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man, on the ground of his having applied to it his paint or varnish, or thread, or other materials, or must be deliver these to his employer without payment, becanse he has bestowed his own personal labor in addition to them? Upon the whole, we think this supposed distinction is contrary to reason, and to that principle in the law which requires the payment of the price and the delivery of the chattel to be concurrent acts, where no day of payment is given ; and, therefore, we think the case of Brenan v. Currint, and the dicta on which it appears to have been founded, are not law, and that the judgment in the present case must be for the defendants.

Postea to the defendants.

BEVAN v. WATERS.

Nisi PRIUS. 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 contended, 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 Wallace v. Woodgate, R. & M. N. P. C. 193.

Wilde, Serjeant, and R.V. Richards, for the plaintiff. Jones, Serjeant, for the defendant. Best, C. J. It was certainly held in that case, on the authority 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 improvement 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 bringing 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 year aforesaid delivered by the plaintiff to the defendant to be stabled

i Part of the case relating to another point is omitted.

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 afterwards, and before and at the time of the commencement of this action, to wit, on the 16th day of March, 1833, in the county aforesaid, the 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 reward 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 by 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 defendant, hath, from the time of the delivery of the said gelding, hitherto detained and still detains the same, as he lawfully may, for the cause aforesaid. General demurrer and joinder.

Mansel, in support of the demurrer.
Erle, contra.

LORD LYNDHURST, C. B. The question is on the sufficiency of the plea. Now, the plea states that the horse was 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; 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 bas not a lien upon the horse ; I am of opinion that be 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, by virtue of labor performed in the course of their trade, upon chattels bailed to them. The decisions on the subject seem to be all one way. In Chapman v. Allen, it was decided that a person receiving cattle to agist had no lien. In Yorke v. Grenaugh, it was held, not merely by Lord Chief Justice Holt, but by the whole court in their decision, that a livery-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 erpressly draws the distinction between a trainer, who bestows his skill and labor, and a livery-stable keeper; between horses taken in by a trainer and altered in their value by the application of his skill and labor, and horses standing at livery without such alteration. When the case came on before the Court of Common Pleas, that distinction seems to have been supported. It appears to me, therefore, that the present case is decided by the concurrence of all the authorities.

VAUGHAN, 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 benefit 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 different animal by the application of the skill and labor of the bailee. GURNEY, 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 belonging 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 guilty ; 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 Cummins by the plaintiff, and there was and still is due and owing to the said C. Cummins from the plaintiff the sum of £16 58., 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 58., should remain unpaid ; that the said two cows then and at the time of the said agreement were in the possession of the said C. Cummins, and so remained until the plaintiff fraudulently, unlawfully, and wrongfully 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 possession of the said C. Cummins under the same, and whilst the said C. Cummins had a lien upon the same by law and by the agreement aforesaid, and just before the said time when &c., the plaintiff wrongfully, unJawfully, 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 premises 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 outhouse 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 belonging to the defendant. The jury found that there was no such agreement 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 reserving 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 the agistinent of cattle. Alexander having, in Easter Term last, obtained a rule accordingly.

Cresswell 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 by 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 duplicity, 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 think 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, necessary 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 Bevun v. Waters, and by this court in Scarfe v. Morgan, is, that by the general law, in the absence of any special agreement, whenever a party has expended 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 bis possession, as was the case with the stallion in Scarfe v. Morgan; he simply takes in the animal to feed it. In addition to which, we have the express authority 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. Etheridge. The analogy, also, of the case of the livery-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 anything, as it has not been formally decided; for in Jacobs v. Latour, 5 Bing. 130; 2 M. & P. 201, the point was left indetermined. 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 subservient to this general right, which overrides it; so that I doubt if that doctrine would apply where the animal delivered was a racehorse, as that case differs much from the ordinary case of training. I do not say that the case of Bevan 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 inconsistent with the more general right exerciseable by the owner of the cattle.

ALDERSON, B. I agree that the agister bas 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

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