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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 away. On the other point, I agree with the rest of the court that no lien exists.
BRITISH EMPIRE SHIPPING COMPANY V. SOMES.
(Reported E. B. & E. 353.] Action for money had and received. A case was stated substantially 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 defendants' dock at Blackwall, September 1, 1856. When the repairs were completed the defendants declined to let the ship go until their bill for repairs was paid, or security given for its payment; and the plaintiffs not doing either, the defendants on November 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 days 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 Lord Campbell, C. J., and Wightman, Erle and Crompton, JJ. Blackburn, 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 their 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
1 Goodrich v. Willard, 7 Gray, 183, accord. ? The following short statement is substituted for that in the report.
BRITISH EMPIRE SHIPPING COMPANY V. SOMES.
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 authorize such a claim for compensation, even supposing that a wharfinger 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 Rex 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 making or repairing which he has espended 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 or ex 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 use of it; and there seems no consideration for such a promise. Then the chattel can hardly be supposed to be wrongfully left in the possession 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 miglit be maintained : when does the debt arise, and 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. Hitchcock, 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 court, it was held that, after appearance, the plaintiff could not justify detaining the horse for his keep. Bul. 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 and drink at the peril
of him that distraineth, and he shall not have any satisfaction therefore." Co. Litt. 47 b.
For these reasons, on the question submitted to us, we give judgment for the plaintiffs.
Judgment for the plaintiff's.
[Reported 7 W. & S. 466.) The plaintiff brought this action of trover against the defendant, who is a warehouseman in Clarion County, on the Allegheny 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 might 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;
Gibson, C. J. Though a plurality of the barons in Rex v. Humphery, M'Cl. & Y. 194-5, 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 wellknown distinction between a commercial lien, wbich 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 the particular property. Commercial or general liens, which have not been fastened on the law merchant hy 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 Rex v. Humphery, it was involved in the discussion only incidentally; and I have met with it in no other case. But there is doubtless & specific lien provided for it by
1 The case was affirmed in the Exchequer Chamber, E. B. & E. 367, and in the House of Lords, 8 H. L. C. 338.
the justice of the common law. From the case of a chattel bailed to acquire additional value by 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, 5 Mees. & Welsb. 342, it was held to extend no further than to cases in which the bailee has directly conferred additional value by labor or skill, or indirectly by the instrumentality of 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 intrinsic value by means exclusively within his control. There are certainly 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 expiring embers of the primitive notion that the basis of the lien is intrinsic improvement of the thing by mechanical means; but if we get away 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. & Welsb. 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 judicial mind to escape from the narrow confines of the earlier precedents, but without having as yet 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 Ellenborough, 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. Latour, 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. R. 17, Lord Kenyon said it had been the wislı of the courts, in all cases and at all times, to carry the lien of the common law as far as possible ; and that Lord Mansfield also thought that justice 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 every 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 established prices; but it is by 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 convenience 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 woull 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 hiin, each parcel of the goods is bound, not only for its particular proportion, but for the whole, provided the 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 entire interest was in Hamilton & Humes, in whose right the plaintiff sues; and the principle laid down by the presiding judge was substantially 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.
1 See Low v. Martin, 18 Ill. 286.