, 2 Ves. Sen. 431 ; Smith v. Smith, 2 Stra. 295. But I cannot agree with mj- Lord and my learned Brothers as to the other point ; for I think the damages ought to stand for the full value of the brandies. The general rule is indisputable, that the measure of damages in trover is the value of the property at the time of the con- version. To this rule there are admitted exceptions. There is the well-known case of a redelivery of the goods before action brought, which, though it cannot cure the conversion, yet will go in mitigation of damages. Another exception is to be found in cases where the plaintiff has only a partial interest in the thing converted. Thus, if one of several joint-tenants or tenants in common alone brings an action against a stranger, he can recover only the value of his share. So, if the plaintiff, though solely entitled to the possession of the thing con- verted, is entitled to an interest limited in duration, he can only recover damages proportionate to such limited interest, in an action against the person entitled to the residue of the property (though he may re- cover the full value in an action against a stranger). The case of Urierly v. Kendall, which mj' Lord has cited, is an example of tliis exception. There, the goods had been assigned bj' the plaintiff to the defendant by a deed the terras of which operated as a re-demise, and, since the defendant's quasi estate in remainder was not destroj-ed or forfeited by his conversion of the quasi particular estate, the plaintiff, as owner of that estate, was only entitled to recover damages in pro- portion to the value of it. With respect, however, to liens, the rule, I apprehend, is well estab- lished, that, if a man having a lien on goods abuses it by wrongfully parting with them, the lien is annihilated, and the owner's right to possession revives, and he may recover their value in damages in an action of trover. With reference to this doctrine, it ma}' be useful to refer to Story on Bailments. In § 325, that writer says : " The doc- trine of the common law now established in England, after some diver- sity of opinion, is, that a factor having a lien on goods for advances or for a general balance, has no right to pledge the goods, and that, if he does pledge them, he conveys no title to the pledgee. The effect of this doctrine is, in England, to deny to the pledgee any right in such a case to retain the goods even for the advances or balance due to the factor. In short, the transfer is deemed wholly tortious ; so that the principal may sue for and recover the pledge, without making any allowance or deduction whatever for the debts due by him to the factor." After stating that the English legislature had at length interfered, the 218 JOHNSON V. STEAR. learned author continues, in § 326, — "In America, the general doc- trine that a factor cannot pledge the goods of his principal, has been repeatedly recognized. But it does not appear as j'et to have been carried to the extent of declaring the pledge altogether a tortious pro- ceeding, so that the title is not good in the pledgee even to the extent of the lien of the factor, or so that the principal may maintain an action against the pledgee without discharging the lien, or at least giving the pledgee a right to recover the amount of the lien in the damages." But, in the 6th edition, by Mr. Bennett, it is added, — "Later deci- sions have, however, fuUj- settled the law, that a pledge hy a factor of his principal's goods is wholly tortious, and the owner may recover the whole value of the pledgee, without any deduction or recoupment for his claim against the factor." And I may meution that I have reason to believe this rule as to liens was acted upon a few daj-s ago in the Court of Queen's Bench. Siehel v. Springfield, 9 Law T. N. S. 325. But it is said that the maintenance of such a rule in respect of pledges is inconsistent with Chinery v. Viall, mentioned by my Lord. It seems to me, however, that the decision of that case does not interfere with the general rule as to damages in trover, but only establishes a further exception in the peculiar and somewhat anomalous case of an unpaid vendor, whose right in all cases has been deemed to exceed a lien : see Blackburn on Contracts, p. 320. I cannot, however, think that this exception can be properly extended to the case of a pledgee. An unpaid vendor has rights independent of and antecedent to his lien for the purchase-mouey. But the property of a pledge is a mere creature of the transaction of bailment ; and, if the bailment is terminated, must surelj' perish with it. Accordingly, it is said in Story on Bailments, § 327, — "It has been intimated that there is, or ma3' be, a distinction favorable to the pledgee, which does not apply, or may not apply, to a factor, since the latter has but a lien, whereas the former has a special property in the goods. It is not very easy to point out any substantial distinction between the case of a pledgee and the case of a factor. The latter holds the goods of his principal as a security and pledge for his advances and other dues. He has a special property in them, and may maintain an action for any violation of this possession, either b}' the principal or by a stranger. And he is generally treated, in judicial discussions, as in the condition of a pledgee." Again, in § 299, "As possession is necessary to complete the title by pledge, so, bj' the common law, the positive loss or the delivery back of the possession of the thing with the consent of the pledgee, terminates his title." And, further, in the same section, — " If the pledgee voluntarily, by his own act, places tlie pledge beyond his own power, as by agreeing that it may be attached at the suit of a third person, that will amount to a waiver of his pledge." See Whitaker v. Sumner, 20 Pick. R. 399. It should seem, then, that the bailment in the present case was ter- minated by the sale before the stipulated time ; and, consequently, that the title of the plaintiff to the goods became as free as if the bailment DONALD V. SUCKLING. 219 had never taken place. If he had brought an action against an innocent vendee, the passage I have alreadj' cited from Stor^', § 325, demon- strates that he might have recovered the absolute value of the goods as damages. Why should he be in a worse condition in respect of an action against the pledgee who has violated tlie contract of pledge? The true doctrine, as it seems to me is, that, whenever the plaintiff could have resumed the property, if he could lay his hands on it, and could have rightfuUj' held it when recovered as the full and absolute owner, he is entitled to recover the value of it as damages in the action of trover, which stands in the place of such resumption. In the present case, I think it plain that the bailment having been terminated by the wrongful sale, the plaintiff might have resumed pos- session of the goods freed from the bailment, and might have held them rightfully when so resumed, as the absolute owner, against all the world. And I therefore think he ought to recover the full value of thera in this action. Nor can I see any injustice in the defendant's being thus remitted to his unsecured debt, because his lien has been forfeited by his own vio- lation of the conditions on which it was created. Hule absolute to reduce the damages to 40s. DONALD V. SUCKLING. Queen's Bench. 1866. [Reported L. R. 1 Q. B. 585.] Declaration. That the defendant detained from the plaintiff his securities for money, — that is to say, four debentures of the British Slate Companj', Limited, for £200 each, — and the plaintiff claimed a return of the securities or their value, and £1,C00 for their detention. Plea. That before the alleged detention, the plaintiff deposited the debentures with one J. A. Simpson, as security for the due payment at maturity of a bill of exchange, dated 25th August, 1864, payable six months after date, and drawn by the plaintiff, and accepted by T. Sanders, and endorsed by the plaintiff to and discounted by Simpson, and upon the agreement then come to between the plaintiff and Simp- son, that Simpson should have full power to sell or otherwise dispose of the debentures if the bill was not paid when it became due. That the bill had not been paid by the plaintiff nor by any other person, but was dishonored ; nor was it paid at the time of the said detention or at the commencement of this suit; and that before the alleged de- tention and the commencement of this suit Simpson deposited the debentures with the defendant to be by him kept as a security for and until the repayment by Simpson to the defendant of certain sums of money advanced and lent by the defendant to Simpson upon the security 220 DONALD V. SUCKLING. of the debentures, and the defendant had and received the same for the purpose and on the terms aforesaid, which sums of money thence hitherto have been and remain whollj' due and unpaid to the defendant ; where- fore the defendant detained and still detains the debentures, which is the alleged detention. Demurrer and joinder. Sarington, for the plaintiff. €rray, Q. C. {Gadsden with him), for the defendant. Jul}' 7. The following judgments were delivered : — Shee, J. [After stating the pleadings.] This plea sets up a right to detain the debentures, founded on a bailment of pawn by the plain- tiflf to Simpson, under which Simpson, if the bill should not be paid, had a right to sell the debentures, paying the overplus above the amount of the bill and charges to the plaintiff, — that is, to sell on the plaintiff's account and for his and Simpson's benefit, — and a repawn of them by Simpson as a security for a loan to him by the defendant. It must be taken against the defendant that the debentures were pledged to him by Simpson before the plaintiff had made default ; it must be taken, too, that the advance for which the debentures were pledged to the defendant by Simpson was of a greater amount than the debt for which Simpson held them ; it is consistent with the facts pleaded, either that it was repayable before or repayable after the ma- turity of the plaintiff's bill, and that the debentures were pledged bj Simpson, along with other securities, from which they could not at Simpson's pleasure, or on tender by the plaintiff of the sum for which they had been pledged to Simpson, be detached; and therefore that Simpson had put it out of his power to apply them by sale or otherwise to the onlj' purpose for which possession of them had been given to him ; viz., to secure the payment of his debt and the release of the plaintiff, by the sale of them, from liability on the bill which Simpson had discounted for him. Whether this pledge to the defendant by Simpson was such a con- version by him of the debentures as destroj-ed his right of possession in them, and revested the plaintiff's right to the possession of them freed from the original bailment, is the question for our decision. The contention that a pawnee is entitled to exercise over the chattel pawned to him a power so extensive as the one which this plea sets up, was before the case of Johnson v. S!ear, 15 C. B. N. S. 330 ; 33 L. J. C. P. 130, if it be not now, wholly unsupported bj' authority. A pawn is defined by Sir William Jones (On Bailments, pp. 118, 36) to be "a bailment of goods by a debtor to his creditor, to be kept by him till his debt is discharged ; " and by Lord Holt {Coggs v. Bernard, 2 Ld. Raym. 913), to be " a delivery to another of goods or chattels to be security to him for monej' borrowed of him by the bailor ; " and by Lord Stair (Institutions of the Law of Scotland, b. i. tit. 13, s. 11), "a kind of mandate whereby the debtor for his creditor's security gives him the pawn or thing impignorated, to detain or keep it for bis own DOKALD V. SUCKLING. 221 security, or in tlie case of not-paj-ment of the debt, to sell the pledge and pay himself out of the prioe, and restore the rest, or restore the pledge itself on payment of the debt ; all which is of the nature of a mandate, and it hath not oiil^- a custody in it, but the power to dispone in the case of not-pay raent ; " and by Bell (Principles of the Law of Scotland, ss. 1362, 1363; 4th ed. p. 512), "a real right or jus in re, inferior to property, which vests in the holder a power over the subject to retain it in security of the debt for which it is pledged, and gualifies so far and retains the right of property in the pledger or owner." In the Roman civil law, as in our own law (see Pigot v. Cubley, 15 C. B. N. S. 701 ; 33 L. J. 134), the bailment of pawn implied what in this bailment is expressed, a mandate of sale on default of paj-ment. Without it, or without, as in the Scotch and French law, a right to have a pledge sold judically for payment on default made, the security by way of pledge would be of little value. The pawnee is said by Lord Coke, in his Commentaries on Littleton (Co. Litt. 89 a), to have a " property ; " and in Southcotds Case, 4 Rep. 83 b, to have a " prop- erty in, and not a custody onl^-," of the chattel pawned ; by which Lord Holt (2 Ld. Raym. 916, 917) understands Lord Coke to mean a " special propertj'," consisting in this, " that the pawn is a security to the pawnee that he shall be repaid his debt, and to compel the pawnor to pay him ; " or, in the words of Fleming, C. J. in Matcliff v. Davis, Cro. Jac. 245 : "a special property in the goods to detain them for his (the pawnee's) security ; " that is, not a propert}' properly so called, but the jus in re, that is, in re aliena, of the Roman law- j-ers ; the opposite, as Mr. Austin says (Lectures on Jurisprudence : Tables and Notes, iii. 192), to property ; but a right of possession against the true owner, and under a contract with him until his debt is paid, and a power of sale for the reciprocal benefit of the pawnee and pawnor on default of payment at the time agreed upon. Mr. Justice Story saj-s (On Bailments, s. 324), that " the pawnee may by the common law deliver the pawn into the hands of a stranger without consideration, for safe custody, or convey the same interest con- ditionally by way of pawn to another person, without destroying or in- validating his security-, but that he cannot pledge it for a debt greater than his own; that if he do so he will be guilty of a breach of trust, by which his creditor will acquire no title beyond that of the pawnee ; and that the only question which admits of controversj' is, whether the cred- itor shall be entitled to retain the pledge until the original debt (that is, the debt due to the first pawnee) is discharged, or whether the owner may recover the pledge in the same manner as if the case was a naked tort without any qualified right in the first pawnee." So much of this passage as is stated to be clear law; viz. that the pawnee may deliver the chattel pawned to a stranger for safe custodj' without consideration, or convey the same conditionally (i. e., it may be presumed, on the same conditions as those on which he holds it) by way of pawn to another person for a debt not greater than his own, without destroying or invali- 222 DONALD V. SUCKLING. dating his security, has no application to the case before us, inasmuch as the pawn by Simpson to the defendant was not for safe custody, nor without consideration, norconditionallj'', nor for a debt not greater than the debt due by the plaintiff to Simpson, aud because the power given to the pawnee by this bailment to dispose of the debentures by sale or otherwise, should his debt not be paid, might probably be considered, at least after default made, to enlarge the ordinary right of a pawnee over the chattel pawned. There is nothing in the passage which affords any countenance, except by wa^- of querj', to the position that a pawnee who, as in this case, has placed the chattel pawned out of the pawnor's power, and out of his own power, to redeem it by payment of the amount for which it was given to him as a securit}', and who has deprived himself of the power of selling it for the payment of the pawnor's debt, can by so doing shield the creditor to whom he repawns it from an ac- tion of detinue at the suit of the real owner. Mr. Justice Story, indeed, says (On Bailments, s. 299), " that if the pledgee voluntarily and by his own act places the pledge beyond his power to restore it, — as by agree- ing that it may be attached at the suit of a third person, — that will amount to a waiver of the pledge." It would be difficult to reconcile anj' other rule in respect of the pledging by pledges of the chattels pawned to them with the well-established doctrine of our courts and the courts of the United States of America in respect of the pledging by factors of the goods entrusted to them. Factors, like pledgees, have a mandate of sale, — sale irrespectively of default of anj' kind is the ob- ject of the bailment to them ; they have a special property and right of possession against all the world except tlieir principal, and against him if they have made advances on the security of his goods entrusted to them ; to give effect to that security they may avail themselves of their mandate of sale ; but if they place the goods out of their own power by pledging them, although it be for a debt not exceeding their advances, the pawnee from them (except under the Factors Acts) is defenceless, in trover or in detinue, even to the extent of his loan, against the true owner. Whj' it should be otherwise between the true owner and the pawnee from a pawnee of the true owner's goods, no reason was adduced during the argument before us, nor indeed was it possible to abduce any rea- son, seeing that in all the decisions on pledges by factors the relation between a factor who has made advances on the goods entrusted to him and his principal has been held not distinguishable, or barely distin- guishable, in its legal incidents from the relation between pawnee and pawnor; a factor being, as Mr. Justice Stor^' says, " generallj' treated in juridical discussions as in the condition of a pledgee." (On Bail- ments, ss. 325, 327 ; citing Daubigny v. Duval, 5 T. R. 604 ; M' Com- bie V. Davies, 7 East, 5.) The ease of Johnson v. Stear, 15 C. B. N. S. 330 ; 33 L. J. C. P. 130, is a clear authority for holding that Simpson, in dealing with the de- bentures in the way which he must be taken on this plea to have done, was, as the defendant also was, guilty of a conversion of them ; and DONALD V. SUCKLING. 223 unless that case is also an authority binding upon us for the doctrine that the conversion by a pawnee of the thing pawned is not such an abuse of the bailment of pawn as annuls it, but that there remains in him, and in an assignee from him, and in an assignee from his assignee, and so on toties quoties, without limit as to the number of assignments or the consideration for them, an interest of property in the pawn •which de- feats the owner's right of possession, the plaintiff is entitled to our judgment. As I read the case of Johnson v. Stear, 15 C. B. N. S. 330; 33 L. J. C. P. 130, and the case of Chinery v. Viall, 5 H. & N. 288; 29 L. J. Ex. 180, and Brierli/ v. Kendall, 17 Q. B. 937 ; 21 L. J. Q. B. 161, on the authority of which it proceeded, the judgments of the majoritj- of the learned judges of the Court of Common Pleas, in the first of them, and the judgments of the Court of Exchequer, and of the Court of Queen's Bench, in the second and the third, are based on the principle that, in an action to recover damages for a conversion, it is not an inflexible rule of law that the value of the goods converted is to be taken as the measure of damages ; that when a suitor's real cause of action is a breach of contract he cannot by suing in tort entitle himself to a larger compensation than he could have recovered in an action in form ex contracUt ; and therefore that when a verdict is obtained against an unpaid vendor for the conversion of the thing sold b^- him, or against an unpaid pawnee for the conversion of the tiling pledged to him, he is entitled to be credited, in the estimate by the jurj', of the damages to be paid by him for the value of such interest or advantage as would have resulted to him from the contract of sale or the contract of pawn if it had been fulfilled by the vendee or pawnor. That this was the ratio decidendi in these cases seems to me clear from the facts of Chinery v. Viall, and Brierly v. Kendall, which raised no question between the litigant parties in anj' respect analogous to the question which we in this case have to decide. In Chinery v. Viall, the plaintiff, who was the vendee of forty-eight sheep, for five only of which he had paid, under a bargain which entitled him to de- livery of the whole lot before paj'ment, brought bis action against the vendor for a conversion by parting with the sheep to another purchaser. If the defendant's interest in the unpaid balance of the agreed price of the sheep had not been credited to him in the amount of damages, the plaintiff, who had only paid for five of them, would have pocketed the full value of the forty-three which had been converted. In Brierly v. Kendall, an action of trespass, there was a loan of the defendant to the plaintiff secured by bill of sale of the plaintiff's goods, in which was a reservation to the plaintiff of a right to the posses- sion of the goods until he should make default in some payment. Before any default the defendant took the goods from the plaintiff and sold them. For this wrong he was liable iu trespass ; but the measure of damages was held to be, not the value of the goods, but the loss which the plaintiff had really sustained by being deprived of the possession. 224 DONALD V. SUCKLING. The wrongful act of the defendant did not annihilate his interest in the goods under the bill of sale ; and such interest was considered in meas- uring the extent of the plaintiff's right to damages. These cases are manifestly not in conflict with, if indeed they at all touch, the principle relied upon against the plea which is liere demurred to, that if the pawnee converts the chattels pawned to him, the bailment is determined and the right of possession revested in the true owner of them. In Johnson v. Stear, the defendant, a pawnee of dock warrants, had anticipated by a few hours only the time at which, under his contract with the owner of them, he might have sold and delivered them ; he had applied before the time of action brought the proceeds of their sale to the discharge of the plaintiff's debt to him, or he held them specially applicable to that purpose, and the plaintiff, had he sued the defendant in contract for not keeping the pledge until default made, could not have proved that he had sustained any damage. The Chief Justice, speaking for himself and two of his learned brothers, did indeed say, that " the deposit of the goods in question with the defendant to secure repayment of a loan to him on a given daj-, with a power to sell in case of default on that day, created an interest and a right of prop- erty in the goods which was more than a mere lien ; and the wrongful act of the pawnee did not annihilate the contract between the parlies nor the interest of the pawnee in the goods under that contract" (15 C. B. N. S. 334, 335 ; 33 L. J. C. P. 131) ; but he cannot be understood to have meant by the words " interest and right of propertj- in the goods," and by the words "more than a mere lien" other than "a special property," as defined by the authorities before referred to by me; viz., a real right ov jus in re, a right of possession until default made, a right of retention or sale after default made ; nor, as I think, to have intended more by the words " the wrongful act of the pawnee did not annihilate the contract between the parties," than that the con- tract, in the breach of which consisted the tort of which the plaintiff complained, must still be considered to subsist, at least for the purpose of being referred to for the measure of the damage sustained by the pawnor and the damages to be recovered by him. The case before us differs, as I think, in essential particulars, as re- spects the principle upon which damages would have been measurable, had the action been in trover, from the case in the Common Pleas. The defendant, as assignee of the pawnee, could not surely have set up in mitigation of damages an interest derived bj' him from the pawnee before default made by the pawnor ; the pawnee, bj' the ex- press terms of the bailment to him, not having the right to dispose of the debentures by sale or otherwise until after default made. Besides, it is impossible to shut one's eyes to the broad distinction between the case of the sale a few hours too soon of a pawn which, as in the case of Johnson v. Stear, the pawnor " had no intention to redeem," — the pro- ceeds of the sale being devoted before action brought to discharge of DOKALD V. SUCKLING. 225 the debt for which the pawn had been given as a security, — and the abuse of a pawn by the pawnee in wrongfully, for his own purposes, placing out of his power, and out of the pawnor's power, to redeem the pawn should he have the means to do so. By the contract of bailment between the plaintiff and Simpson the proceeds of the sale of the debentures, which are the subject of this suit, had been specifically appropriated to the payment of the plaintiff's bill in the event of his not being able to meet it with other means. Simpson held the debentures in trust, should the bill not be paid, to sell them on the plaintiff's account, or allow the plaintiff to sell them or raise money on them to pay his bill. Instead of that, Simpson, before default made by the plaintiff, converted them to his own use, obtaining their agreed value in pledge from the defendant, and imposing upon the plaintiff the burthen of making other provision to meet his bill. By this act of Simpson the plaintiff, in my judgment, did in fact sustain damage, and at the maturity of the bill, if not before, to the full amount of the current salable value of the debentures. I am at a loss to see how the conduct of Simpson in thus dealing with the debentures, and how the title of the defendant, claiming under him, are to escape the operation of the rule that if the pawnee, except conditionally (an ex- ception for which the authority is but slender), parts with the posses- sion of the pawn, he loses the benefit of his security {Ryall v. Rolle, 1 Atk. 165 ; Beeves v. Capper, 5 Bing. N. C. 136 ; Johnson v. Stear, 15 C. B. N. S. 330 ; 33 L. J. C. P. 130, per Williams, J.) ; or the oper- ation of the maxim nemo plus juris ad alium transferre potest quam ipse habet. For these reasons, as it seems to me, the case of Johnsons. Stear ought not to govern our decision. It could not be followed by us as an authority in favor of the defendant without inattention to its true prin- ciple ; viz., that between the parties to a contract the measure of dam- ages for a breach of the contract must be the same, whether the form of action be ex contractic or ex delicto; and that in such a case, gen- eral rules applicable to the latter form, the only one competent for the redress of injuries purely tortious, are not to be strained to the doing of manifest injustice. It is open also, in a right estimate of it as an authority for the case in hand, to this observation : the interest of a plaintiff in the damages recoverable b}' him for a tort, which is in its true nature a breach of contract, is restricted by the implied stipulations of the contracting parties to the amount which, in the conscience of a jury, may sufHce to give him an adequate compensation. The action of detinue for a chattel, of which the bailment has been abused, against a person not party to the contract of bailment, is not based upon a breach of contract, and not within the rules applicable to actions of tort which are based on breaches of contract. In detinue the plaintiff sues, not for the value tantamount of the thing detained from him, but for the return of the thing itself, which may to him have a value other and higher than its actual value ; and only for its value if the thing can- 15 226 DONALD V. SUCKLING. not be delivered to him (Tidd's Forms, 8th ed. 339), and for damages for its detention and liis costs of suit. A judgment to recover the value only has been reversed for error (Peters v. Seyward, Cro. Jac. 682) ; the integral undiminished thing itself, unaffected by countervailing lien or abatement of whatever kind, being the primarj' object of the suit. In an action of trover for the conversion by the pawnee of the subject of the bailment, the plaintiff, according to the judgment of the majority of the court in Johnson v. Stear, is entitled only to recover the amount, in monej', of the damage which he proves himself to have sustained ; in an action of detinue for the recover}^ from the assignee of the pawnee of the chattel pawned, and of which the pawn has been abused and for- feited, the plaintiff is entitled to recover the chattel itself, because it was a term of the contract of pawn that if the pawn should be abused by the pawnee his right to the possession of it should cease ; and the defendant can have derived no right of possession from one whose own light of possession was determined bj' his attempt to transfer it. Unless, therefore, we were prepared to hold, in disregard of the clearly expressed opinion of Story and Mr. Justice "Williams, that det- inue can in no case lie for an unredeemed pawn, however much the bailment of it may have been abused, we are not at liberty to apply the ratio decidendi in Johnson v. Stear to the case before us. It raises a strong presumption against the defence set up in this plea that nothing bearing the slightest resemblance to the right of possession which it claims for the assignee of a pawnee, is to be found in the copious title of the Digest (Dig. lib. xx. tit. 1), "De pignoribus et hypothecis ; et qualiter ea contrahantur, et de pactis eorum," or in the five following titles of the contract of pawn and hj-pothec and its inci- dents, or in the title, " De pigneratitia actione, vel contra " (Dig. lib. xiii. tit. 7), or in the works of any English, French, or Scotch jurist. The dictum of the majoritj' of the court in the case of Mores v. Con- ham, Owen, 123, 124, that the pawnee has such an interest in the pawn as he may assign over, was not the point decided in that case ; nor, as it seems to me, a point essential to its decision ; the point decided being, that the surrender by the plaintiff of a chattel pawned to him by a third person was a good consideration for a promise hy the defendant to pay the debt for which it had been given as security. It does not seem to follow from that decision that the surenderee thereby acquired such an interest in the pawn as would enable him to defend an action of detinue at the suit of the true owner, the reunion of whose rights of propertj' and possession was, unless they meant to rob him, the real object of the transaction. The inference drawn from this very obscure and superficially' reasoned case in favor of the defendant's plea is wholly irreconcilable with the doctrine of Domat, the highest authority on all questions depending, as this question does, upon the rules and prin- ciples of the Roman civil law, that the bailments of " hj'pothfeque " and " gage " last only as long as the thing hypothecated is in the hands of the person charging it, or the thing pawned in the hands of him who DONALD V. SUCKLING. 227 takes it for his securitj' (Domat, Lois Civiles, liv. iii. tit. 1, s. 1) ; and with the doctrine of Erslciue, a jurist of nearly equal eminence, that " in a pledge of moveables the creditor who quits the possession of the sub- ject loses the real right he had upon it." Institute of the Laws of Scotland, b. iii. tit. 1, s. 33. I thinli that the bailment to Simpson was determined by the pledge by him to the defendant under the circumstances stated in the plea ; that both of them have been guilty of a conversion ; that the plaintiff might (as Mr. Justice Williams said in the case of Johnson v. Stear, 15 C. B. N. S. 341 ; 33 L. J. C. P. 134) lawfully, should the oppor- tunity offer, resume the possession of the debentures, and hold them freed from the bailment; and may — the defendant being remitted to his remedy against Simpson, and Simpson to his remedy upon the bill — recover them, or their full value, if they cannot be delivered to him, in tliis action of detinue. Blackburn, J. [After stating the pleadings.] The plea does not expressly state whether the deposit with the defendant by Simpson was before or after the dishonor of the bill of exchange ; and as against the defendant, in whose knowledge this matter lies, it must be taken that it was before the bill was dishonored, and consequently at a time when Simpson was not yet entitled by virtue of his agreement with the plaintiff to dispose of the debentures. We cannot construe the plea as stating that Simpson agreed to transfer to the defendant, as indorsee of the bill, the security which Simpson had over the debentures, and no more. We must, I think, as against the defendant, construe the plea as stat- ing that Simpson deposited the debentures, professing to give a security on them for repayment of a debt of his own, which may or may not have exceeded the amount of the bill of exchange, but was certainly different from it. And it is quite clear that Simpson could not give the defendant any right to detain the debentures after the bill of exchange was satisfied, so that a replication that the plaintiff had paid, or was ready and willing to pay, the bill would have been good. The defend- ant could not in any view have a greater right than Simpson had. But there is no such replication ; and so the question which is raised on this record, and it is a very important one, is, whether the plaintiff is en- titled to recover in detinue the possession of the debentures, ho neither having paid nor tendered the amount for which he had pledged them with Simpson. In detinue the plaintiff's claim is based on his riglit to have the chattel itself delivered to him ; and if there still remain in Simpson or in the defendant as his assignee, any interest in the goods, or any right of detention inconsistent with tliis right in the plain- tiff, the plaintiff must fail in detinue, though he may be entitled to maintain an action of tort against Simpson or the defendant for the damage, if any, sustained by him in consequence of their unauthorized dealing with the debentures. The question, therefore, raised on the present demurrer is, whether the deposit by Simpson of the debentures with the defendant, as stated 228 DONALD V. SUCKLING. in the plea, put an end to that interest and right of detention till the bill of exchange was honored which had been given to Simpson by the plaintiffs original contract of pledge with him. There is a great difference in this respect between a pledge and a lien. The authorities are clear that a right of lien, properly so called, is a mere personal right of detention ; and that an unauthorized trans- fer of the thing does not transfer that personal right. The cases which established that, before the Factors Acts, a pledge by a factor gave his pledgee no right to retain the goods, even to the extent to which the factor was in advance, proceed on this ground. In Daubigny v. Duval, 5 T. R. 60G, Buller, J., puts the case on the ground that " a lien is a personal right and cannot be transferred to another." In M' Combie v. Davies, 7 Elast, 6, Lord P^llenborough puts the decision of the court on the same ground, saying that " nothing could be clearer than that liens were personal and could not be transferred to third persons by any tortious pledge of the principal's goods." Story, in his Treatise on Bailments, ss. 325-327, is apparently dissatisfied with these decisions, thinking that a factor, who has made advances on the goods consigned to him, ought to be considered as having more than a mere personal right to detain the goods, and that a pledgee from him ought to have been considered entitled to detain the goods until the lien of the factor was discharged. This is a question which can never be raised in this country, for the legislature has intervened, and in all cases of pledges bj' agents, within the Factors Acts, the pledge is now available to the extent of the factor's interest. But on the facts stated on the plea, Simpson was not an agent within the meaning of the Factors Acts ; and we have to consider whether the agreement stated to have been made between the plaintiff and him did confer something beyond a mere lien properly' so called, an interest in the property, or real right, as distinguished from a mere personal rigiit of detention. I think that both in principle and on authority a contract such as that stated in the plea — pledging goods as a securitj', and giv- ing the pledgee power in case of default to dispose of the pledge (when accompanied by an actual delivery of the thing) — does give the pledgee something beyond a mere lien ; it creates in him a special property or interest in the thing. By the civil law such a contract did so, though there was no actual delivery of possession ; but the right of hj'pothec is not recognized by the common law. Till possession is given, the in- tended pledgee has only a right of action on the contract, and no interest in the thing itself. Howes v. Ball, 7 B. & C. 481. I mention this because in the argument several authorities, which only go to sliow that a delivery of possession is, according to the English law, necessary for the creation of the special property of the pawnee, were cited as if they determined that possession was necessary for the continuance of that property. The effect of the civil law is thus stated by Story, in his Treatise on Bailments, s. 328 : " It enabled the pawnee to assign over, or to pledge DONALD V. SUCKLING. 229 the goods again, to the extent of his interest or lien on tliem ; and in either case the transferee was entitled to hold the pawn until the orifi- ual owner discharged the debt for which it was pledged. But beyond this the (second) pledge was inoperative and conveyed no title, accord- ing to the known maxim, nemo plus juris ad alium transferre potest quam ipse haberet." In England there are strong authorities that the contract of pledge, when perfected by delivery of possession, creates an interest in the pledge, which interest may be assigned. This was the very point de- cided by the court in Mores v. Conham, Owen, 123, 124, where the court say that the pawnee is responsible " if he misuseth the pawn ; also he hath such interest in the pawn as be may assign over, and the assignee shall be subject to detinue if he detains it upon payment of the money by the owner." It is true that one judge, Foster, J., dis- sented on this very point. That may so far weaken the authority of the decision ; but it shows that there could be no mistake in the re- porter, and no oversight on the part of the majority, but that it was a deliberate decision. It is laid down by Lord Holt, in his celebrated judgment in Coggs v. 'Bernard, 2 Ld. Raj'm. 916, that a pawnee " has a special propertj', for the pawn is a securing to the pawnee that he shall be repaid his debt, and to compel the pawnor to pay him," language certainly seem- ing to indicate an opinion that he has an interest in the thing, or real right, as distinguished from a mere personal right of detention. And Story, in his Treatise on Bailments, s. 327, says : " But whatever doubt may be indulged as to the case of a factor, it has been decided " — that is, in America — ' ' that in case of a strict pledge, if the pledgee transfers the same to his own creditor, the latter may hold the pledge until the debt of the original owner is discharged." In Whitaker on Lien, published in 1812, p. 140, the law is laid down to be, that the pawnee has a special property bej'ond a lien. I do not cite this as an authority of great weight, but as showing that this was an existing opinion in England before Story wrote his treatise. But there is a class of cases in which a person having a limited interest in chattels, either as hirer or lessee of them, dealing tortiously with them, has been held to determine his special interest in the things, so that the owner may maintain trover as if that interest had never been created. But I think in all these cases the act done by the party having the limited interest was wholly inconsistent with the contract under which he had the limited interest ; so that it must be taken from his doing it tliat he had renounced the contract, which, as was said in Ifenn v. Bittleston, 7 Ex. 160 ; 21 L. J. Ex. 43, operates as a disclaimer of a tenancy at common law ; or, as it is put by Williams, J., in Johnson v. Stear, 15 C. B. N. S. 330, 341 ; 33 L. J. C. P. 130, 134, he may be said to have violated an implied condition of the bailment. Such is the case where a hirer of goods, who is not to have more than the use of them, destroys them or sells them ; that being so wholly at variance with the purpose for which 230 DONALD V. SUCKLING. he holds them, that it may well be said that he has renounced the con- tract by which he held them, and so waived and abandoned the limited right which he had under that contract. It may be a question whether it would not have been better if it had been originally determined that, even in such cases, the owner should bring a special action on the case and recover the damage which he actually sustained, which maj' in such cases be very trifling, though it may be large, instead of holding that he might bring trover, and recover the whole value of the chattel without any allowance for the special propertj'. But I am not pre- pared to dissent from these cases, where the act complained of is one wholly repugnant to the holding, as I think it will be found to have been in every one of the cases in which this doctrine has been acted upon. But where the act, though unauthorized, is not so repugnant to the contract as to show a disclaimer, the law is otherwise. Thus, where the hirer of a horse for two daj-s to ride from Gravesend to Nettle- sted deviated from the straight waj- and rode elsewhere, it was held that the hirer had a good special property for the two daj's, and although he misbehaved by riding to another place than was intended, that was to be punished by an action on the case, and not by seizing the geld- ing, iee V. Atkinson, Yelv. 172. This certainly' was a much more equitable decision than if a rough rule had been laid down that every deviation from the right line, however small, was to operate as a for- feiture of the right to use the horse for which the hirer had paid ; and it may be reconciled to the decisions already referred to, because the wrongful use, though wrongful, was not such as to show a renunci- ation of the contract with the owner of the horse. Now, I think that the sub-pledging of goods held in security' for money, before the money is due, is not in genei'al so inconsistent with the contract as to amount to a renunciation of that contract. There may be cases in which the pledgor has a special personal confidence in the pawnee, and therefore stipulates that the pledge shall be kept by him alone, but no such terms are stated here, and I do not think that any such term is implied by law. In general, all that the pledgor requires is the personal contract of the pledgee that on bringing the money the pawn shall be given up to him, and that in the meantime the pledgee shall be responsible for due care being taken for its safe custodj-. This maj' very well be done though there has been a sub pledge ; at least the plaintiff should try the ex- periment whether, on bringing the money for which he pledged those debentures to Simpson, he cannot get them. And the assignment of the pawn for the purpose of raising money (so long at least as it pur- ports to transfer no more than the pledgee's interest against the pledgor) is so far from being found in practice to be inconsistent with, or repugnant to, the contract, that it has been introduced into the Fac- tors Acts, and is in the civil law (and according to Mores v. Conhnm, Owen, 123, in our own law also) a regular incident in a pledge. If it is done too soon, or to too great an extent, it is doubtless unlawful, but not so repugnant to the contract as to be justly held equivalent to & renunciation of it. DONALD V. SUCKLING. 231 The cases of Bloxam v. Sanders, 4 B. & C. 941, and Milrjate v. JTebble, 3 M. & G-. 100, are cases of unpaid vendors, and therefore are not authorities directlj' applicable to a case of pledge. But the position of a partially unpaid vendor, who irregularly sells the goods which have only been partially paid for, is very analogous to that of a pledgee ; and in Milgate v. KebUe, Id. 103, Tindal, C. J., is reported to have used language that seems to indicate that in his opinion a pledgor could not have maintained trover anymore than the vendee in that ease. But the latest case, and one which I think is binding on this court, is that ofJohnsonv. Stear, 15 C. B. N. S. 330 ; 33 L. J. C. P. 130 ; and I think that the decision of the majoritj'of the Court of Common Pleas in that case is an authority that at all events there remains in the pawnee an interest not put an end to by the unauthorized transfer, such as is in- consistent with a right in the pawnor to recover in detinue. In that case the goods had been pledged as a security for a bill of exchange, with a power of sale if the bill was not paid at maturity. The pledgee sold the goods the day before he had a right to do so. The assignees of the bankrupt pledgor brought trover, and sought to recover the full value of the goods without any reduction. Williams, J., thought that thej' were so entitled, giving as his reason " that the bailment having been terminated bj' the wrongful sale, the plaintiff might have resumed possession of the goods freed from the bailment, and might have held them rightfully when so resumed, as the absolute owner against all the world." 15 C. B. N. S. 341 ; 33 L. J. C. P. 134. And if this was cor- rect, the present plaintiff is entitled to judgment. But the majority of the court decided that " the deposit of the goods in question with the defendant, to secure repayment of a loan to him on a given day, with power to sell in case of default on that day, created an interest and a right of property' in the goods which was more than a mere lien ; and the wrongful act of the pawnee did not annihilate the contract between the parties, nor the interest of the pawnee in the goods under that con- tract." 15 C. B. N. S. 334, 335 ; 33 L. J. C. P. 131. This can be rec- onciled with the cases above cited, of which Fenn v. JBittlesion, 7 Ex. 152; 21 L. J. Ex. 41, is one, bj' the distinction that the sale, though wrongful, was not so inconsistent with the object of the contract of pledge as to amount to a repudiation of it, though I own that I do not find this distinction in the judgment of Johnson v. Stear, 15 C. B. N. S. 330 ; 33 L. J. C. P. 130. It may be that the conclusion from these premises ought to have been that the defendant was entitled to the verdict, on the plea of not possessed in trover, unless the court thought fit to let the plaintiff, on proper terms, amend by substituting a count for the improper sale ; but this point as to the pleading does not seem to have been presented to the Court of Common Pleas. The fact that they diflfered from Williams, J., shows that after consideration they meant to decide that the pledge gave a special property, which still continued ; and though I have the highest respect for the authority of Williams, J., I think we must, in a court of co-ordinate jurisdiction, 232 HALLIDAY V. HOLGATB. act upon the opinion of the majority, even if I did not think, as I do, that it puts the law on a just and convenient ground. And as already intimated, I think that unless the plaintiff is entitled to the uncontrolled possession of the things, he cannot recover in detinue. For these reasons, I think we should give judgment for the defendant.* Keighley and Gething, for the plaintiff. Edmunds and Mayhew, for the defendant.^ HALLIDAY v. HOLGATE. Exchequer. 1868. [Reported L. R. 3 Ex. 299.] Appeal from the judgment of the Court of Exchequer, discharging a rule to enter a verdict for the plaintiff in an action of trover brought by the creditors' assignee of one Bentley against the defendant to recover the value of certain shares, the defendant pleading, amongst other pleas, not possessed. On the 30th of April, 1866, Bentley bought of one Scholefield fifteen shares in the "Whitewell Mining Company, limited, which, by the ar- ticles of association of the companj-, were not transferable till the 2d of January, 1867, and Scholefield at the same time, by a memorandum in writing, agreed to execute a transfer of the shares to Bentley as soon as he legally could. Bentley at the same time bought ten other shares in the same company, and took a similar memorandum. In June, 1806, Bentlej' borrowed of the defendant £350 on his own promissory' note paj'able on demand, and on the security of the twenty- five shares above mentioned, and he at the same time handed to the defendant the two agreements, promising to deliver to him the scrip as soon as he received it. On the 16th of January, 1867, Bentley banded to the defendant the fifteen scrip certificates for the first fifteen shares, and received back the agreement relating to the ten shares, on paying £100 on account of the debt. On the same day Bentley's firm stopped payment ; they were after- wards adjudicated bankrupts, and the plaintiff was appointed creditors' assignee, Bentley absconding before passing his final examination. The defendant, after the bankruptcy, sold the scrip of ten of the fifteen shares, but it did not appear that he had made any demand on, or given notice to, either Bentley or the plaintiff, the assignee. The value of the scrip for the ten shares was admitted to be £200. The cause was tried before Mellor, J., at the Liverpool Spring 1 The opinions of Cockbokn, C. J., and Melloe, J., concurring with Black- born, J., are omitted. — Ed. " Tally V. Freedman's Savings Sr Trust Co., 93 TJ. S. 821 ; Wittiams v. Ashe, 111 Cal. 180, accord. See Van Arsdale v. Joiner, 44 Ga. 173. — Ed. HALLIDAY V. HOLGATE. 233 Assizes, 1867, and the learned judge nonsuited the plaintiff, reserving leave to him to move to enter a verdict for him for £200, or such other sum as the court should tliink fit. A rule was obtained accordingly, and was, after argument in the court below, in Hilary Term last, dis- charged on the authority of Donald v. /Suckling, Law Rep. 1 Q. B. 585. The plaintiff appealed. Jordan, for the appellant. Quain, Q. C. {Herschell with him), was not called upon. The judgment of the court (Willes, Blackburn, Keating, Monta- gue Smith, and Lush, JJ.) was delivered by Willes, J. We are all of opinion that this judgment must be affirmed. The action is brought by an assignee in bankruptcy to re- cover the value of certain scrip certificates of the bankrupt, alleged to have been converted by the defendant. The defendant was under advances to the bankrupt, in respect of which the bankrupt pledged to tlie defendant the certificates in question. The bankrupt became in default, and absconded, and the defendant thereupon sold a part of the certificates sufliicient to repay the whole or part of the amount due to him. The assignee seeks to recover either the whole value or nominal damages in respect of the wrong done by the sale. As to the claim for the whole value, it is certainly a strong contention. The scrip certifi- cates were in the hands of the defendant as a security for money due, and the assignee has sustained no actual damage, for the debt could have been paid no otherwise, yet the assignee seeks to recover the whole value as if at the time the certificates were his own. It does not require much argument to show that there is no principle for such a rule, and we should not be disposed to act upon it unless we are com- pelled by some authority to do so. But the authorities invite us to do the reverse, for Johnson v. Stear, 15 C. B. (N. S.) 330 ; 33 L. J. (C. P.) 130 shows that if any action lies at all in such a case, the verdict can only be for nominal damages, and that an allowance must be made for the amount of the debt which has been thus satisfied, that being the amount which the pledgor or his assignee would have had to pay before he could have required the article to be delivered up. We are quite satisfied to abide b\' that decision. But it has been argued that the plaintiff is at any rate entitled to nominal damages, for that a conversion was committed by the sale of the certificates. That sale, it is contended, had the effect of putting an end to the bailment of pledge ; the property of the pledgee was thereby determined, so as to enable the assignee to say that at the moment when the sale took place he became entitled to the certificates by virtue of the general property which then revested in him. This reasoning pro- ceeds upon a somewhat subtle and narrow ground, for it is admitted that the assignee could only claim nominal damages. But we cannot arrive at the conclusion that he is so entitled without getting rid of the case of Donald v. Suckling, Law Rep. 1 Q. B. 585 ; and so far from feeling disposed to overrule that case, we are satisfied of its good sense, 234 HALLIDAY V. HOLGATB. and think that it puts the whole matter on a plain and intelligible foot- ing. Ttiere are three kinds of securitj' : the first, a simple lien ; the second, a mortgage, passing the propertj' out and out ; the third, a security intermediate between a lien and a mortgage — viz., a pledge — where bj' contract a deposit of goods is made a security for a debt, and the right to the property vests in the pledgee so far as is necessary to secure the debt. It is true the pledgor has such a property in the ar- ticle pledged as he can convej' to a third person, but he has no right to the goods witliout paj-ing off the debt, and until the debt is paid off the pledgee has the whole present interest. If he deals with it in a manner other than is allowed by law for the payment of his debt, then, in so far as by disposing of the reversionarj- interest of the pledgor he causes to the pledgor any difficulty in obtaining possession of the pledge on payment of the sum due, and thereby does him any real damage, he commits a legal wrong against the pledgor. But it is a contradiction in fact, and would be to call a thing that which it is not, to say that the pledgee consents bj' his act to revest in the pledgor the immediate interest or right in the pledge, which by the bargain is out of the pledgor and in the pledgee. Therefore, for any such wrong an action of trover or of detinue, each of which assumes an immediate right to possession in the plaintiff, is not maintainable, for that right clearly is not in the plaintiff. The judgment must, therefore, be affirmed. Judgment affirmed} 1 Contra, Peige v. Burt, 118 Mich. 243 ; Wilson v. Little, 2 Comst. 443 (but cf. Lewis V. Mott, 36 N. Y. 395) ; Neiler v. Eelleii, 69 Pa. St. 403. See Baltimore Marine Ins. Co. V. Dalrymph, 25 Md. 269. " The Massachusetts cases declare that a tender is necessary to enable the pledgor to maintain trover against the pledgee for a conversion of securities, when the lien created by the pledge has not been otlierwise disciiarged. Neitlier the English nor the Massachusetts cases, however, determine what amounts to a sufficient tender, although there are expressions which indicate tliat a tender good at common law is required. When replevin or detinue is brought, tliere may be a substantial reason why there should be an actual tender, because the plaintiff, if he recover judgment, recovers or may recover the possession of the property, and the court might well order the money tendered paid into court before entering such a judgment. There is a technical reason why a formal tender may be held necessary in trover; because, if the lien created by the pledge has not been otherwise discharged, it may be held that it can be discharged only by the payment of the debt, or, if the defendant will not receive payment, by a tender of payment, which is the only thing the common law considers as in any respect an equivalent of payment ; and trover can only be maintained when the lien has been discharged, and the plaintiff is entitled to the im- mediate possession of the property. But as the damages in trover are the value of the property less the amount of the debt, except for this technical reason, a want of a formal tender would not be a greater objection against maintaining trover than against maintaining an action for a breach of the contract to keep the property safely, and to deliver it to the pledgor on payment of the debt. Perhaps in contract, strictly speaking, no breach is shown by a failure to return the security unless the debt is paid or there has been a good common law tender of payment, but there are cases which hold that a formal tender is unnecessary." Field, J., in Cumnock v. Newburyport Savings Inst., 142 Mass. 342, 346. In Rush V. First Nat. Bank, 71 Fed. R. 102 ; Waring v. GaskiU, 95 Ga. 731 ; Rich- ardson V. Ashby, 132 Mo. 238 ; and Stearns v. Marsh, 4 Benio, 227, it was held that in WHIPPLE V. BUTTON. 235 "WHIPPLE V. BUTTON. SuPKEMB Judicial Court of Massachusetts. 1900. [Reported 175 Mass. 3G5.] Tort, by the assignees in insolvency of the estate of the Beacon Cycle Manufacturing Company, for the conversion of five hundred bicycles. Trial in the Superior Court, without a juiy, before J^illey, J., who allowed a bill of exceptions, in substance as follows. During the years 1892 and 1893 the Beacon Cycle Manufacturing Company, a corporation, was engaged in Westborough in the manu- facture and sale of bicycles. On June 26, 1893, the corporation entered into an agreement in writing with the defendants, which recited that the corporation had simultaneously delivered to the defendants five hundred "Nomad" bic^'cles for the purpose of securing money for its use as a corporation, and had executed and delivered therewith its three promissory notes, each for $4,166.67, of even date, p.ayable in thirty, sixty, and ninety days from date, the amount of the notes being made up by calling each of the bicj'cles of the value of $25 each ; that if the first note was paid, the defendants should release one third of the five hundred bicycles on being paid $26 for each bicjxle, the amount of the note being payment so far as the bicj'cles released, but if the note was not paid, then one third of the bicycles should be the absolute property of the defendants ; that if the second note was paid, another one third of the bicj'les should be released on the paj-ment of $27 a bicycle ; and if the third note was paid, then the remainder of the bicycles should be released on the payment of $28 each therefor, but if each note was not paid, then such one third of the bicycles should be the absolute property" of the defendants ; and that the whole number of bicj'cles might be released at the maturity of the first note " by paying $26 for the whole number of the five hundred bicycles, the other two notes to be then given up." The five hundred bicycles were not delivered to the defendants as recited in this agreement, and later the same day the corporation ex- ecuted tlie following paper: "This instrument entitles Houghton & a suit on the pledgor's obligation, the pledgor could claim to have the damages re- duced by the value of the securities pledged which had been unlawfully sold, and that lie need make no tender of the debt. And, conversely, that the pledgee may recoup the amount of his debt when sued by the pledgor for the conversion of the pledge, was held in Van Arsdale v. Joiner, 44 Ga. 173; Belden v. Perkins, 78 111. 449; Feige v. Burt, 118 Mich. 243 ; Hallack Lumber Co. v. Gray, 19 Col. 149. As to what olianges In the property pledged may be lawfully made by the pledgee, see Daij v. Holmes, 103 Mass. 306 ; Fay v. Gray, 124 Mass. 500. In most jurisdictions, a distinction is drawn between a. pledgee of commercial paper and a pledgee of other personal property. In general the latter can sell on default by and notice to the pledgor ; but the former must hold and collect the se- curity as it becomes due. Richardson v. Ashhy, 132 Mo. 238, 246. — Ed. 236 "WHIPPLE V. DUTTOK. Dutton to the delivery to them of five hundred Nomad bicj-cles, the same being an accepted order for said number of machines to be de- livered to them as they may request, as rapidly as one hundred and fifty per week ; and this delivery is to be on the terms of our agreement with them dated June 26, 1893, and is hereby made a part thereof ; said machines having been paid for in cash and agreements." Wheels to the number of three hundred and forty-four were delivered to the defendants in June and Julj', 1893, at various times, and as delivered the defendants advanced to or paid the corporation at the rate of |25 a wheel. The balance of the five hundred wheels was never delivered, and the last of the three notes mentioned in the agreement was not used by the defendants or presented for payment. The corporation did not pay the notes referred to in the agreement at their maturity, and has never paid the same or any part thereof, but on October 7, 1893, was declared insolvent by the court of insolvencj' for the county of Worcester upon a petition by one of its creditors, and on October 31, 1893, the plaintiffs were duly appointed assignees of the insolvent estate. On October 12, 1893, the defendants began to sell the bicycles re- ceived under the agreements, at private sale and singly or in small lots, and all of them had been sold before June, 1894. The defendants did not serve sMy notice upon the corporation or upon the plaintiffs of an intention to sell ; but the secretary of tlie corporation knew that sales were being made, and in general as to the price, and there was no evidence that he objected thereto. The sales were made openly at the large establishment of the defendants in Boston ; and the bicycles were exhibited in the defendants' windows, where they were seen by an officer of the corporation. It was not contended that the defendants did not use good judgment and diligence in effecting sales at favorable prices, the plaintiffs con- tending that the defendants had no right to sell at all. In September, 1894, before the bringing of the writ, one of the plaintiffs called upon counsel for the defendants, to whom he had been referred by the defendants, and was informed that all the bicycles had been sold bj' the defendants, and that therefore thej' could not return them if demanded ; and in reply to an inquiry whether a tender would be required, stated that it would do no good to make any demand or tender. He further stated that upon failure of the corporation to pay its notes, he considered that the bicycles mentioned in the agreement became absolutely the property of the defendants ; and that they recog- nized no rights of the assignees to recover the value of the goods. There was evidence that the bicycles were worth from $50 to $80 apiece. The judge ruled, as requested by the defendants, that the plaintiffs were not entitled to recover, and found for the defendants ; and the plaintiffs alleged exceptions. BLOSS V. HOLMAN. 237 W. E. Sears, for the plaintiffs. M A. Whitman, for the defendants. Morton, J. We assume, as the defendants contend, that the trans- actions of June 26 constituted a pledge of the bicycles received by the defendants, and that the subsequent sales as made by the defendants were unauthorized. But it does not follow that the plaintiffs are en- titled to recover the value of the bicycles thus sold. The defendants had possession of the bicycles, and had a lien on them for sums lent to the bicycle company which were overdue and unpaid. They had a right to foreclose the pledge in any manner authorized by law. The plaintiffs contend that they foreclosed in a manner unauthorized by law. But the only effect, it seems to us, of the unauthorized sales by the defend- ants was to entitle the plaintiffs to recover any damages sustained thereby. The plaintiffs admit in substance that the defendants used good judgment and diligence in selling and that the sales were effected at favorable prices, and it does not appear that the proceeds were more than enough to pay what was due the defendants. Under such circum- stances we fail to see how the plaintiffs have sustained any damage. It would be singular if, having a right to foreclose the pledge, the defendants should be held to have lost their lien and to be liable for the value of the bicycles, because, without inflicting any damage thereby on the pledgor, they went the wrong way about the fore- closure, or claimed a greater right than thej' actually had. We do not think that such is the law. See Dahill v. Booker, 140 Mass. 308 ; 'Farrar v. Paine, 173 Mass. 58 and cases cited ; Halliday v. Solgate, L. R. 3 Ex. 299 ; Johnson v. Stear, 15 C. B. (N. S.) 330. Other questions have been raised and argued which, in consequence of the views expressed above, it does not seem to us necessary to consider. Exceptions overruled. E. Actions of Bailor against Bailee, Lit. § 71. ... If I lend to one my sheepe to tathe his land, or my oxen to plow the land, and he killeth my cattell, I may well have an action of trespass against him, notwithstanding the lending. BLOSS V. HOLMAN. Common Pleas. 1587. [Reported Owen, 52.] John Bloss brought an action of trespass, quare vi et armis, for taking of his goods, against Holman, and the defendant pleaded not 238 BEYANT V. WAEDELL. guilt}-, and the jurj' gave a special verdict, namely, that the plaintiff at ttie time of the trespass was of the M^-sterj' of the Mercers, and that at that time the defendant was his servant, and put in trust to sell his goods and merchandises in shopa sua, ibidern, de tempore in tempus, and that he took the goods of the plaintiff named in the declaration, and carried them away, and prayed the advice of the court, if the defendant were culpable or not ; and upon the posiea returned, Shuttleworth in-ayed judgment for the plaintiff. And the doubt was because the declaration was quare vi et armis, because it appeared that the defendant had cus- tody of the goods ; but Shuttleworth doubted whether he had custody, and cited the case of Littleton, namely, If I give m}' sheep to compas- ture, &c. and he kills them, an action of trespass lies ; and the justices held that in this case the action did well lie ; and Periam said tliat the defendant had only an authoritj-, and not custody or possession ; and judgment was given for the plaintiff. 3 H. 7, 12 ; 21 H. 7, 14. And Windham said, that if he had embezzled his master's goods, without question it was felonj-. Quod fait concessum (Anderson absent), and the law will not presume that the goods were out of the possession of the plaintiff ; and the next da}- came the Lord Anderson and re- hearsed the case, and said, that the defendant had neither general nor special property in the goods, for it is plain he could have no general property, and special he had not, for he could not have an action of trespass if they were taken awaj', then if he had no propertj', a tres- pass lies against him, if he take them ; so if a shepherd steal sheep, it is felonj', for he hath no property in them ; wherefore he gave judg- ment accordingly.^ BRYANT V. WAEDELL. Exchequer. 1848. [Reported 2 Exch. 479.] Trover for theatrical dresses and other propertj'. Pleas : not guilty, and not possessed ; upon which issue was joined. At the trial of the cause, before Parke, B., at the Middlesex sittings in the present term, it appeared that the plaintiff and the defendants, in the j'ear 1845, with ^ 8. c. sub nom. Glosse ^ Sayman's Case, 1 Leon. 87 ; and s. c, semble, Anonymous, Moore, 248, pi. 392. " It is important to note exactly the difference between a mere serrant and a bailee. If A. gives goods to B. e. g. a carrier, A. retains tlie right to possess the goods, but he passes the possession itself to B. If, on the other hand, B. is not a carrier, but a mere servant, A., though he may give the custody or detention of tlie goods to B., does not pass to him the possession of them. Hence B., the bailee, has, as against third parties, a right to possession, and can bring trover ; but B. tlie servant having no possession, has no right to possession, and cannot bring trover. It is conceived, that if B. should be in any way acting, not only as a servant, but also as a bailee, he might bring an action for the conversion of the goods." Dicey, Parties, 358, note (c). BEYANT V. WAEDELL. 239 a view to the exhibition of a dwarf of the name of Richard Garnsej-, entered into the following agreement: "Memorandum of agreement made the 29th of December, 1845, between W. Biyant, of the one part, and R. Wardell, N. Dormer, and T. R. Lewis, of the other part. For the considerations hereinafter mentioned, the said W. B. herebj' agrees to permit and allow E. Garnsej', otherwise called ' the miniature John Bull,' to be publicly exhibited by the said E. W., N. D., and T. E. L., for twelve calendar months from the date hereof, either in London, or w^ithin eightj- miles thereof ; and the said E. W., N. D., and T. R. L. shall have the exclusive control of such exhibition, and of the arrange- ment connected therewith ; and they herebj' agree to bear and pny all the expenses whatever which may be in any way incurred in connection with such exhibition. That the said R. W., N. D., and T. R. L., shall retain, receive, and be paid three fourths of the clear profits arising from the said exhibition, and the said W. B. shall receive or be paid the remaining one fourth of such profits. That this agreement shall continue and remain in full force for twelve calendar months certain ; and in case the said R. W., N. D., and T. R. L., shall be desirous, at the expiration of such term, to continue the same for six calendar months longer, they shall be at liberty to do so ; and in that case, the said W. B. shall, during such six calendar months, receive and be paid one half of the profits arising from the said exhibition, instead of one fourth. That James Garnsey, the father of the said R. G., shall be employed by the said parties hereto, at a salary of 15s. per week for twelve calendar months certain, provided this agreement shall remain in full force, and for such further time as such exhibition shall be con- tinued, such salary to be considered as part of the expenses of the said exhibition. Tliat the sum of 30s. per week shall be paid to the said J. G. and his wife, for twelve calendar mouths certain, or for such other or further time as such exhibition shall be continued ; such payments shall be considered and form part of the expenses thereof. That A. "Whitwham shall be employed by the said parties hereto for the first six weeks of the said exhibition, and the said W. B. shall be employed for three months next after the expiration of the said six weeks ; and afterwards, the said A. W. and W. B. shall be employ-ed alternately, so long as such exhibition shall be continued. That the said parties hereto are to be allowed to have the use of certain property and dresses during the said exhibition, and at the expiration of this agreement such property and dresses are to be given up to the said W. B. That the said W. B. or A. W. shall be at liberty to act as check-taker at such exhibition, or to appoint a person for such purpose at their own ex- pense. That the said N. D. having, on the 27th day of December instant, advanced and paid the said W. B. the sum of £40 for the use of the said propertj- and dresses, such sum of £40 is to be repaid to the said N. D. out of the first profits of the said exhibition. That the expenses of and connected with the said exhibition shall commence this day. That the accounts of and relating to such exhibition shall be set- 240 BEYANT V. WARDELL. tied, and the balance and the profits ascertained and divided between the parties hereto, every fortnight." After this agreement had been entered into, the property in question was disposed of in a different waj', but the jury found a verdict for the stage and scener}' onl^'^, which, at the end of the term, were not delivered, but during the term were taken to pieces and applied — and this the jury found to have been done by all the defendants — in constructing a different sort of stage at a different exhibition. It was objected by the defendants' counsel that the plaintiff and defendants were partners under the terms of the agreement; and, secondl}-, that the plaintiff had not, at the time of the conversion, such a property in the goods as would maintain the action. The learned judge, however, was of a contrary opinion, and the plain- tiff had a verdict. Ogle now moved for a new trial on the ground of misdirection. Pollock, C. B. We are all of opinion that there ought to be no rule in this case. In the first place, we think that the construction which was put upon the contract at the trial is correct. It is clear from several parts of the agreement that the words " the said parties" mean parties other than Bryant. For in one part of it there is a statement that "Whilwham shall be employed by the said parties " for a certain time, and " the said W. Bryant shall be emploj'ed" for another period. Now, it is clear that Brj-ant was not to be emploj'ed bj' himself, but by the three defendants. And in the succeeding clause the same words — the said parties — must mean the three defendants. There was, there- fore, no partnership between the plaintiff and defendants in the prop- erty in question. As to the other point, we are clearly of opinion that trover is the proper form of action here, notwithstanding the continu- ance of the contract under which the goods had been bailed to the defendants. The case of Cooper v. Willomatt, 1 C. B. 672, is a de- cisive authority upon this point. It was there held that a bailee of goods for hire, by selling them, determines the bailment ; and the bailor ma}' maintain trover against the purchaser, though the purchase was bona fide. The cases on the subject are referred to there. The rule is, that where there has been a misuser of the thing lent, as by its destruction, or otherwise, there is an end of the bailment, and the action for trover is maintainable for the conversion. Mule refused.''- Parke, B., Eolfe, B., Platt, B., concurred. 1 See Farrant v. Thompson, 5 B. & Aid. 826; Fenn v. Bittleston, 7 Exch. 152. •WILBY V. BOWEE. 241 F. Actions of Bailor against Third Person. WILBY V. BOWER. Nisi Pkids. 1649. [Reported Clayton, 135, pi. 243.] The plaintiflf did deliver his horse to be kept at grass, and the de- fendant took him away from the pasture, &c., and the plaintiff brought trespass, and the judge overruled it that the action would not lie in this case, because the horse was in the possession of another, which was against my opinion being of counsel with the plaintiff, because the ac- tion is transitory, and he is in the owner's possession everywhere, and if I give my horse in London to L S., I, being then at York, he may have trespass without other possession. F.N. B. 140; Perkins, 30; 21 E. 4, 25 ; 21 H. 7, 39 ; 21 H. 6, 43. WARD V. MACAULEY. King's Bench. 1791. [Reported i T. R. 489.] The plaintiff was the landlord of a house, which he let to Lord Mont- fort ready furnished; and the lease contained a schedule of the furni- ture. An execution was issued against Lord Montfort, under which the defendants, sheriff of Middlesex, seized part of the furniture, not- withstanding the officer had notice that it was the property of the plain- tiff. For this the plaintiff brought an action of trespass against the defendants. At the trial Zord Kenyan thought that trespass would not lie, and that the plaintiff should have brought trover. A verdict, however, was taken for the plaintiff for value of the goods, with liberty to the defendants to move to enter up a nonsuit if this court should be of opinion that the plaintiff could not recover in this form of action. Mingay obtained a rule for that purpose on a former day ; against which Erskine now showed cause. Lord Kenton, Ch. J. The distinction between the actions of tres- pass and trover is well settled ; the former is founded on possession, the latter on property. Here the plaintiff had no possession ; his rem- edy was by an action of trover founded on his property in the goods taken. In the case put of a carrier, there is a mixed possession : actual possession in the carrier, and an implied possession in the owner. 16 242 GORDON V. HAEPEE. BuLLEE, J. The carrier is considered in law as the servant of the owner, and the possession of the servant is the possession of the master. Pee Cueiam, Hule absolute.'- GORDON V. HARPER. King's Bench. 1796. [Beported 7 T. R. 9.] In trover for certain goods, being household furniture, a verdict was found for the plaintiff, subject to the opinion of this court on the follow- ing case : On October 1st, 1795, and from thence until the seizing of the goods by the defendant, as after mentioned, Mr. Biscoe was in possession of a mansion-house at Shoreham and of the goods in ques- tion, being the furniture of the said house, as tenant of the house and furniture to the plaintiff, under an agreement made between the plaintiff and Mr. Biscoe, for a term which at the trial of this action was not ex- pired. The goods in question were on the 24th of October taken in execution by the defendant, then sheriff of the County of Kent, by vir- tue of a writ of testatum fieri facias issued on a judgment at the suit of J. Broomhead and others, executors of J. Broomhead deceased, against oneBorrett, to whom the goods in question had belonged, but which goods, previous to the agreement between the plaintiff and Mr. Biscoe, had been sold by Borrett to the plaintiff. The defendant after the seiz- ure sold the goods. The question is, whether the plaintiff is entitled to recover in an action of trover. Burrough, for the plaintiff. Best, contra. LoKD Kenyon, Ch. J. The only point for the consideration of the court in the case of Ward v. Macauley was, whether in a case like the present the landlord could maintain an action of trespass against the sheriff for seizing goods, let with a house, under an execution against tlie tenant ; and it was properly decided that no such action could be maintained. What was said further by me in that case, that trover was the proper remedy, was an extrajudicial opinion, to which, upon further consideration, I cannot subscribe. The true question is, whether when a person has leased goods in a house to another for a certain time, whereby he parts with the right of possession during the term to the tenant, and has only a reversionary interest, he can, notwithstanding, recover the value of the whole property pending the existence of the term in an action of trover. The very statement of the proposition affords an answer to it. If, instead of household goods, the goods here taken had been machines used in manufacture [1 McFarland v. Smith, 1 Miss. 172, accord. — Ed. GORDON V. HARPER. 243 which had been leased to a tenant, no doubt could have been made but that the sheriff might have seized them under an execution against the tenant, and the creditor would have been entitled to the beneficial use of the property during the term ; the diflference of the goods then can- not vary the law. The cases which have been put at the bar do not apply ; the one on which the greatest stress was laid was that of a tenant for 3-ears of land whereon timber is cut down, in whic-ii case it was truly said, that the owner of the inheritance might maintain trover for such timber, notwithstanding the lease. But it must be remembered that the only right of the tenant is to the shade of the tree when growing, and by the very act of felling it his right is absolutelj- determined ; and even then the property does not vest in his immediate landlord ; for if he has only an estate for life it will go over to the owner of the inherit- ance. Here, however, the tenant's right of possession during the term cannot be devested bj' any wrongful act, nor can it thereby be revested in the landlord. I forbear to deliver any opinion as to what remedy the landlord has in this case, not being at present called upon so to do ; but it is clear that he cannot maintain trover. AsHHURST, J. I have always understood the rule of law to be, that in order to maintain trover the plaintiff must have a right of property in the thing, and a right of possession, and that unless both these rights concur the action will not lie. Now here it is admitted that the tenant had the right of possession during the continuance of his term, and consequently one of the requisites is wanting to the landlord's right of action. It is true that in the present case it is not verj' probable that the furniture can be of anj* use to anj' other than the actual tenant of the premises ; but supposing the things leased had been manufacturing engines, there is no reason why a creditor, seizing them under an exe- cution, should not avail himself of the beneficial use of them duriug the term. Grose, J. The only question is, whether trover will lie where the plaintiff had neither the actual possession of the goods taken at the time nor the right of possession. The common form of pleading in such an action is decisive against him ; for he declares that being possessed, &c. he lost the goods ; he is therefore bound to show either an actual or virtual possession. If he had a right to the possession, it is implied by law. Where goods are delivered to a carrier, the owner has still a right of possession as against a tort-feasor, and the carrier is no more than his servant. But here it is clear that the plaintiff had no right of pos- session ; and he would be a trespasser if he took the goods from the tenant. Then by what authority can he recover them from any other person during the term? It is laid down in some of the books (Vid. 1 Bac. Abr. 45, and 5 Bac. Abr. 257, 2 Com. Dig. tit. Detinue, letter D.) tliat trover lies where detinue will lie, the former having in modern times been substituted for the old action of detinue. I will not say that it is universally true that the one action maj' be substituted for the other, because the authorities referred to in support of that proposition do not 244 GORDON V. HARPEK. apply to that extent ; but certainly it may be said to be a good general criterion. But it is clear in this case that detinue would not lie, because the plaintiff had no right to the possession of the specific goods at the time. And if not, it is a strong argument to show that trover, which was substituted in lieu of it, cannot be maintained by the present plain- tiff. Much stress has been laid on what was said in Ward v. Macauley. But the only question there was, whether trespass would lie under these circumstances ; and it was not necessary to determine how far trover might be maintained. It appears now verj' clearly upon examining that point that trover will not lie in auj" ease, unless the property con- verted was in the actual or implied rightful possession of the plaintiff. In this case the plaintiff had neither the one nor the other pending the demise, and when that is determined perhaps he may have his goods restored to him again in the same state in which they now are, when it will appear that he has not sustained that damage which he now seeks to recover in this action. Lawrence, J. The observation which my brother Grose has made upon the form of the action of trover is very material ; the plaintiff therein states that he was possessed of the goods mentioned, and being so possessed he casually lost them, and that they came to the hands and possession of the defendant by finding. And the principal difficult}' in most of the cases reported upon this head has been, whether the plain- tiff had such a possession whereon he could declare in this action ; as in Latch, 214, where the plaintiff, as executor, declared upon the pos- session of his testator, and the court held that to be sufficient, because the property was vested in the executor ; and no other person having a right to the possession, the property drew after it the possession in law. In Berry v. Heard, Palm. 327, and Cro. Car. 242, it was for a long time in great doubt, whether the landlord had such a possession of tim- ber cut down pending a lease on which he coirid maintain trover ; but it was finally determined that he had, because the interest of the lessee in it remained no longer than while it was growing on the premises, and determined instantly when it was cut down. Now here if the tak- ing of the goods by the sheriff determined the interest of the tenant in them, and revested it in the landlord, I admit that the latter might maintain trover for them upon the authority of the other case ; but it is clearly otherwise ; for here the tenanf s property and interest did not determine by the sheriff's trespass, and the tenant might maintain tres- pass against the wrongdoer, and recover damages. He is bound to restore the goods to the landlord at the end of his term, and could not justify his not doing so because a stranger had committed a trespass upon him in taking them away. Postea to the defendant. LOTAN V. CEOSS. 245 LOTAN V. CROSS. Nisi Prius. 1810. [Reported 2 Camp. 464.] Trespass for running against the plaintiff's chaise. It appeared that the plaintiff, a stable-keeper, was owner of the chaise ; but that when the injury was done, it was in the possession of one Brown, a friend of his, whom he had permitted to use it. The objection being taken that trespass could not be maintained by the plaintiff under these circumstances, Lord Ellenborough said : The property is proved to be in the plaintiff, mnA prima facie the thing is to be considered in his legal pos- session, whoever maj' be the actual occupier. Showing a letting for a certain time to Brown, and the possession would be in him; but a mere gratuitous permission to a third person to use a chattel does not, in con- templation of law, take it out of the possession of the owner, and he maj- maintain trespass for any injury done to it while it is so used. Vide Smith v. Milles, 1 T. R. 480; Ward v. Macauley, 4 T. R. 489 ; Gordon v. Sarper, 7 T. R. 9. The witnesses stated that the defendant seemed to have no intention of running his carriage against the plaintiff's chaise ; and that the accident appeared to arise entirely from the negligent manner in which the defendant was driving. Park thereupon objected that the action should have been case and not trespass. Lord Ellenborough. The injury to the plaintiff being Immediate from the act done by the defendant, it was settled in Leame v. Bray, 3 East, 393, that trespass is the proper remedy, and that the defend- ant's intentions were immaterial. Verdict for the plaintiff . Park, in the ensuing term moved for a new trial on the ground that the action was misconceived; and stated that Leame v. Bray had been overruled by the court of C. P. in Huggett v. Montgomery, 2 N. Rep. 446. Curia. If we are desired to review the case of Leame v. Bray, the matter should be brought before us in a different shape than a motion for a new trial. We do not entertain so slight an opinion of our own judgment as to allow it to be thus canvassed. We will wait for some case where the question is raised upon the record, and may be carried farther. Rule refused. 246 HALL V. PICKARD, HALL V. PICKARD. King's Bench. 1812. [Reported 3 Campbell, 187.] This was an action on the case ; and the declaration stated that be- fore and at the time of the grievance complained of, the plaintiff was owner and proprietor of two horses, which were hired for a certain term to one W. C. ; that at the time of the grievance they were in the possession of the said W. C, and drawing his carriage along the public highwaj' ; and that while they were in such possession the defendant drove a cart against them, whereby one of them was killed. It appeared, that when the misfortune happened, the defendant was himself driving the cart with great impetuosity and violence. J'ark thereupon objected, that the action ought to have been tres- pass, and not case, relying upon Leame v. Bray., 3 East, 393, and Lotan V. Cross, 2 Campb. 464. Lord Ellenborough. This is in the nature of an injury to the plain- tiff's reversion. He was not in possession of the horses, and according to the authority of Gordon v. Harper, 7 T. R. 9, he neither could have maintained trespass nor trover for them. This is not like a gratuitous permission to use a chattel as in Lotan v. Cross, where the possession constructively remained in the owner. The horses were let to hire for a certain term to Dr. Carey, who had a right to retain them till that was expired, and who was driving them by his own servants when the mis- chief was done. Case therefore was here the proper and only remedy. It may likewise be worthy of consideration, whether in those instances where trespass maybe maintained, the party may not waive the trespass and proceed for the tort. The plaintiff had a verdict, Garrow and Abbott for the plaintiff. Park and Espinasse for the defendant.* AMES V. PALMER. Supreme Judicial Court of Maine. 1856. \Repmted 42 Maine, 197.] Exceptions from l^si Prius, Mat, J., presiding. This was an action of trover for a cask and twenty gallons of rum, taken from on board a vessel. Plea, general issue and a justification. The defendants, to justify the taking, offered a complaint made by 1 See White v. Griffin, 4 Jones (N. C), 139; Enos v. Co/e, 53 Wis. 235.— Ed. AMES V. PALMER. 247 said Palmer, defendant, and others, and a warrant and judgment of Woodbury Davis, a justice of the peace, which were objected to. Defendants contended that plaintiff was bound to show that the freight on the property from Boston, due to the owners of schooner Comet, which brought it, had been paid, and the lien on it discharged. Plaintiff asked the court to instruct the jurj- that " where goods are wrongfully taken from a bailee, that it is not necessary, in order for the owner to maintain trover for their value against the wrongdoer, that said owner should tender or paj' to the bailee any freight for which said bailee might have a lien on the goods ; nor could such wrongdoer set up any such lien except under the express authority of such bailee. " 2d. That no proof of ownership being made, the burden of proof would be on him, who asserted the existence of any unsatisfied lien, to prove it affirmatively'." The court instructed the jury that it was incumbent upon the plain- tiff to satisfy them by proof that the plaintiff had both the property-, and the right of immediate possession ; and that, if they were satisfied from the evidence in the case, that the carrier had a lien for the freight, which had not been paid or waived, then the action could not be maintained. The jur^- found for the defendants; and, being inquired of, stated, that they found for defendants on ground that the freight had not been paid, and the claim of the carrier had not been waived. To the foregoing rulings the plaintiff excepted. White <& Palmer, for plaintiff. 1. It is not disputed that, in order to maintain the action of trover, the general rule is, that the plaintiff must have the right of immediate possession at the time of the conversion. But it does not follow that everj' wrongdoer maj' set up in excuse for his wrong, an^- personal right or privilege, or lien, which a carrier or bailee might have a right to enforce against the general owner, and to avail himself thereof, to de- feat the action, without pretence of authoritj' from such carrier or bailee. A lien in favor of a carrier or bailee, for freight or advancement of expenses, is a personal right or privilege in his behalf, founded in the policy of trade, and is so considered and treated by all the foreign and American writers. Abbott on Shipping, 6 Amer. Ed. c. 2, part 4th, page 363, and notes ; Angell on Carriers, c. 9, § 359. The term signifies a claim annexed or attaching to chattels, without satisf3-ing which, such property cannot be demanded even by its owner. 2. Tlie possession of the person asserting such lien must be a law- ful one. One may not seize the goods even of his debtor, and claim to retain them by virtue of his debt. 2 East, 235 ; 2 Moor, 730 ; 8 Price, 567. 3. This lien, or privilege, or personal right, may be waived or lost in various ways ; as by permitting the goods to go out of his possession either actually or by construction. If defendants had paid the freight, having the goods wrongfully in possession, they could not, by reason of such payment, have detained 248 AMES V. PALMEE. them against the rightful owner ; and a tender of freight and charges would not have been necessary previous to bringing an action for their value against the wrongdoer. Lempiere v. Parley, 2 T. E. 485. 4. Actual possession is not necessary to maintain trover. Conver- sion of the property being the gist of the action. Hunt v. Houghton, 13 Pick. 216; Foster y. Gorton, 5 Pick. 185. When a person has delivered goods to a carrier, and the carrier has wrongfullj' parted with the possession of them to a stranger, the owner ma}' maintain trover for the conversion against the stranger ; for the owner has still the possession in law against the wrongdoer, and the carrier is considered merely as his servant. Duel v. Moxon, 1 Taunton, 391; Gordon v. Harper, 7 T. R. 9; 2 Saunders, 47, and note 2; Hloxam v. Saunders, 4 Barn. & Ores. 941. " When goods by the tort of a third person are taken from a bailee or commission merchant, the owner has a right to immediate possession of them. And a lien for the merchant's expenses cannot be set up except by himself or by his express authority." Per Judge Woodbury : ' ' Because such lien is a mere personal right and constitutes no bar to the possession of the property, unless set up by the authority of the party holding such lien." Jones v. Sinclair, 2 N. H. 319 ; cites 7 East, 7; 5 Dur. & East, 605. This case is directly in point. 5. The taking being unlawful, and against the express forbidding of the owner, no demand is necessary. Abbott, for defendants. May, J. In this case the jury were instructed that it was incumbent on the plaintiff to satisfy them, by proof, that he had a right of prop- erty in the goods sued for, and the right of immediate possession ; and that if thej' were satisfied from the evidence in the case, that the carrier had a lien for the freight, which had not been paid or waived, then the action could not be maintained. Upon the rendition of the verdict, the jury being inquired of by the court, stated that thej' found for the de- fendants, upon the ground that the freight had not been paid and the claim of the carrier had not been waived. That a common carrier has a lien upon the goods transported by him, and a right to retain the possession, as against the general owner, until his reasonable charges are paid ; and that the plaintiff, in an action of trover, cannot recover without proof of property in himself, and the right of immediate possession, is not questioned by the learned counsel in defence. Such is the law. It is, however, contended that the right to retain possession of the goods transported, which, by the common law, attaches to a common carrier, to enforce the payment of his charges, is of such a nature that it does not deprive the general owner of the right to immediate pos- session, as against a wrongdoer ; and constitutes no bar to the posses- sion of the property, unless set up by the authority of the party holding such lien. Upon examination of the authorities we are of opinion that these positions are well maintained. "WILSON V. MARTIN. 249 It has been repeatedly decided, both in England and in this country, that the lien of a factor is a personal privilege which is not transferable, and that no question upon it can arise except between the principal and factor. Baithigny S als. v. Duval & al., b T). & E. 604; Mc- Comhie v. Davies, 7 East, 5 ; Jones v. Sinclair, 2 N. H. 319 ; Holly v. Suggeford, 8 Pick. 73. In this State the same principle has been adopted in relation to statute lien. Pearsons v. Tinker, 36 Maine, 384. In the case of Solly v. Huggeford, just cited, it was argued in de- fence, that the lien of the factor so destroyed the right of possession in the general owner, that he could not maintain an action of trespass against an oflScer who had attached the goods as the property of the factor, but the court decided that such a position was untenable ; and Parker, C. J., says, that "the lien of a factor does not dispossess the owner until the right is exerted by the factor. It is a privilege which he ma}- avail himself of, or not, as he pleases. It continues only while the factor himself has the possession; and, therefore, if he pledges the goods for his own debt, or suffers them to be attached, or otherwise parts with them voluntarily, the lien is lost, and the owner may trace and recover them, or he may sue in trespass if they are forcibly taken ; for his constructive possession continued notwithstand- ing the lien." No reason is apparent why the same consequences should not attach to the lien of a common carrier as to that of a factor. In both cases the nature of the lien is the same. Both are common law liens ; and such a lien has very properly been defined to be the right of detaining the property, on which it operates, until the claims which are the basis of the lien are satisfied. Hammond v. Barclay, 2 East, 235 ; Oakes V. Moore & al, 24 Maine, 214. The object of these liens being the same, their effect must be the same. Ubi eadem ratio ibi idem, jus. The lien, therefore, of a common carrier, does not deprive the owner of the goods of his right to immediate possession, as against a tort- feasor. The judge presiding at the trial, therefore, erred in instructing the jury, that if they were satisfied that the carrier had a lien for the freight, which had not been paid or waived, the plaintiff could not recover. Exceptions sustained and new trial granted.^ WILSON V. MARTIN. Stjpeeme Judicial Court of New Hampshire. 1860. [Reported^ N.H.i&.'\ Trespass, for taking and carrying away two harnesses. Plea, the general issue. It appeared that the plaintiflT, George L. "Wilson, was 1 Holly T. Huggeford, 8 Pick. 73 ; Neff v. Thompson, 8 Barb. 213 ; Stowell T, Otit, 71 N. y. 36, accord. — 'Ed. 250 -WILSON V. MAETIN. the owner of the harnesses, and that, for the purpose of getting them cleaned and oiled, he carried them to the shop of one Page, who was a saddler and harness-maker bj' trade, and emploj-ed himself, in connec- tion with his business as a saddler and harness-maker, and as a part of the same, in repairing, cleaning, and oiling harnesses. Page performed labor in cleaning and oiling tliese harnesses, and for that service was entitled to receive of the plaintiff the sum of two dollars. While the harnesses were thus in the possession of Page, and after he had per- formed the service aforesaid upon them, they were attached by the defendant, Asa Martin, as deputy-sheriff, upon a writ against one Mor- rison, as the propertj'of Morrison; whereupon Page asserted his lien upon them for his labor done on the harnesses, as aforesaid, and re- fused to allow them to be taken from his possession bj- the defendant or anybody else until he was paid for such labor. The harnesses were moved from one room in Page's shop to another, and it was arranged between Page and tlie defendant that the harnesses sliould remain in Page's possession until his claim for labor was paid ; the defendant agreeing that if it became necessarj-, or if he should desire to take tliem away, that he would first pay to Page the amount of Page's claim. While the harnesses remained in this situation, and within some two daj-s after their attachment by the defendant as aforesaid, this suit was brought against the defendant for said harnesses, but not until after the plaintiff had demanded them of the defendant and he had refused to give them up. Page's claim for services has never been paid, and the harnesses remain, and have ever remained in his posses- sion ; and his lien on the harnesses for such services has in no way been released or discharged. The court ruled upon the foregoing facts the plaintiff could not main- tain trespass, and a verdict was thereupon taken for the defendant, and judgment is to be rendered thereon, or the same set aside and a new trial granted, as shall be ordered at the law term. C. JR. Morrison, and Chapman, for the plaintiff, referred to Raitt V. Mitchell, 4 Camp. 146 ; Mont, on Lien, 44, 141 ; 2 Saund. PI. & Ev. 640 ; Solly v. Huggeford, 8 Pick. 73 ; Daubigny v. Duval, 5 D. & E. 608 ; BrowneU v. Manchester, 1 Pick. 233 ; Stevens v. Sriggs, 5 Pick. 177; Walcot v. Pomroy, 2 Pick. 122; Stor. on Ag. 484; Jones v. Sinclair, 2 N. H. 319 ; 8 Johns. 432 ; 7 D. & E. 12; 11 Johns. 285 ; 8 Barb. 213. Woods <& Binghams (with whom were Felton and J. S. Bryant), for the defendant. Trespass could not be maintained under the circumstances found in the case, because the plaintiff had neither possession or the right of possession. Page had expended labor and material in cleaning and oiling the harnesses, asserted his lien, and refused to let them go from his possession until he was paid. This he had the legal right to do. His lien existed at common law. 2 Kent Com. (1st ed.) 496 ; Ch. on Con. 545 ; Townsend v. JTeweU, 14 Pick. 332 ; More v. Hitch- "WILSON V. MAETIN. 251 cock, 4 Wend. 292 ; Scarfe v. Morgan, 4 M. & W. 270 ; Bevan v. Waters, 14 E. C. L. 424, 3 C. & P. 520 ; Grinnell v. Cook, 3 Hill, 485 ; Pinney v. Wells, 10 Conn. 105, 115 ; Burdict v. Murray, 3 Vt. 302 ; Mount v. Williams, 11 Wend. 77 ; Stoddard v. Huntley, 8 N. H. 441 ; Shapley v. Bellows, 4 N. H. 353 ; Partridge v. Dartmouth Col- lege, 5 N. H. 286; Bradley v. Spafford, 23 N. H. 444- Cowing v. Snow, 11 Mass. 415; 9 N. H. 67. In Cowing v. Snoio, trespass by the partj' holding the lien was sustained against the general owner. The plaintiff had not at the time of the alleged trespass either the actual or constructive possession of the propertj'. The possession was rightfully in another, who had a special property therein, and before he could take possession he must buj- and pay for that special propert}', or in some way discharge it. Van Brunt v. Schenck, 11 Johns. 377; Putnam v. Wigley, 8 Johns. 337; Ward v. Macaulay, 4 D. & E. 489; Gordon v. Harper, 7 D. & E. 9; ClarJcv. Carleton, 1 N. H. 110; Poole \. Symonds, 1 N. II. 289; Heath v. West, 28 N. H. 101; Fairbanks v. Phelps, 22 Pick. 535 ; I>e Wolf v. Dearborn, 4 Pick. 466; Denniex. Harris, 9 Pick. 364; Bourne v. Merritt, 22 Vt. 429 ; Soper v. Sumner, 5 Vt. 274. Fowler, J. The right of lien at common law was original!}- confined to cases where persons, from the nature of their occupation, were under obligation, according to their means, to receive and be at trouble and expense about the personal propertj- of others; and was limited to certain trades and occupations necessary for the accommodation of the public, such as common carriers, innkeepers, farriers, and the like. But in modern times the right has been extended so far that it may now lie laid down as a general rule, to which there are few exceptions, that everj' bailee for hire, who by his labor and skill has imparted an addi- tional value to the goods of another, has a lien upon the property for his reasonable charges in relation to it, and a right to retain it in his possession until those charges are paid. This includes all such me- chanics, tradesmen, and laborers, as receive property* for the purpose of repairing, cleansing, or otherwise improving its condition. Cowper V. Andrews, Hobart, 41 ; TTie Case of an Hostler, Yelverton, 67 ; and see the learned and valuable note of Mr. Justice Metcalf to this case, in his edition of Yelverton, 67 (a), and the authorities therein collected and commented upon; Green v. Farmer, 4 Burr. 2214 ; Close v. Water- house, 6 East, 523, n. 2; 2 Kent's Com. (5th ed.) 635; Grinnell v. Cook, 3 Hill, 491, and authorities cited by defendant's counsel passim; Oaks V. Moore, 24 Me. (11 Shep.) 214. In the case at bar, Page had a lien upon the harnesses in contro- versy, for the labor and expense he had bestowed in cleansing and oil- ing them, at his election, and had a right to retain the possession and control of them until his charge in that behalf should be paid. He claimed his lien and asserted his right, and still so claims and asserts his interest in the goods. He has never parted with the possession of the harnesses, and still rightfully holds them against the plaintiff and 252 WILSON V. MAETIN. all the world. By his assertion of his lien, his right to retain the pos- session of the harnesses, for the pajmient of his charges, became vested, and must so continue as long as he shall retain that possession. He manifestly did not waive or intend to waive his lien, in consenting to hold the harnesses for the defendant. He only received and agreed to hold them subject to his own lien ; and the defendant consented that Page should so receive and hold them, and that he would not as an officer interfere with them until that lien should be discharged ; so that the lien was not affected or impaired by the arrangement. Townsend V. Newell, 14 Pick. 332. The gist of trespass to personal property is the injury done to the plaintiff's possession. The substance of tlie declaration is, that the defendant has forcibly and wrongfully injured property in the posses- sion of the plaintiff. To maintain the action, it is absolutely essential that the plaintiff should have had, at the time of the alleged injury, either actual or constructive possession of the property injured. His possession is constructive when the property is either in the actual cus- tody and occupation of no one, but rightfully belongs to himself; or when it is in the care and custody of his servant, agent, or overseer, or in the hands of a bailee for custody, carriage, or other care or service, as a depositarj', mandatary, carrier, borrower, or the like, where the bailee or actual possessor has no vested interest or right to the bene- ficial use or enjoyment of the property, or to retain it in his possession, but the owner may take it into his own hands at pleasure. But, where the general owner has parted with the actual possession, in favor of one who enjoys the exclusive right of present possession and enjoj'- ment, retaining to himself only a reversionarj^ interest, the possession is that of the lessee or bailee, who alone can maintain an action of tres- pass for a forcible injury to the property. 1 Ch. PI. (7th ed.) 188, 195 ; 2 Gr. Ev., §§ 613, 614, 616, and authorities cited. Qlarh v. Carlton, 1 N. H. 110; Pooler. Symonds, 1 N. H. 289; Heathy. West, 28 N. H. 101 ; Moidton v. Robinson, 27 N. H. 550; Marshall v. Davis, 1 Wend. 109 ; Nash v. Mosher, 19 "Wend. 431 ; Newhall v. Dunlap, 2 Shepl. 180 ; Gay v. Smith, 38 N. H. 171. In this case, the plaintiff had parted with his possession of the har- nesses, by delivering them to Page, to be cleaned and oiled. Page had cleaned and oiled them, and he thereby acquired, and had asserted the right, to retain them in his possession, even as against the plaintiff, until his charges for the labor and expense bestowed upon them should be satisfied. The plaintiff, then, had neither possession or the right of possession in the harnesses, at the time of the alleged injury to them, and could not maintain trespass. Cowing v. Snow, 11 Mass. 415, and authorities cited above. It has been urged in argument that, although not liable for the origi- nal attachment, the defendant became liable by the subsequent demand of the plaintiff for the harnesses, and his refusal to deliver them up. But, if we are correct in the view, that the lien of Page having been WILSON V. MAKTIN. 253 asserted, gave him a vested right to retain the possession of the har- nesses until that lien was satisfied or the possession parted with, and the lien bad not been satisfied or the possession parted with bj' Page, as the case distinctly' finds, then the plaintiff, at the time of the demand, had no right to the possession of the harnesses, and of course could not be injured by the refusal of the defendant to yield to him what he was not entitled to have. The plaintifi", having, at the time of the alleged injury to the har- nesses by the defendant, neither the actual or constructive possession of them, but the same being then and still in the hands of his bailee, who had, and still has a vested right to retain them until the satisfac- tion of his lien thereon, there must be judgment on the verdict properly taken in the court below for the defendant. Judgment upon the verdict.^ 1 See Smith v. Sheriff of Middlesex, 15 East, 607. " The bailor also obtained a right of action against the wrong-doer at a pretty early date. It is laid down by counsel in 48 Edward III., in an action of trespass by an agister of cattle, that, ' in this case, lie who has the property may have a writ of tres- pass, and he who has the custody another writ of trespass. Persay ; Sir, it is true. But he who recovers first shall oust the other of the action, and so it shall be in many cases, as if tenant by elegit is ousted, each shall have the assize, and, if the one recover first, the writ of the other is abated, and so here.' " It would seem from other books that this was spoken of bailments generally, and was not limited to those which are terminable at the pleasure of the bailor. Thus in 22 Edward IV., counsel say, ' If I bail to you my goods, and another takes them out of your possession, I shall have good action of trespass quare vi et armis.' And this seems to have been RoUe's understanding in the passage usually relied on by modern courts. " It was to be expected that some action should be given to the bailor as soon as the law had got machinery which could be worked without help from the fresh pur- suit and armed hands of the possessor and his friends. To allow the bailor to sue, and to give him trespass, were pretty nearly the same thing before the action on the case was heard of. Many early writs will be found which show that trespass had not always the clear outline which it developed later. The point which seems to be in- sisted on in the Year Books is as Brooke suras it up in the margin of his Abridgment, that two shall have an action for a single act, — not that both shall have trespass rather than case. It should be added that the Year Books quoted do not go beyond the case of a wrongful taking out of the custody of the bailee, the old case of the folk-laws. Even thus limited, the right to maintain trespass is now denied where the bailee has the exclusive right to the goods by lease or lien ; although the doctrine has been repeated with reference to bailments terminable at the pleasure of the bailor. But the modified rule does not concern the present discussion, any more than the earlier form, because it still leaves open the possessory remedies to all bailees with- out exception. This appears from the relation of the modified rule to the ancient law ; from the fact that Baron Parke, in the just cited case of Manders v. Williams, hints that he would have been prepared to apply the old rule to its full extent but for Gordon v. Harper, and still more obviously from the fact, that the bailee's right to trespass and trover is asserted in the same breath with that of the bailor, as well as proved by express decisions to be cited. " It is true that in Lotan v. Cross, Lord Ellenborough ruled at Nisi Prius that a lender could maintain trespass for damage done to a chattel in the liands of a bor- rower, and that the case is often cited as authority without remark. Indeed, it is sometimes laid down generally, in reputable text-books, that a gratuitous bailment does not change the possession, but leaves it in the bailor ; that a gratuitous bailee 254 ANONYMOUS. G. Actions of Bailee against Third Person. ANONYMOUS. King's Bench. 1374. IRepm-ted Year Booh, 48 Edw. III. 20, pi. 8.] A MAN brought a writ of trespass in the King's Bench for certain oxen and cows taken with force and arms in a certain vill. Hasty. Where j^ou bring this writ of trespass for j-our beasts, vt supra, we saj^ that the said beasts, at tlie time of the taking, belonged to Walter Wich', of W., and that Walter W., whose the beasts were, sued a replevin in the County ; and thereupon the delivery was made, and then [the suit] was removed into the Common Bench, and we say against you, that we took the said beasts for rent arrear, issuing from the same place as to which he complains (and he showed for what term), and we demand judgment if you can take such beasts as belong to others than yourselves. Ham. To this we saj' that Walter W. bailed to us the said beasts to agist on our land, so they were in our keeping, and an action for is quasi a servant of the bailor, and the possession of one is the possession of the other ; and that it is for this reason that, although the bailee may sue on his posses- sion, the bailor has the same actions. A part of this confusion has already been ex- plained, and the rest will be when I come to speak of servants, between whom and all bailees there is a broad and well-known distinction. But on whatever ground Lolan V. Cross may stand, if on any, it cannot for a moment be admitted that borrowers in general have not trespass and trover. A gratuitous deposit for the sole benefit of the depositor is a much stronger case for the denial of these remedies to the depositary ; yet we have a decision by the full court, in wliich Lord EUenborough also took part, that a depositary has case, the reasoning implying that a fortiori a borrower would have trespass. And this has always been the law. It has been seen that a similar doctrine necessarily resulted from the nature of the early German procedure ; and the cases cited in the note show that, in this as in other respects, the English followed tlie traditions of their race. " The meaning of the rule that all bailees have the possessory remedies is, that in the theory of the common law every bailee has a true possession, and that a bailee recovers on tlie strength of his possession, just as a finder does, and as even a wrong- ful possessor may have full damages or a return of the specific thing from a stranger to the title. On the other hand, so far as the possessory actions are still allowed to bailors, it is not on the ground that they also have possession, but is probably by «- survival, which has been explained, and wliich in the modem form of the rule is an anomaly. The reason usually given is, that a right of immediate possession is suf- ficient, — a reason which excludes the notion that the bailor is actually possessed." Holmes, Com. Law, 171-175. See 2 P. & M. Hist. (2d ed.) 172. Contributory negligence by the bailee has been held a bar to an action by the bailor against a third party who injured the chattel by his negligence. Arctic Fire Ins. Co. V. Austin, 69 N. Y. 470 ; Illinois Central R. Co. v. Sims, 27 So. R. 527 (Miss.). Contra, New York, L. E. ^ W. R. R. Co. v. New Jersey Elec. Ry. Co., 60 N. J. L. 338. — Ed. ANONYMOUS. 255 them givea to us. Wherefore we demand judgment whether our writ is not good. Hasty. And since j-ou have confessed property of the beasts in Walter W., and also that the said beasts were in j'our custody, you may have an action of trespass by another writ, making mention of the fact that they were in your custodj', and not by a general writ wherefore, &c. Cavendish [C. J.] There is no other writ in the Chancery in the case. Sed vide, that for executors the writ will be in custodia sua existentia. And I say in this case, he who has the propertj' can have a writ of trespass, and he who has the custodj', another writ of trespass. Percy. Sir, it is true, but he who shall recover first will oust the other of his action ; and so it will be in several cases, as if tenant by elegit is ousted, both shall have an assize, and if one recovers first, the writ of the other is abated, sic hie. And afterwards the issue was taken whether they were agisted on the plaintiff's laud or not. .Et sic ad patriam. ANONYMOUS. Common Pleas. 1409. {Beported Year Book, 11 Hen. IV. 17, pi 39.] A MAN sued a general replevin for his cattle wrongfully taken. Trein.' said that the cattle were another's, and not the plaintiffs, and he made an avowry for a return. Skrene. He whom j-ou allege to have the propertj' in the cattle lent the cattle to us to manure and improve our land by force whereof they were in our custodj', and we demand judgment, and we pray damages. Trem.' And we demand judgment, because j'ou knew the property was in another, as we have alleged, and we pray for a return. CoLEPEPER [J.] He supports his action well enough on the special matter which he has shown, why do you demur? Trem.' He ought to have alleged in his writ de averiis in custodia sua existentibus. Skrene. It is at our election to do either the one or the other. Thiening [C. J.] Plead no more about this matter, for against you he has propertj', &c.^ 1 " Hankpord [J.] If a stranger who has no right take beasts in ray custody, I shall have a writ of trespass against him, and shall recover the value of the beasts, be- cause I am charged with the beasts against him who has bailed them to me, and who has the property; but here the case is wholly otherwise, quod Hill et Colepepek [JJ.J concesserunt. Et nota that Colepeper [J.] said in this case that a man shall have a writ de averiis in custodia sua existentibus. Sed vide that those of Chancery will not grant such a writ in custodia sua." Year Book, 11 Hen. IV. 24, pi. 46 (1409). " On the evidence, I admit it is questionable whether the plaintiff had a sufficient right of property. But the error, if any, lay with the jury. They were instructed that a mere servant, who, as such, has only the charge or custody of goods, has not a 256 BOOTH V. "WILSON. ROOTH V. WILSON. King's Bench. 1817. [Reported 1 B. ^ Aid. 59.] Case against the defendant for not repairing tlie fences of a close adjoining ttiat of tiie plaintiff, whereby a certain horse of plaintiff, feed- ing in the plaintiffs close, through the defects and insufficiencies of the fences, fell into the defendant's close and was killed. Plea, not guilty. At the trial before Richards, Baron, at the last Spring Assizes for the county of Nottingham, it appeared that the horse was the property of the plaintiff's brother, who sent it to him on the night before the acci- dent ; that the plaintiff put it into his stable for a short time, and then turned it, after dark, into his close, where his own cattle usually grazed, and that on the following morning the horse was found dead in the close of the defendant, having fallen from the one to the other. The liability to repair was admitted. Defence, that the plaintiff had not such a property in the horse as to entitle him to maintain this action. The learned Judge, however, suffered the cause to proceed, and the jury found a verdict for the plaintiff. In Easter Term last a rule was obtained bj' Header for setting aside this verdict and having a new trial, against which cause was now shown by Copley, Serjt. Reader, contra. Lord Ellenborough, C. J. The plaintiff certainly was a gratuitous bailee, but as such he owes it to the owner of the horse not to put it into a dangerous pasture ; and if he did not exercise a proper degree of care he would be liable for any damage which the horse might sus- tain. Perhaps the horse might have been safe during the daylight, but here he turns it into a pasture to which it was unused after dark. That is a degree of negligence sufficient to render him liable : such liability is sufficient to enable the plaintiff to maintain this action ; he has an interest in the integrity and safety of the animal, and may sue for a damage done to that interest. Batlet, J. I am entirely of the same opinion: the plaintiff by receiving the horse becomes accountable. Case is a possessory action ; the declaration merely states that it was the horse of the plaintiff ; if this had been an indictment, might it not have been described as the special property in them, but that the property remains in the master, and the action for their recoyery must be brought in his name ; and that unless the goods in question had been delivered by Weir to the plaintiff as a bailee, and under a particular respon- sibility, this action could not be sustained. This was a direction as favorable to the defendant as the law would warrant. The judge left the application of the rule to the jury, whose business it was to apply it to the facts." Per Gibson, J., in Harris v. Smith, 3 S. & R. 20, 23. See Tuthill v. Wkeeler, 6 Barb. 362. BUETON V. HUGHES. 257 horse of the plaintiff, as in the common case of goods stolen from a washerwoman ? Abbott, J. I think that the same possession which would enable the plaintiff to maintain trespass, would enable him to maintain this action. HoLROTD, J. The plaintiff was entitled to the benefit of his field not onlj- for the use of his own cattle, but also for putting in the cattle of others ; and b}' the negligence of the defendant in rendering the field unsafe, he is deprived in some degree of the means of exercising his right of using that field for either of those purposes. "Whether, there- fore, the damage accrues to .his own cattle, or the cattle of others, he still may maintain this action. Rule discharged. BURTON V. HUGHES. Common Pleas. 1824. {Reported 2 Bing. 173.] Trover for certain articles of furniture seized by the defendants under a commission of bankrupt against Robert Cross. At the trial before Bayley, J., York Lent Assizes, 1824, Kitchen, a dealer in fur- niture, proved that he was owner of the furniture in question, which he had lent to the plaintiff under the terms of a written agreement, and that the plaintiff had placed it in a house occupied by the bankrupt's wife. The agreement between Kitchen and the plaintiff was called for, but could not be produced for want of a stamp. On the part of the defendants it was ttien contended that the plain- tiff must be nonsuited ; that at the time of the taking he had neither the property nor the possession of these goods, but only an alleged interest under an agreement ; of which interest as the agreement could not be produced, there was no evidence whatever ; that in order to support trover, the plaintiff must prove property', special interest, or actual possession, even though that possession should be tortious as against a third person. A verdict having been found for the plaintiff, Cross, Serjt., in the last term, upon the grounds urged at the trial, obtained a rule nisi to set aside the verdict and enter a nonsuit. Bosanquet, Seijt., now showed cause. Cross, for the defendant. Best, C. J. If this had been a case between Kitchen and the plain- tiff the agreement ought to have been produced, because tliat alone could decide the respective rights of those two parties ; but it appears that Kitchen was to supply the plaintiff with furniture, and the ques- tion is, whether, after he had obtained it, he had a suflB.cient interest to 17 258 BtTKTON V. HUGHES. maintain this action. The case wliich has been referred to \_Sutton v. Buck, 2 Taunt. 302] confirms what I had esteemed to be the law upon the subject, namely, that a simple bailee has a suflScient interest to use in trover. In that case a partj', whose title was not completed by registry or any regular eouvej-ance, sued in trover to recover a ship of which he had been possessed ; registry was absolutely necessary to give him a title, and j-et it was holden he might recover against a wrong- doer. Mansfield, C. J. says, " Suppose a man gives me a ship, with- out a regular compliance with the register act, and I fit it out at £500 expense, see what a doctrine it is that another man maj- take it from me and I have no remedy'. The only doubt on the case, I think, arises from the register act, lest, if we should decide that anj' property passed by the transfer, it should militate against that act, and I have never been able entirely to free my mind from that doubt ; but at present I think that on the circumstances, the plaintiff might maintain trover." Lawrence, J. says, " There is enough property in this plaintiff to enable him to maintain trover against a wrong-doer ; and although it has been urged that the contract is void, with respect to the rights of third per- sons, as well as between the parties, j'et, as far as regards the posses- sion, it is good as against all, except the vendor himself." It is impossible to distinguish that case from the present ; but it has been contended here that the defendants were not wrong-doers ; — certainly not, in taking the effects of the bankrupts, but thej- are wrong-doers in taking the effects of a third person ; they had no right to take goods belonging to the plaintiff which were clearly distinguishable from any the bankrupt ever had. Park, J. If this had been a question between Kitchen and the bankrupt, it might have borne a totallj' different complexion ; but whether Mrs. Cross was to live in the house, or Burton, was altogether immaterial as against the defendants, and the case which has been referred to is much stronger than the present. There it was holden that possession of a ship under a transfer, void for non-compliance with the register act, is a sufficient title in trover against a stranger for parts of the ship being wrecked. Admitting that the defendants were not wrong-doers, at all events they were strangers, and possession is sufBcient to enable a party to maintain trover against a stranger. What Chambre, J. says, is very material. "The plaintiff has posses- sion under the rightful owner, and that is sufficient against a person having no color." (Here the plaintiff was let into possession by Kitchen, the rightful owner.) "An agister, &c., a carrier, a factor, may bring trover ; even a general bailment will suffice without being made for any special purpose, but only for the benefit of the rightful owner." It was immaterial how the plaintiff came into possession, but as there was no dispute between him and Kitchen the verdict must stand. BcBROUGH, J. concurring, the rule was Discharged. POOLE V. SYMONDS. 259 POOLE V. SYMONDS. SuPEEiOK Court of Jodicature op New Hampshire. 1818. [Reported 1 N. E. 289.] Trover for a mare. The cause was tried here at the last Maj' Term upon the general issue, when it appeared in evidence that the mare once belonged to one Ezra Flanders ; that Ziba Huntington, a deputy sheriff, having an execution in his hands in favor of P. Noyes against Planders for about $30 debt and costs, on the 26th of June 1817, seized the mare upon the execution ; that Flanders, being desirous to procure time to raise monej- and pay the execution, and thereby pre- vent the sale of the mare, requested Huntington to delay the sale, to which Huntington, who had been directed by Noyes to grant Flanders any indulgence not inconsistent with the safety of the debt, assented ; Huntington took the mare into his possession, and delivered her for safe keeping to the plaintiff, who gave Huntington his promise in writ- ing to return her on demand. Poole kept the mare until the 8th of August 1817, when she was attached as the propertj' of Flanders by the defendant, another deputy sheriff, on mesne process in favor of A. W. Morse against Flanders, and is now held by the defendant by virtue of that attachment. It did not appear that the mare was ever in the possession of Flanders after Huntington seized her, nor that Hunting- ton had ever advertised her for sale upon the execution. The jury returned a verdict for- the plaintiff, and assessed the dam- ages at $30. William Smith, for the defendant. Gilbert and J. Bell, for the plaintiff. The opinion of the court was delivered by EiCHARDSON, C. J. On behalf of the defendant it is contended, that Poole has not a sufficient interest in the chattel in question to enable him to maintain this action, and several decisions in the Supreme Court of Massachusetts are relied upon as directly in point; and it is not to be doubted, that, if those decisions were correct, this objection must prevail. But the decisions in this State have been different. In the case of Eastman v. Eastman, in the county of Hillsborough, December Term, 1814, where the case was precisely like the present one, except that the article in question had been taken upon mesne process in Massachusetts, and the plaintiff had become answerable for it to an officer there, the cases in the ninth volume of the Massachusetts Reports were cited by counsel and considered by the court ; but the court (Smith, C. J., Livermore, and Ellis, justices) were clearly of opin- ion, that the plaintiff might maintain the action. No authority is cited by the court in Massachusetts in support of their decision ; nor is it recollected that the determination here was supported by authorities. We have therefore felt it to be our duty to reconsider the question, and 260 POOLE V. SYMONDS. endeavor by a careful examination of the adjudged cases which bear upon the point to ascertain what the real law of the case is. No man can maintain trespass, trover, or replevin for personal chat- tels without either an absolute or special property in the goods, and also possession. But this possession may be either actual or construc- tive. Thus an executor is bj' construction of law possessed of the goods of the testator, and maj' maintain trover for them, although he has never been in tlie actual possession of them. So where one had wreck by prescription or grant, and another tooli it awaj', trespass or trover lay before seizure. And if A. in London gives J. S. his goods in York, and another takes them away before J. S. obtains actual posses- sion, J. S. may maintain trespass or trover. So if the owner deliver his goods to a carrier or other bailee, although in such case another has the actual possession, still the owner has by construction of law a suf- ficient possession to maintain trover or trespass. This constructive possession is not founded on the mere right of propertj', but upon the right of possession. For if he, who has the absolute propertj', has not also the right of possession, he can have no constructive possession. Thus where the owner of goods let them for a year and they were taken away bj' a third person within the year, it has been held that he could maintain neither trespass nor trover. This constructive possession in one is by no means inconsistent with an actual possession in another. In many cases either he who has the actual, or he who has the con- structive possession, may maintain trespass, trover, or replevin ; but a judgment in favor of one will be a bar to an action in favor of the other. In some cases he who has onlj- a special property, may have a constructive possession. Thus a factor, to whom goods have been con- signed, but have never been received, has such a constructive posses- sion, that he can maintain trover. A special property in goods may in some cases be founded upon mere possession. Thus he who finds goods which have been lost has a special property in them, because possession is evidence of title. Thus too where goods were stolen from a stage coach, it was held, that they were well alleged in the indictment to be of the goods or chattels of the stage coachman, althougli he was the mere servant of the owner of the coach, and not answerable for the goods. A special property may also be founded upon a responsibility for, or an interest in, the possession of chattels. Thus he, to whom goods are delivered merely to keep and redeliver upon request, has a special prop- erty in them. 21 H. 7, 14, pi. 23, where it is said the point had often been decided. Jones on Bailment, 112. That a sheriff, who has seized goods upon mesne process, or upon execution, an agister of cattle, a carrier, factor, consignee, pawnee, trustee, &c. have a special property, admits of no doubt. 11 H. 4, 17, pi. 39 ; 48 E. 3, 20, pi. 8 ; 2 Saund. 47 ; 6 John. 195 ; 12 John. 403. But a mere servant has not a special property in goods. Thus where a servant was emploj'ed in a shop merely to sell goods, he was held POOLE V. STMONDS. 261 not to have a special property in them. Nor has a shepherd, who is employed to tend sheep, any property in the sheep. The reason is, because the law considers the goods and the sheep as much in the actual possession of the owner, as if the servant were not with them, and the servant is not responsible for them. If the goods or the sheep are taken away bj' a stranger, it is no injury to the servant, because he has no interest in the possession. But if a servant undertalics specially to be accountable for goods committed to his custodj', he at once exchanges the character of a mere servant for that of a bailee, and has a special propertj'. Thus it seems that any person, who has an absolute or a special property, in a personal chattel, and a right to reduce it to immediate possession, has in law such a possession as will enable him to maintain an action to vindicate his right of possession, and this is what the law denominates a constructive possession. And any individual, who has a particular interest in the possession of such chattel, whether such interest be founded upon the evidence of title which possession affords, as in the case of a finder of lost goods, or on a right to the use of the chattel, as in the case of a hirer, &c., or on some responsibility for it, as in the case of a sheriff, &c., has what the law denominates a special property, and may maintain an action, whenever that special property is unlawfully invaded. It now remains to compare the facts in the case before us with these principles. Huntington having seized the mare upon execution, de- livered her to Poole and took his promise in writing to redeliver her on demand. Did this contract impose any responsibility upon Poole? That it did is not to be doubted. The extent of his responsibility is immaterial. It is enough that he was responsible for the safe-keeping and redelivery of the mare. This according to the principles to be deduced from the books gave him a suflicient interest in the possession to enable him to maintain this action. But it is said that Huntington had a special property in the mare ; that two persons cannot have severally a special property in a chattel, and that therefore, Poole would not have a special property in her. It is for those who hold this doctrine to show why two may not have several!}-, a special interest in a eliattel, as well as two may have severally, one the general, and the other a special property in it at tlie same time. The reason is certainly not very obvious. It is true, that there are but two species of prop- ertj' in a eliattel, absolute and special ; but it by no means follows from this, that two cannot have severally a special property in it. There can be but one absolute owner of a chattel, but it seems to us very clear that several persons may have, several!}', a special interest in it. Thus in the present case, when Huntington had seized the mare he immediately became responsible both to the debtor and creditor, and thereby acquired a special property in her, and when he delivered her to Poole for safe-keeping he did not part with his special property ; but the moment that Poole became responsible for the safe-keeping and 262 POOLE V. SYMOKDS. redelivery of her, he also acquired a special property in her, perfectly subordinate to and not at all inconsistent with, the special property of Huntington. If then the mare was unlawfully taken bj' the defendant, it was an injury both to Huntington and to Poole, and either may main- tain an action : but a judgment in favor of one will be a good bar to an action by the other. Flanders had the general propertj', but not the right of possession ; he could therefore maintain no action. Hunting- ton's right of action was founded upon his special property and right of possession; Poole's upon his special property and actual possession. If Poole is to be considered as a mere servant, he must be held respon- sible to Huntington only as a servant. For it would be repugnant to every principle of justice to hold him responsible as a bailee while we allow him only the rights of a mere servant. But a mere servant is not responsible for goods forcibly taken from him, and if Poole is to be considered as employed in that character it would seem to be a good defence to any action Huntington may bring against him, that the mare was taken by force from him bj' the debtor or any other person without his fault. But this would undoubtedly be contrary to the understanding of the parties and might defeat the ver^' object of the contract. It is therefore the opinion of the court that the plaintiff had a sufficient in- terest in the mare to enable him to maintain this action, and thus this objection cannot prevail. But the defendant further contends, that Huntington having kept the mare more than five weeks without taking any step to complete the levj-, the attachment so far as j-espected other creditors of Flanders was dissolved, and cites the case of Caldwell v. Eaton [5 Mass. 399] in support of this objection. Our statute relative to tlie seizure and sale of goods upon executions is precisely like that of Massachusetts, and we see no reason to doubt that the construction of their court upon the statute in the case just mentioned is correct. We are not however pre- pared to say that the sheriff can in no case with the consent of the debtor keep the goods more than four daj-s before sale without dissolv- ing the attachment with respect to other creditors, provided he proceeds within the four daj's to fix and advertise tiie time and place of sale. When the sheriff seizes goods upon execution he should immediately within the four days proceed to advertise them for sale, and should sell them as soon after the expiration of the four days as can be con- veniently done. If he does not do this, other creditors have a right to consider the attachment as dissolved, and to take the goods from his possession. The verdict in this case must therefore be set aside and a new trial be granted.^ 1 Thayer v. Hutchinson, 13 Vt. 504, accord. So in a case of replevin. Miller v. Adslt, 16 Wend. 335. "There are some early cases in tliis Commonwealth in which the court, in speak- ing of keepers and receiptors of attached property, fails to notice the distinction between one who is appoin'ed a keeper, and thereby becomes a mere custodian and servant of the attaching officer, and one who takes the property into his possession and gives a receipt for it, in which he contracts to keep it safely, and to return it on HAMPTON V. BUOWN. 263 HAMPTON V. BROWN. Supreme Court op North Carolina. 1851. [Beported 13 Ired. 18.] Appeal from the Superior Court of Law of Davidson County, at the Fall Term, 1851, his Honor Judge Ellis presiding. This is an action of trover for a horse, and was tried on the general issue. The plaintiff was deputy sheriff, and had a fieri facias on a judgment in favor of one Hoffman against one Home, by virtue of which he seized the horse. He did not, however, take the horse out of the possession of Home, and the latter sold it to the defendant a few days afterwards, and, upon demand by the plaintiff, the defendant refused to give the horse up. The counsel for the defendant insisted that tlie action would not lie, because the plaintiff did not keep the possession of the horse, but left it with Home, from whom the defendant purchased ; and, also, because the defendant, if liable at all, was liable at the suit of the sheriff, and not of the plaintiff. But the Court instructed the jurj' that upon these facts the plaintiff was entitled to recover ; and after a verdict and judgment against him, the defendant appealed. Gilmer and Miller, for the plaintiff. No counsel for the defendant. RuFFiN, C. J. Although a sheriff may have trover, or trespass for goods seized in execution, which are taken by another, yet his deputy cannot. The reason why the sheriff has the action is, that the debtor is discharged and the sheriff becomes liable to the value of the goods, and therefore the law vests the property in him. Wilbraham v. Snow, 2 Saund. 47. But the law charges the deput3'' with no duty to the cred- itoi'. If he make defaults in serving the execution, he cannot be sued for it, but his principal only. On the contrary, when he takes goods on execution the sheriff becomes answerable for their value to the creditor, and hence the property vests in the sheriff and not in the deputy. It was suggested that the deputy held as the bailee of the sheriff, and thus had a special property. He, however, is not a bailee, in the sense of having a possession of his own, but he is merely the servant of his superior and holds for him. The plaintiff, therefore, has no property in the horse, and cannot have this action. Per Curiam. Judgment reversed, and venire de novo.^ demand or at a stated time, whereby he becomes personally responsible for it as a bailee. But it is now well established, both in this Commonwealth and elsewhere, that such a receiptor is a bailee who has a possession, and it follows that he may maintain trespass, trover, or replevin against a wrongdoer. The earlier cases in New York which hold otherwise are overruled in Miller v. Adsit, 16 Wend. 335, in which it is expressly decided that a receiptor of attached property may maintain replevin for it; and the same doctrine is laid down in Peters v. Stewart, 45 Conn. 103." Knowlton, J., in Robinson v. Besarick, 166 Mass. 141, 143, 144. — Ed. 1 " It has been supposed, to he sure, that a ' special property ' was necessary in order to maintain replevin or trover. But modern cases establish that possession is 264 HAMPTON V. BKOWN. sufficient, and an examination of tlie sources of our law proves that special property did not mean anything more. It has been shown that the procedure for the reooTery of chattels lost against one's will, described by Bracton, like its predecessor on the Continent, was based upon possession. Yet Bracton, in the very passage in which he expressly makes that statement, uses a phrase which, but for the explanation, would seem to import ownership, — Poterit rem suam petere. The writs of later days Used the same language, and when it was objected, as it frequently was, to a suit by a bailee for a taking of bona e.t catalta sua, that it should have been for bona in cus- todia sua existentia, it was always answered that those in the Chancery would not frame a writ in that form. " The substance of the matter was, that goods in a man's possession were his (sua), within the meaning of the writ. But it was very natural to attempt a formal recon- ciliation between that formal word and the fact by saying that, although the plain- tifi had not the general property in the chattels, yet he had a property as against strangers, or a special property. This took place, and, curiously enough, two of the earliest instances in which I have found the latter phrase used are cases of a deposi- tary, and a borrower. Brooke says that a wrongful taker ' has title against all but the true owner.' In this sense the special property was better described as a 'possessory property,' as it was, in deciding that, in an indictment for larceny, the property could be laid in the bailee who suffered the trespass. "I have explained the inversion by which a bailee's right of action against third persons was supposed to stand on his responsibility over, although in truth it was the foundation of that responsibility, and arose simply from his possession. The step was short, from saying that bailees could sue because they were answerable over, to saying that they had the property as against strangers, or a special property, because they were answerable over, and next that they could sue because they had a special property and were answerable over. And thus the notion that special property meant something more than possession, and was a requisite to maintaining an action, got into the law. "The error was made easier by a different use of the phrase in a different connec- tion. A bailee was in general answerable for goods stolen from his custody, whether he had a lien or not. But the law was otherwise as to a pledgee, if he had kept the pledge with his own goods, and the two were stolen together. This distinction was accounted for, at least in Lord Coke's time, by saying that the pledge was, in a sense, the pledgee's own, that he had a special property in it, and thus that the ordinary relation of bailment did not exist, or that the undertaking was only to keep as his own goods. The same expression was used in discussing the pledgee's right to assign the pledge. In this sense the term applied only to pledges, but its sig- nificance in a particular connection was easily carried over into the others in which it was used, with the result that the special property which was requisite to maintain the possessory actions was supposed to mean a qualified interest in the goods." Holmes, Com. Law, 242-244. " The property in the goods is that which most usually draws to it the right of possession ; and the right to maintain an action of trover is therefore often said to depend on the plaintiff's property in the goods ; the right of immediate possession is also sometimes called itself a special kind of property ; Rogers v. Kennay, 9 Q. B. 592 ; but these expressions should not mislead the student. The action of trover tries only the right to the immediate possession, which, as we shall now see, may exist apart from the properly in the goods. . . . The action of trover tries the right of pos- session, and may or may not determine the property. For strange as it may appear, there is no action in the law of England by which the property either in goods or lands is alone decided." "Wms. Pers. Prop. (12th ed.) 31, 32. See also Dicey on Parties, 346, 347, 352, 353, 358-360. CHESLEY V. ST. CLAIE. 265 H. Measure of Damages in Action hy Bailor or Bailee. CHESLEY V. ST. CLAIR. Superior Court of Judicature op New Hampshire. {Reported 1 N. H. 189.] This was an action of trover for a liorse, saddle, and bridle. The cause was tried here at the last term upon the general issue. The plain- tiff, to maintain the issue on his part, proved that one Benjamin Hodg- don had bailed the articles mentioned in the writ, to him to ride to Dover. The defendant denied that Hodgdon had any interest in the article, and introduced evidence to show that the property was his own. Upon this the plaintiff called Hodgdon as a witness to prove that he, Hodgdon, was the lawful owner of the property. The defendant ob- jected to the admission of Hodgdon as a witness on the ground that he, having bailed the property to the plaintiff, was interested in the event of the suit, but he was admitted, and the jury returned a verdict for the plaintiff. J. Mason, for the defendant. Ichabod Bartlett and James Bartlett, for the plaintiff. Richardson, C. J. The question is, whether in an action of trover, brought by the bailee of a chattel against a stranger, the bailor is a competent witness for the bailee to prove the general property in him- self? There is such a privity between the bailor and the bailee of chattels that a recovery b^' one in an action of trespass or trover against a stranger for taking the goods is, in general, a bar to an action by the other. And a recovery by the bailee in trespass or trover against a third person operates as a transfer of the property or cliattel to such third person. Solutio pretii emptionis loco habetur. It seems to fol- low that whatever may be recovered in such a suit by a bailee must be recovered to the use of the bailor, as much as if it were recovered upon a contract of sale of the chattel by the bailee with the assent of the bailor. And it has been held that a verdict in favor of the bailee may be used in evidence in an action by the bailor against the bailee. If this be law, it is clear that Hodgdon was an incompetent witness. It is verj' clear that a recovery by the bailee betters the situation of the bailor because it settles the question of property, and this has been held sufficient to exclude a witness. There may be cases, however, in which the bailor will be a com- petent witness for the bailee. Thus if the goods are wrongfullj' taken from the bailee, and he obtains possession of them again, or if the bailor releases the propertj' to the trespasser, and the bailee bring trespass to recover tiie damages he may have sustained bj^ being de- prived of the possession, as it seems he may, in such case there seems 266 BKEWSTEE V. "WARNBE. to be no reason whj' the bailor should not be a witness for the bailee, for it is clear that he can have no interest in the recoverj'. In the present case as the object of the suit is to recover the value of the propertj', and as the only question between the parties is, whether the property- belonged to Hodgdon or the defendant, we are of opinion that Hodgdon was an incompetent witness for the plaintiff and that the verdict must be set aside, and a new trial granted.^ BREWSTER v. "WARNER. Supreme Judicial Court of Massachusetts. 1883. [Reported 136 Mass. 57.] Tort. Trial in the Superior Court, without a jur}-, before Blodgett, J., who allowed a bill of exceptions, in substance as follows : The plaintiff, on September 15, 1881, hired a horse and carriage from the liverj' stable of one Foster in Boston to drive to Beacon Park and return. Just before reaching the Park gate, a servant of the defend- ants, who was driving a pair of horses hitched to a hack, carelessly, as it was alleged, drove against the carriage in which the plaintiff was driving, and injured it. This action was brought to recover the dam- ages so sustained. Foster was the owner of the carriage injured. The plaintiff told Foster to send the carriage to a repair shop and have it repaired, and he would pay the bill. The carriage was repaired, and the bill for repairs was made to the plaintiff, and presented to him for payment ; but he had not paid it at the time of trial. This was all the evidence as to the ownership, use, and repairs of the carriage. The defendants requested the judge to rule that, upon this evidence, the plaintiff could not recover, regardless of the question of negligence. But the judge ruled otherwise, and found for the plaintiff; and the defendants alleged exceptions. J. 0. Teele, for the defendants. A. 0. Brewster, for the plaintiff. 1 Measure of Damages in Action bt Bailor oe Bailee. — " He who hath a special property of the goods at a certain time shall have a general action of tres- pass against him who hath the general property, and upon the evidence damages shall be mitigated ; bat clearly, the bailee, or he who hath a special property, shall have a general action of trespass against a stranger, and shall recover all in damages, because that he is chargeable over. See 21 Hen. 7, \i b. ace." Heydon and Smith's Case, 13 Co. 67, 69; Li/le v. Barker, 5 Binn. 457; Barker v. Dement, 9 Gill, 7; Little V. Fossett, 34 Me. 546; Chamberlain v. West, 37 Minn. 54; Baggett v. McCormack, 73 Miss. 552; Gutlner v. Pacific Co., 96 Fed. R. 617 ; Mangan v. Cox, 2 N. Z. Jur. n. s. 264 ; 8. c. sub nom. Mangan v. Learg, 3 N. Z. Jur. u. s. C. A. 10, accord. And see White v. Webb, 15 Conn. 302; Alkirn y. Moore, 82 111. 240; Brewster v. Warner, 138 s. 57.— Ed. BKEWSTER V. "WARNER. 267 HoLMBS, J. The modern cases follow the anuient rule, that a bailee can recover against a stranger for taking chattels from his possession. Shaw V. Kaler, 106 Mass. 448. Siffire v. Zeach, 18 C. B. (N. S.) 479. See Year Book 48 Edw. III. 20, pi. 8; 20 H. VII. 5, pi. 15; 2 Roll. Abr. 569, Trespass, P. pi. 5; Mcolls v. Bastard, 2 Cr., M. & R. 659, 660. And as the bailee is no longer answerable to his bailor for the loss of goods without his fault, his right to recover must stand upon his possession, in these days at least, if it has not alwaj-s done so. But possession is as much protected against one form of trespass as another, and will support an action for damage to property, as well as one for wrongfully' taking or destroying it. No distinction has been recognized by the decisions. Rooth v. Wilson, 1 B. & Aid. 59 ; Croft V. Alison, 4 B. & Aid. 590. Johnson v. HolyoJce, 105 Mass. 80. The ruling requested was obviousl3' wrong, as it denied all right of action to the plaintiff, and was not confined to the quantum of damages. Even if the question before us were whether the plaintiff could re- cover full damages, his right to do so could not be denied as matter of law. A distinction might have been attempted, to be sure, under the earl}' common law. For, although the bailee's right was undoubted to recover full damages for goods wrongfully taken from him, this was always accounted for bj' his equally undoubted responsibility for their loss to his bailor, and there is no satisfactory evidence of any such strict responsibility for damage to goods which the bailee was able to return in specie. But if this reasoning would ever have been correct, which is not clear, it can no longer apply when the responsibilitj' of bailees is the same for damage to goods as for their loss, and when the groimd of their re- cover^' for either is simply their possession. Any principle that permits a bailee to recover full damages in the one case, must give him the same right in the other. But full damages have been allowed for tak- ing goods, in many modern cases, although the former responsibility over for the goods has disappeared, and has been converted by misinter- pretation into the now established responsibility for the proceeds of the action beyond the amount of the bailee's interest. Jjyle v. Barker, 5 Binn. 457. 7 Cowen, 681, n. (a). Whiter. Webb, 15 Conn. 302. TJllman v. Barnard, 7 Gray, 554. Adams v. Q Connor, 100 Mass. 515, 518. Swire v. Leach, 18 C. B. (N. S.) 492. The latter doctrine has been extended to insurance by bailees. DeForest v. Fulton Ins. Go. 1 Hall, 84, 91, 110, 116, 132. Crompton, J., in Waters v. Monarch Ins. Co. 25 L. J. (N. S.) Q. B. 102, 106. If the bailee's responsibilty over in tliis modern form is not sufficient to make it safe in all cases to recognize his right to recover full damages, even where it was formerh' undoubted, at least it applies as well to re- coveries for harm done to property as it does to those for taking. Mindge v. Coleraine, 11 Gray, 157, 162. And if full damages are ever to be allowed, as it is settled that they maj' be, Xhey should be re- covered in the present case, where the plaintiff appears to have made 268 CLARIDGE V. SOUTH STAFFORDSHIEE TEAMWAY CO. himself debtor for the necessary repairs with the bailor's assent. John- son V. HolyoTce, ubi supra. It is not necessary to consider what steps might be taken if the bailor should seek to intervene to protect his interest. Exceptions overruled. CLARIDGE V. SOUTH STAFFORDSHIRE TRAMWAY COMPANY. Queen's Bench. 1892. [Reported [1892] 1 Q. B. 422.] Appeal from the County Court of Staffordshire. The owners of a horse sent it to the plaintiff, an auctioneer, to sell by auction, and gave him leave to use it until it was sold. Whilst the horse was being driven in the plaintiff's carriage along a street, it was frightened by a steam tramcar of the defendants which was travelling at an excessive speed. The horse, in consequence, plunged and fell, and damaged both the carriage and itself. The accident was wholly due to the neghgence of the defendants. The plaintiff brought an action in the County Court to recover the amount of the depreciation of the horse as well as the damage to the carriage. The judge directed the jury that, as the plaintiff had not been guilty of any negligence, and was, consequently, under no liability to the owners of the horse, he was not entitled to recover for the injurj' to the horse, and judgment was accordingly entered for the damage to the carriage only. The plaintiff appealed. Hugh Mitchell, for the plaintiff. The plaintiff, being in possession of the horse, was entitled to recover from the defendants, who were wrongdoers, the full amount of the depreciation. A person who wrong- fully does an injury to a chattel is estopped from alleging that the party in possession of the chattel at the time of the injury done was not the true owner; for possession is a good title as against a wrongdoer : Jeffries V. Great Western Ry. Co., 5 E. & B. 802. Here the action was, no doubt, an action on the case ; but no distinction is to be drawn in this respect between such an action and an action of trespass or trover. " Case is a possessory action: " per Baylej', J., Rooth v. Wilson, 1 B. & A. at p. 62. In Croft v. Alison, 4 B. & A. 590, which was an action on the case, the hirers of a carriage for the day were held to be the owners as against the defendant, who was a wrongdoer. No doubt the bailor may sue as well as the bailee, and " whichever first obtains damages it is a full satisfaction:" per Parke, B., Nichollsv. JBastard, 2 C. M. & R. at p. 660. And it is conceded that the bailee cannot retain for his own benefit such portion of the damages recovered as is in excess of his own loss. There are several cases which establish that as regards such ex- CLABIDGB V. SOUTH STAPFOEDSHIEE TRAMWAY CO. 269 cess he becomes trustee for the bailor. In Booth v. Wilson, IB. & A. 59, Lord Ellenborough indeed rested the right of the bailee to recover the full value of a chattel upon the ground of his liabilitj' over to his bailor ; but all the other judges -went upon tlie ground of his mere possession. Disturnal, for the defendants, was not called upon. Hawkins, J. I am of opinion that this appeal must be dismissed. The appeal is with reference to the measure of the damages recoverable b3' the plaintiff for an injury to a horse and carriage caused by the negligence of the defendants. The carriage was the property of the plaintiff ; the horse was only in the possession of the plaintiff as bailee. The judge entered judgment for the plaintiff for the damage to the carriage, but held that he could not recover for the injury to the horse. The question is whether he was right in so holding. Kow, it seems perfectly clear that the plaintiff was under no liability to his bailor for the damage to the horse, for he was not an insurer and he had not been guilty of any negligence. But it has been contended that, notwithstanding that he was under no such liability, he is neverthe- less entitled to recover the amount of the depreciation because he was in possession of the horse at the time of the accident, though it is ad- mitted that having recovered such damages he would hold them as trustee for the bailor. I cannot accede to that view. It is true that if a man is in possession of a chattel, and his possession is interfered with, he may maintain an action, but only for the injury sustained by himself The right to bring an action against the wrongdoer is one thing ; the measure of the damages recoverable in such action is another. And here the plaintiff has suffered no loss at all. It was contended that though either the bailee or the bailor might sue, only one action could be brought, and that if the bailee recovered first the bailor's right of action was barred, and the remedj- of the bailor in such case was against his bailee as for money had and received to his use. I do not agree with that contention. If both the bailee and the bailor have suffered damage by the wrongful act of a third partj-, I think that each may bring a separate action for the loss sustained by himself. I cannot understand why a bailee should be allowed to recover damages be- yond the extent of his own loss simply because he happened to be in possession. Wills, J. It has been contended that because the plaintiff was bailee of a horse to which an injury was done, while in his possession, by a third person, he is entitled to recover from the wrongdoer the amount of the depreciation of the horse, notwithstanding that the injury was inflicted under circumstances which imposed no liability upon the plaintiff as towards his bailor. The mere statement of that proposition is enough to show that it cannot be true. There are many cases, no doubt, where a bailee in possession of a chattel has recovered, against a stranger wrongfully taking it out of his possession or destroying it, the full value. This might well be the case 270 THE "WINKFIELD. if the bailee was liable over to the bailor, or if no one but the bailee were in a position to sue. The cases that have been cited relate onlj' to the right of a bailee to maintain an action ; they have nothing to do with the measure of damages recoverable in such action. A physical interference with pos- session is a wrong for which undoubtedly a bailee may sue ; but it is quite another thing to say that he may recover in such action the same damages as if he were the owner. It has been argued that the bailee may recover as trustee for the bailor ; but for that proposition there is no authoritj- : it is wholly repugnant to good sense ; and there is cer- tainly no case in which a bailee has recovered damages under such cir- cumstances and been made to account for an unascertained portion of them to his bailor. It has been suggested that the bailor can have no action for damage done to his chattel whilst in the possession of the bailee by the negligence of a third person. It is said such an action must have been in old times an action on the case, and Ba^'ley, J., is cited as having said, in Booth v. Wilson, 1 B. & A. at p. 62, that case is a possessory action. Case, undoubtedlj', did lie in many instances in which tlie plaintiff was in possession of the chattel, the subject of the action; indeed, it was generally so applied where the circumstances which gave rise to the action were not appropriately to be dealt with in trespass or trover. In that sense it was a possessory action. But it certainly was not confined to instances in which the plaintiff was in possession of the chattels injured, and in 2 Chitty on Pleading, p. 580, a form will be found of a declaration in an action in case by a person who had let goods on hire to a third person for injury done to them whilst in the possession of the hirer b3- the negligence of the defendant. The decision of the County Court judge must, therefore, be affirmed. Appeal dismissed; leave to appeal refused.^ THE WINKFIELD. CoTTKT OF Appeal. 1901. [Reported [1902] P. 42.] Collins, M. R.^ Tliis is an appeal from the order of Sir Francis Jeune dismissing a motion made on behalf of the Postmaster-G-eneral in the case of Tlie Winkfield. The question arises out of a collision which occurred on April 5, 1900, between the steamship Mexican and the steamship Winkfield, 1 " The case of Claridge v. South Staffordshire Tramway Co. may possibly require at some future time further consideration." A. L. Smith, L. J., in Meux v. Great Eastern Rij. Co., [1895] 2 Q. B. 887, 891 — Ed. 2 Only the opinion is here given. THE WINKFIELD. 271 and which resulted in the loss of the former with a portion of the mails which she was carrying at the time. The owners of the Winkfield under a decree limiting liability to 32,514Z. 17s, IM. paid that amount into court, and the claim in ques- tion was one by the Postmaster-General on behalf of himself and the Postmasters-General of Cape Colony and Natal to recover out of that sum the value of letters, parcels, &c., in his custody as bailee and lost on board the Mexican. The case was dealt with by all parties in the Court below as a claim by a bailee who was under no liabilit}' to his bailor for the loss in ques- tion, as to which it was admitted that the authority of Claridge v. South Staffordshire Tramway Co., [1892] 1 Q. B. 422, was conclusive, and the President accordingly, without argument and in deference to that authority, dismissed the claim. The Postmaster-General now appeals. The question for decision, therefore, is whether Claridge's Case, [1892] 1 Q. B. 422, was well decided. I emphasize this because it disposes of a point which was faintly suggested by the respondents, and which, if good, would distinguish Claridge's Case, [1892] 1 Q. B. 422, namely, that the applicant was not himself in actual occupation of the things bailed at the time of the loss. This point was not taken below, and having regard to the course followed by all parties on the hearing of the motion, I think it is not open to the respondents to make it now, and I therefore deal with the case upon the footing upon which it was dealt with on the motion, namely, that it is covered by Claridge's Case, [1892] 1 Q. B. 422. I assume^ therefore, that the subject-matter of the bailment was in the custody of the Postmaster-General as bailee at the time of the accident. For the reasons which I am about to state I am of opinion that Claridge's Case, [1892] 1 Q. B. 422, was wrongly decided, and that the law is that in an action against a stranger for loss of goods caused by his negligence, the bailee in possession can recover the value of the goods, although he would have had a good answer to an action by the bailor for damages for the loss of the thing bailed. It seems to me that the position, that possession is good against a wrongdoer and that the latter cannot set up the Jus tertii unless he claims under it, is well established in our law, and really concludes this case against the respondents. As I shall show presently, a long series of authorities establishes this in actions of trover and trespass at the suit of a possessor. And the principle being the same, it fol- lows that he can equally recover the whole value of the goods in an action on the case for their loss through the tortious conduct of the defendant. I think it involves this also, that the wrongdoer who is not defending under the title of the bailor is quite unconcerned with what the rights are between the bailor and bailee, and must treat the pos- sessor as the owner of the goods for all purposes quite irrespective of the rights and obligations as between him and the bailor. I think this position is well established in our law, though it may be 272 THE ■WINKFIELD. that reasons for its existence have been given in some of the cases which are not quite satisfactory. I think also that the obligation of the bailee to the bailor to account for what he has received in respect of the destruction or conversion of the thing bailed has been admitted so often in decided cases that it cannot now be questioned ; and, further, 1 think it can be shown that the right of the bailee to recover cannot be rested on the ground suggested in some of the cases, namely, that he was liable over to the bailor for the loss of the goods converted or destroyed. It cannot be denied that since the case of Armory v. Delamirie, 1 Stra. 504, not to mention earlier cases from the Year Books onward, a mere finder may recover against a wrongdoer the full value of the thing converted. That decision involves the principle that as between possessor and wrongdoer the presumption of law is, in the words of Lord Campbell in Jeffries v. Greai Western By. Co., 5 E. & B. 802, at p. 806, "that the person who has possession has the property." In the same case he sa^'s, 5 E. & B. 802, at p. 805 : ' ' I am of opinion that the law is that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrongdoer, and cannot defend himself by showing that there was title in some third person, for against a wrongdoer possession is title. The law is so stated by the very learned annotator in his note to Wilbraham v. Snow, 2 Wms. Saund. 47 f." Therefore it is not open to the defendant, being a wrongdoer, to inquire into the nature or limitation of the possessor's right, and unless it is competentibr him to do so the question of his relation to, or liability towards, the true owner cannot come into the discussion at all ; and, therefore, as between those two parties full damages have to be paid without any further inquiry. The extent of the liability of the finder to the true owner not being relevant to the discussion between him and the wrongdoer, the facts which would ascertain it would not have been admissible in evidence, and therefore the right of the finder to recover full damages cannot be made to de- pend upon the extent of his liability over to the true owner. To hold otherwise would, it seems to me, be in effect to permit a wrongdoer to set up &jus tertii under which he cannot claim. But, if this lie the fact in the case of a finder, why should it not be equally the fact in the case of a bailee? Why, as against a wrongdoer, should the nature of the plaintiff's interest in the thing converted be any more relevant to the inquiry, and therefore admissible in evidence, than in the case of a finder? It seems to me that neither in one case nor the other ought it to be competent for the defendant to go into evidence on that matter. I think this view is borne out by authority ; for instance, in Surton V. Hughes, 2 Bing. 173 ; 27 R. R. 578, the plaintiff, who had borrowed furniture, and was therefore bailee, was held to be entitled to sue in trover wrongdoers who had seized it without giving in evidence the written agreement under which he held it. The point made for the de- THE WINKPIELD. 273 fendant was that " the qualified interest having been obtained under a •written agreement could not be proved except by the production of that agreement duly stamped." The argument on the other side was "that the existence of some kind of interest having been established the precise nature of it or the terms upon which it was acquired were immaterial to the support of this action." Best, C. J., in delivering judgment says : " If this had been a case between Kitchen and the plaintiff the agreement ought to have been produced, because that alone could decide the respective rights of those two parties ; but it appears that Kitchen was to supply the plaintiff with furniture, and the ques- tion is whether, after he had obtained it, he had a sufficient interest to maintain this action. The case wiiich has been referred to — Sutton\. Buck, 2 Taunt. 302 ; 11 E. R. 585 — confirms what I had esteemed to be the law upon the subject, namely, that a simple bailee has a suffi- cient interest to sue in trover." By holding, therefore, that the agree- ment defining the conditions of the plaintiffs' interest was immaterial the Court in effect decided that the right of the bailee, in possession, to sue could not depend upon the fact or extent of his liability over to the bailor, since the plaintiff was allowed to keep his verdict in trover, the agreement defining his interest and liability being excluded from the discussion. In Sutton v. Buck, 2 Taunt. 302; 11 R. R. 585, on the authority' of which this case was decided, it was held that possession under a general bailment is sufficient title for the plaintiff in trover. The plaintiff had taken possession of a stranded ship under a transfer void for non-compliance with the Register Acts, and he sued the de- fendant in trover for portions of the timber, wood, and materials of which the defendant had wrongfully taken possession. Sir James Mansfield, C. J., had non-suited the plaintiff, on the ground that the transfer was defective without registration. On motion the non-suit was set aside. Sir James Mansfield being a member of the Court, and a new trial ordered on the ground that the plaintiff had sufficient pos- session to maintain the action against the wrongdoer. It is ti'ue that Chambre, J., reserved his opinion as to the measure of damages, but on the new trial the plaintiff recovered a verdict apparently for the full value of the things converted, and on further motion for a new trial the only point argued was that the defendant was justified as lord of the manor in doing what he did — a contention which was rejected by the Court. In Swire v. Leach, 18 C. B. (N. S.) 479, a pawnbroker, whose land- lord had wrongfully taken in distress pledges in the custody of the pawnbroker, was held entitled to recover in an action against the land- lord for conversion the full value of the pledges. This case was decided by a strong Court, consisting of Erie, C. J., Williams and Keating, JJ., and has never, so far as I know, been questioned since. The duty of the bailee to account to the bailor was recognized as well established. See also Turner v. Hardcastle, 11 C. B. (N. S.) 683, a considered judgment of the Court of Common Pleas, which included Willes, J., who had not been a party to Swire v. Leach, 18 C. B. 18 274 THE WINKFIELD. (N. S.) 479, and where the bailee's right to recover full damages and his obligation to account to the bailor is again affirmed. The ground of the decision in Claridge's Case, [1892] 1 Q. B. 422, was that the plaintiff in that case, being under no liability to his bailor, could recover no damages, and though for the reasons I have already given I think this position is untenable, it is necessary to follow it out a little further. There is no doubt that the reason given in Sey- don and Smith's Case, 13 Rep. 69 — and itself drawn from the Year Books — has been repeated in many subsequent cases. The words are these: "Clearly, the bailee, or he who hath a special property', shall have a general action of trespass against a stranger, and shall recover all in damages because that he is chargeable over." It is now well established that the bailee is accountable, as stated in the passage cited and repeated in many subsequent cases. But whether the obligation to account was a condition of his right to sue, or only an incident arising upon his recovery of damages, is a very different question, though it was easy to confound one view with the other. Holmes, C. J., in his admirable lectures on the Common Law, in the chapter devoted to bailments, traces the origin of the bailee's right to sue and recover the whole value of chattels converted, and arrives at the clear conclusion that the bailee's obligation to account arose from the fact that he was originally the only person who could sue, though afterwards by an extension, not perhaps quite logical, the right to sue was conceded to the bailor also. He says, at p. 167 : " At first the bailee was answerable to the owner because he was the only person who could sue ; now it was said he could sue because he was answer- able to the owner." And again at p. 170 : "The inverted explanation of Beaumanoir will be remembered, that the bailee could sue because he was answerable over, in place of the original rule that he was an- swerable over so strictly because only he could sue." This inversion, as he points out, is traceable through the Year Books, and has survived into modern times, though, as he shows, it has not been acted upon. Pollock and Maitland's History of English Law, vol. 2, p. 170, puts the position thus : " Perhaps we come nearest to historical truth if we say that between the two old rules there was no logical prioritj*. The bailee had the action because he was liable, and was liable because he had the action." It may be that in early times the obligation of the bailee to the bailor was absolute, that is to say, he was an insurer. But long after the decision of Coggs v. Bernard, (1704) 2 Ld. Raym. 909, which classified the obligations of bailees, the bailee has, never- theless, been allowed to recover full damages against a wrongdoer, where the facts would have afforded a complete answer for him against his bailor. The cases above cited are instances of this. In each of them the bailee would have had a good answer to an action by his bailor ; for in none of them was it suggested that the act of the wrong- doer was traceable to negligence on the part of the bailee. I think, THE WINKFIELD. 275 therefore, that the statement drawn, as I have said, from the Year Books may be explained, as Hohnes, C. J., explains it, but whether that be the true view of it or not, it is clear that it has not been treated as law in our Courts. Upon tliis, before the decision in Claridge's Case, [1892] 1 Q. B. 422, there was a strong body of opinion in text- books, English and American, in favor of the bailee's unqualified right to sue the wrongdoer : see Mayne on Damages, 4th ed. p. 381, and cases there cited; Sedgwick on Damages, 7th ed. vol. 1, p. 61, n. (a) ; Story on Bailments, 9th ed. s. 352 ; Kent's Commentaries, 12th ed. vol. 2, p. 568, n. (e) ; Pollock on Torts, 6th ed. pp. 354, 355 ; Addi- son on Torts, 7th ed. p. 623 ; and, as I have already pointed out, Williams, J., the editor of Williams' Saunders, was a party to the de- cision of Swire v. Leach, 18 C. B. (N. S.) 479. [See also Mr. Justice Wright in Pollock and Wright on Possession, p. 166.] The bailee's right to recover has been affirmed in several American cases entirely without reference to the extent of the bailee's liabihty to the bailor for the tort, though his obligation to account is admitted — see them re- ferred to in the passages cited, and in particular see Ullinan v. Barnard, (1856) 78 Mass. Rep. 554 ; Parish v. Wheeler, (1860) 22 New York Rep. 494 ; White v. Webb, 15 Conn. Rep. 302. The case of Booth v. Wilson, 1 B. & A. 59, is a clear authorit3- that the right of the bailee in possession to recover against a wrongdoer is the same in an action on the case as in an action of trover, if indeed authority' were required for what seems obvious in point of principle. There the gratuitous bailee of a horse was held entitled to recover the full value of the horse in an action on the case against a defendant by whose negligence the horse fell and was killed. The case was decided by Lord Ellenborougli, C. J., Bayley, Abbott, and Holroyd, JJ. The three latter seem to me to put it wholly on the ground that the plaintiff was in possession and the defendant a wrongdoer. Abbott, J., says shortly : " I think that the same possession which would enable the plaintiff to maintain tres- pass would enable him to maintain this action " ; and Bayley, J., points out that case is a possessory action. But Lord Ellenborough undoubt- edly rests his judgment on the view that the plaintiff would himself have been responsible in damages to his bailor to a commensurate amount. This, no doubt, was his personal view, but it was not the decision of the Court, and, as I have pointed out, it has certainly not been acted upon in subsequent cases. Therefore, as I said at the out- set, and as I think I have now shown by authority', the root prin- ciple of the whole discussion is that, as against a wrongdoer, possession is title. The chattel that has been converted or damaged is deemed to be the chattel of the possessor and of no other, and therefore its loss or deterioration is his loss, and to him, if he demands it, it must be recouped. His obligation to account to the bailor is really not ad rem in the discussion. It only comes in after he has carried his legal position to its logical consequence against a wrongdoer, and serves to soothe a mind disconcerted by the notion that a person who is not him- 276 JUDICIAL PBOCESS. self the complete owner should be entitled to receive back the full value of the chattel converted or destro^-ed. There is no inconsistency between the two positions ; the one is the complement of the other. As between bailee and stranger possession gives title — that is, not a limited interest, but absolute and complete ownership, and he is en- titled to receive back a complete equivalent for the whole loss or deteri- oration of the thing itself. As between bailor and bailee the real interests of each must be inquired into, and, as the bailee has to account for the thing bailed, so he must account for that which has become its equivalent and now represents it. What he has received above his own interest he has received to the use of his bailor. The wrongdoer, having once paid full damages to the bailee, has an answer to any action by the bailor. See Com. Dig. Trespass, B. 4, citing Boll. 551, 1. 31, 569, 1. 22, Story on Bailments, 9th ed. s. 352, and the numerous authorities there cited. The liability by the bailee to account is also well established — see the passage from Lord Coke, and the cases cited in the earlier part of this judgment — and therefore it seems to me that there is no such preponderance of convenience in favor of limiting the right of the bailee as to make it desirable, much less obligatory, upon us to modify the law as it rested upon the authorities antecedent to Olaridge's Case, [1892] 1 Q. B. 422. I am aware that in two able text-books, Beven's Negligence in Law and Clerk and Lindsell on Torts, the de- cision in Claridge's Case, [1892] 1 Q. B. 422, is approved, though it is there pointed out that the authorities bearing the other way were not fully considered. The reasons, however, which they give for their opinions seem to be largely based upon the supposed inconvenience of the opposite view ; nor are the arguments by which they distinguish the position of bailees from that of other possessors to my mind satis- factory. Claridge's Case, [1892] 1 Q. B. 422, was treated as open to question by the late Master of the Rolls in Meux v. Great Eastern Rij. Co., [1895] 2 Q. B. 387, and, with the greatest deference to the eminent judges who decided it, it seems to me that it cannot be sup- ported. It seems to have been argued before them upon very scanty materials. Before us the whole subject has been elaborately discussed, and all, or nearly all, the authorities brought before us in historical sequence. Appeal allowed. Sir Mobert Finlay, A. G., and Acland, for the Postmaster-General. Pick/ord, K. C, and Lauriston jBatten, for the respondents, cargo claimants. Note on Judicial Phocess. — At common law, the goods of a judgment debtor were " bound " from the teste of the writ of execution. That is, although the prop- erty in or title to tlie goods remained in tlie debtor until a sale by the sheriff, after tlie teste of the writ the debtor could not dispose of them so as to prevent their being taken in execution, except by a sale in market overt. Note to Wlieatley v. Lane, 1 Wms. Saund. 219 (g). And see Preston v. Surgoine, Peck (Tenn.), 72; Berri/ v. Clements, 9 Humph. 312; Eocco v. Parczyk, 9 Lea, 328. By the Statute of Frauds DISTRESS. 277 (29 C. II. c. 3, § 16) it was provided that tlie judgment should bind the goods only from the time of the delivery of the writ to the sheriff; which time was to be en- dorsed on the writ. In the United States, in a number of jurisdictions, the law is like that of England under the Statnte of Frauds. This result has generally been reached by legislation, sometimes adopting the English statute. See Hotchkiss v. McVickar, 12 Johns. 403 ; Duncan v. M'Cumbar, 10 Watts, 212; Prentiss, Sj-c. Co. v. Whitman, ^c. Co., 88 Md. 240 ; Gott v. Williams, 29 Mo. 461. In such jurisdictions after delivery of the writ of execution to the sheriff, the lien of the execution cannot be defeated by a sale of the goods before they are actually seized. Newell v. Siblei/, 1 Southard, 381. Nor can an artisan acquire a lien on the goods for services performed on them. McCrisaken v. Osweiler, 70 Ind. 131. But statute sometimes relaxes the rule in favor of innocent purchasers. See Moses V. Thomas, 2 Dutch. 124. Until the officer levies upon the goods, he can maintain no action against a stranger wlio interferes with them. Hotchkiss v. McVickar, 12 Johns. 403; Mulheiser v. Lane, 82 111. 117. In some other jurisdictions, by common law or by legislation, the rights of a judg- ment debtor are unaffected until the actual levy of tlie execution. See Reeves v. Hebern, 16 Iowa, 234 ; Albrecht v. Long, 25 Minn. 163 ; Knox v. Webster, 18 "Wis. 406. In Reeves v. Sebern, supra, it was said that the common-law rule is unjust and not in accord with the policy of our laws. After the officer has actually seized property subject to seizure, he may maintain all the actions available by one lawfully in possession of goods against a stranger who interferes with them. Wilbraham v. Snow, 2 Saund. 47. Or against the defend- ant in the action in which the seizure is made. Williams v. Herndon, 12 B. Mon. 484. Or against the plaintiff in the action. Garner v. Willis, Breese (111.), 368. And of course, if an action is brought against him, the sheriff can defend on his right under the writ. Martin v. Watson, 8 Wis. 315. But the title to the goods seized is not changed; the defendant to the process can still convey or mortgage them, the title of the purchaser or mortgagee being subject to divestment by sale or other execution of the process. Bates v. Gest, 3 McCord, 493. In general, property which has been seized on process by one officer cannot be taken from his custody under process held by another officer. As to when goods are in custodia legis, see Freeman, Executions (3d ed.), §§ 129-135; Cobbey, Replevin (2d ed.), c. 13. The officer, while in the possession of the goods, has no right to use them for his own personal advantage ; his duty is to keep them safely to be sold or otherwise dis- posed of under the process. Banker v. Caldwell, 3 Minn. 94, 104. When the process has been satisfied without sale of the goods seized, or when the process has been set aside, the right of the officer to hold the goods against their owner ceases, and the owner is entitled to possession. It has been held in New York that in such case the owner cannot maintain replevin against the officer. Gardner v, Campbell, 15 Johns. 401. But this decision was disapproved in Baker v. Fales, 16 Mass. 147, 153. See Banker v. Caldwell, 3 Minn. 94, 104. After the legal process is satisfied or set aside, the officer cannot maintain replevin against one to whom he had confided the goods for safe-keeping. Walpole v. Smith, 4 Blackf. 304. But he may recover in an action against a stranger who takes the goods from him. McClintock V. Graham, 3 McCord, 243. If the officer abandons the goods after seizure, he can- not thereafter maintain an action against a stranger who takes them. Blades v. Arundale, 1 M. & S. 711. On the subject of Trespass ab initio, see Ames, Cas. Torts, 247 et seq. ; Ames, " History of Trover," 11 Harv. Law Rev. 287-9 ; Boston S/- Maine R. R. v. Small, 85 Me. 462. Note on Distress. — Rights in personal property may sometimes be acquired without the consent of the owner and without the aid of legal process. An ancient example of this is found in the law of distress. Distresses were chiefly of two kinds : for rent in arrear, and of things damage feasant. In the first case, the landlord could 278 DISTRESS. seize chattels fonntl on the premises demised, and in the other the owner of the soil coaUl seize the chattel doing damage ; and tlie property could be held in eacli ease until satisfaction was made. Distress for Rent in Arrear. — The relation of landlord and tenant must exist. There must be an actual demise {Dunk v. Hunter, 5 B. & Aid. 322), of a corporeal hereditament (Co. Lit. 142 a), at a rent certain or which maybe made certain (MelicJc V. Benedict, 43 N. J. L. 425). As the relation of landlord and tenant is a requisite, this remedy was unavailable for the last instalment of rent upon a lease, unless the lessor reserved the payment at an earlier day tlian the last of the term. Statute 8 Anne, c. 14, §§ 6, 7, extended the time within which a distress could be levied in such case. Taylor, L. & T. (8th ed.) § 572. In some of the States, the landlord may distrain before the rent is due, if the tenant is seeking to remove his goods. 1 Stim. Am. Stat. Law, § 2032. When rent is payable in advance, a distress may be levied when the rent is due. Buckle// v. Taylor, 2 T. R. 600. A distress can be made only on the premises demised. Poole v. Longuevill, 2 Saund. 282, 284, note 2; Taylor, §§ 574-5. But in some of the States, by statute, the distress may be levied anywhere within the county. See Kellogg Newspaper Co. V. Peterson, 162 111. 158, 161. By statute 11 G. II. c". 19, the landlord could follow the goods of the tenant which had been secretly and fraudulently removed to avoid a distress. See Taylor, §§ 576-7. At common law, not only the tenant's goods, but also those of an under-tenant or a stranger, ui)on the premises, were subject to be distrained. Gilbert, Distresses (4th ed.), 35. Tliis rule has been relaxed in England as to lodgers by 34 & 35 Vict. c. 79, and in some of the American States as to strangers in general. See Taylor, §§ 683-4. As to what chattels were absolutely or conditionally exempt from distress at common law, see BuUen, Distress (2d ed.), c. 3. Statutes have added to these. Taylor, §§ 585-6. A distress can be made only between sunrise and sunset. Tutton v. Darke, 5 H. & N. 647. As to distress after the death of the landlord for rent accrued during his life, see Bullen, 66. Before seizure by the landlord, he has no interest in the goods, and they may be sold by the tenant and removed by the buyer. Kellogg Newspaper Co. v. Peterson, 162 111. 158. Even after seizure, the landlord, it seems, cannot maintnin trespass or trover against one who takes the goods from him ; his remedy was by a writ of res- cous if the goods were taken on the way to the pound, and by writ