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 Blackburn, 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 contract 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 entitled 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 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 say to him, "Those horses are mine," and the vendee had 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 succeeds 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.

I

It seems to me, therefore, that the learned judge was wrong. 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 defendant 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 by 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 possession in the horses, he would have lost the lien, and so in the case of a wrongful sale the lien is destroyed. With regard to the carriage and harness, the defendant has a lien on them for his whole account. The plaintiff was willing to pay some portion of the bill, but he never was willing to pay the whole amount. Then it was said, although the defendant improperly sold the horses, yet 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 destroyed, 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 Donald v. Suckling, Law Rep. 1 Q. B. 585, and Halliday 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 say that those cases were only authorities if the action had been brought by Bennett, but none whatever as against the plaintiff who is seeking to recover his own property.

or not.

With regard to the damages, even if Johnson v. Stear be an authority against an action by Bennett, it is no authority as against the

plaintiff, who has an absolute right of property, 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.

The inn

COTTON, L. J. The question is, what is the defendant's lien as innkeeper? 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. 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 with the guest as much as he is bound to receive the guest himself- the liability of the innkeeper with respect to them is the same as his liability with respect to the other goods of the guest, and there is no reason for excluding the claim of the innkeeper although the horses, harness, and carriage are not received in the dwelling-house, but in adjoining buildings. There is no authority for saying 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 tendered 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 plaintiff 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, yet the lien is lost by the act of the defendant, and the innkeeper cannot claim anything 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. Erle, C. J., says, "The deposit of the goods in question with the defendant to secure payment 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, Erle, C. J., says 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.

SUPREME COURT OF JUDICATURE OF INDIANA. 1855.

[Reported 7 Ind. 21.]

APPEAL from the Wabash Circuit Court.

DAVISON, J. Assumpsit. The complaint is that Phelps, the plaintiff 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 barreling the lard so rendered for hire at the town of Wabash, three thousand hogs' heads, which they agreed to render into lard, and barrel the same for the plaintiff, within a reasonable time, &c., for which service he agreed to pay them a reasonable compensation, &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 barreling 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 quantity 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 twenty-three barrels, and before the commencement of this suit, notified the defendants to deliver to him all the lard made from said heads; but they declined to deliver any more lard. He did not at any time before the suit either pay or tender to them any sum for their services, nor was any demand made by them for such services. When the twenty-three barrels were delivered, the lard was subject to their claim for rendering the same, amounting to $51.63, which amount was never paid to them. The delivery at Jackson's warehouse was with his 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 party 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 circumstances sufficient to produce the inference that the defendants waived their lien before the institution of this suit, they were not compelled to give up the property when the plaintiff demanded it without the payment or tender of a reasonable compensation for rendering and barreling 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 are 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 defendants, to have shielded them, should have been qualified by their claim of a lien. There is authority in support of that position. Dow v. Morewood, 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 refusal, upon a demand duly made, is evidence of a conversion; because