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on the animal but merely takes charge of it and feeds it; and the
decision in Scarf e v. Morgan, 4 Alees. & W. 270, that one who receives
a mare to be covered by a stallion has a lien, as the mare may be
made more valuable, by proving in foal; in the first of which cases.
Baron Parke declares the rule to be as follows : The general rule is, in
the absence of any special agreement, that, whenever a party has
exi^ended labor and skill in the improvement of a chattel bailed to him,
he has a lien upon it. This rule has been questioned in Steinman v.
Wilkins, 7 Watts & S. 466; but has been adhered to in this and other
states, Grinnell v. Cook, 3 Hill, 491; Morgan v. Congdon, 4 X.Y. 553;
Pinney v. Wells, 10 Conn. 105; Cummings v. Harris, 3 Vt. 244; and
if it is to be departed from, it must be left to the court of appeals to
do so. It is not for this court to overturn or disregard a long line of
authorities. The respondent relies upon the rule as it is laid down by
Senator Verplank in McFarland v. Wheeler, 26 Wend. 467: "That
every man who has law^ful possession of anything upon which he has
sxpended his money, labor or skill, at the request of the o^\^ler, has a
right to detain it as security for his debt." This is a loose statement
of the rule, which is more correctly laid do^vn by Jewett, J., in
Morgan v. Congdon, 4 N.Y. 553, as follows: that ''Every bailee for
hire, who by his labor and skill has imparted an additional value to the
goods, has a lien upon the property for the pajTiient of his reasonable
charges," which is the rule that must be appHed in this case.

The type from which the plaintiffs printed the ''Register," from
time to time, for the McKillop & Sprague Company, was furnished
by the company, and belonged to them. It cannot be assumed that
the value of it, as tj^e, was enhanced by the plaintiffs' printing from
it. On the contrary, if there is any inference, it is that the constant
use and printing from the type would diminish its value. The plain-
tiffs had a lien upon the book printed from the tj'pe, for that was a
thing produced by their labor and skill ; but I fail to see how, under
the rule established by the authorities cited, they could acquire,
except by contract, any lien upon the type, which was purchased by
the jNIcKillop & Sprague Company, and left with the plaintiffs to
print from.

Judgment reversed.



NICHOLSON V. CHAPMAN.

2 H. Black. 254. 1793.

Certain timber of Nicholson was accidentally loosened from a
dock on the river Thames, was carried by the tide a considerable dis-
tance, and left at low water on a towing-path. Chapman found it,



244 NICHOLSON V. CHAPMAN. [CHAP. I.

and placed it beyond the reach of the water at high tide. Nicholson
demanded the timber from Chapman, and Chapman refused to
deliver it until he was paid for his trouble.

Lord Chief Justice Eyre. It is therefore a case of mere finding,
and taking care of the thing found (I am willing to agree) for the
owner. This is a good office, and meritorious, at least in the moral
sense of the word, and certainly entitles the party to some reasonable
recompence from the bounty, if not from the justice of the owner;
and of which, if it were refused, a court of justice would go as far
as it could go towards enforcing the pajTnent. So it would if a
horse had strayed, and was not taken as an estray bj'' the lord under
his manorial rights, but was taken up by some good-natured man
and taken care of by him, till at some trouble, and perhaps at some
expense, he had found out the owner. So it would be in every other
case of finding that can be stated (the claim to the recompence
differing in degree, but not in principle); which therefore reduces
the merits of this case to this short question. Whether every man
who finds the property of another which happens to have been lost
or mislaid, and voluntarily puts himself to some trouble and expense
to preserve the thing, and to find out the o^^^ler, has a lien upon it
for the casual, fluctuating, and uncertain amount of the recom-
pence which he may reasonably deserve? It is enough to say, that
there is no instance of such a lien having been claimed and allowed ;
the case of a pointer dog was a case in which it was claimed and
disallowed, and it was thought too clear a case to bear an argument.
Principles of public policy and commercial necessity support the
lien in the case of salvage. Not only public policy and commercial
necessity do not require that it should be established in this case,
but very great inconvenience may be apprehended from it if it
were to be established. The o\\'ners of this kind of property, and
the oAvncrs of craft upon the river, which lie in many places moored
together in large numbers, would not only have common accidentr-
from the carelessness of their servants to guard against, but also the
wilful attempts of ill-designing people to turn their floats and vessels
adrift in order that they might be paid for finding them. I men-
tioned in the course of the cause another great inconvenience,
nam.ely, the situation in which an owner, seeking to recover his
property in an action of trover, will be placed, if he is at his peril to
make a tender of a sufficient recompence before he brings his action:
such an o-wTier must always pay too much, because he has no means
of knowing exactly how much he ought to pay, and because he must
tender enough. I know there are cases in which the owner of prop-
erty must submit to this inconvenience; but the number of them
ought not to be increased: perhaps it is better for the public that
these voluntary acts of benevolence from one man to another,
which are charities and moral duties, but not legal duties, should



CHAP. I.] WENTWORTH V. DAY. 245

depend altogether for their reward upon the moral duty of gratitude.
But at any rate, it is fitting that he who claims the reward in such
case should take upon himself the burthen of proving the nature of
the service which he has performed, and the quantmn of the recom-
pence which he demands, instead of throwing it upon the owner to
estimate it for him, at the hazard of being non-suited in an action
3f trover.

Judgment for the 'plaintiff.

Note. — In Reeder v. Anderson^s Administrators, 4 Dana (Ky.)
193, Robertson, C.J., said: —

" The only question to be considered in this case is, whether the law
will imply a promise, by the owner of a runawaj^ slave, to pay a
reasonable compensation to a stranger for a voluntary apprehension
and restitution of the fugitive. And, though such friendly offices are
frequently those only of good neighborship, which should not be
influenced by mercenary motives or expectations — nevertheless, it
seems to us that there is an implied request from the owner, to all
other persons to endeavor to secure to him lost property which he is
anxious to retrieve; and that, therefore, there should be an implied
undertaking to (at least) indemnify any person who shall, by the
expenditure of time or money, contribute to a reclamation of the lost
property."

See, accord, Chase v. Corcoran, 106 Mass. 286; Amory v. Flyn, 10
Johns. (N.Y.) 102, 103. See, contra, Watts v. Ward, 1 Oreg. 86.



WENTWORTH v. DAY.

3 Met. (Mass.) 352. 1841.

This action, which was trover for a watch, was submitted to
the court on the following statement of facts:

The plaintiff lost the watch mentioned in his declaration, about
the middle of October 1839, in Bradford, in the county of Essex,
and put the following advertisement into the Essex Banner, a
newspaper published at Haverhill in said county: "Twenty Dollars
reward. Lost, upon the road from Haverhill to Brighton, about two
miles from Haverhill Bridge, a gold lever watch. Whoever will
return it to this office shall receive the above reward. Francis
Wentworth. Oct. 12."

The watch was found, a few days afterwards, by a minor son of
the defendant, who delivered it to the defendant, and he took the
custody of it for his son, and very soon afterwards left it at the
printing office of the Banner, in the care of the printer, with direc-
tions to deliver it to the owner, on his paying the $20 reward.



246 WENTWORTH V. DAY. " [CHAP. I.

In the month of January 1840, the plaintiff returned to Haverhill,
and on his refusing to pay the S20, the defendant resumed the
possession of the watch, and while it was thus in his possession, the
plaintiff demanded it of him, but he refused to deliver it, unless the
plaintiff would pay him the $20 for his son. The plaintiff refused to
do this, but said he would pay SIO. The defendant refused to deliver
the watch, and the plaintiff brought this action.

Shaw, C.J. Although the finder of lost property on land has no
right of salvage, at common law, yet if the loser of property, in
order to stimulate the vigilance and industry of others to find and
restore it, will make an express promise of a reward, either to a
particular person, or in general terms to any one who will return it
to him, and, in consequence of such offer, one does return it to
him, it is a valid contract. Until something is done in pursuance
of it, it is a mere offer, and may be revoked. But if, before it is
retracted, one so far complies with it as to perfonn the labor, for
which the reward is stipulated, it is the ordinary case of labor done
on request, and becomes a contract to pay the stipulated compensa-
tion. It is not a gratuitous service, because something is done which
the party was not bound to do, and without such offer might not
have done. Symmes v. Frazier, 6 Mass. 344.

But the more material question is, whether, under this offer of
reward, the finder of the defendant's watch, or the father, who acted
in his behalf and stood in his right, had a lien on the watch, so that
he was not bound to deliver it till the reward was paid.

A lien may be given by express contract, or it may be implied
from general custom, from the usage of particular trades, from the
course of dealing between the particular parties to the transaction,
or from the relations in which they stand, as principal and factor.
Green v. Farmer, 4 Bur. 2221. In Kirkman v. Shawcross, 6 T. R. 14,
it was held, that where certain dyers gave general notice to their
customers, that on all goods received for dyeing, after such notice,
they would have a lien for their general balance, a customer dealing
with such dyers, after notice of such terms, must be taken to have
assented to them, and thereby the goods became charged ■v\dth such
lien, by force of the mutual agi'eement. But in many cases the law
implies a lien, from the presumed intention of the parties, arising
from the relation in which they stand. Take the ordinary case of
the sale of goods, in a shop or other place, where the parties are
strangers to each other. By the tontract of sale, the property is
considered as vesting in the vendee; but the vendor has a lien on
the property for the price, and is not bound to deliver it, till the
price is paid. Nor is the purchaser bound to pay, till the goods are
delivered. They are acts to be done mutually and simultaneously.
This is founded on the legal presumption, that it was not the inten-
tion of the vendor to part with his goods till the price should be



CHAP. I.] WENTWORTK V. DAY. 247

paid, nor that of the purchaser to part with his money till he should
receive the goods. But this presumption may be controlled, by evi-
dence proving a different intent, as that the buyer shall have credit,
or the seller be paid in something other than money.

In the present case, the duty of the plaintiff to pay the stipulated
reward arises from the promise contained in his advertisement.
That promise was, that whoever should return his watch to the
printing office should receive twenty dollars. No other time or place
of pajinent was fixed. The natural, if not the necessaiy implication
is, that the acts of performance were to be mutual and simultaneous :
the one to give up the watch, on pajanent of the reward; the other
to pay the reward, on receiving the watch. Such being, in our judg-
ment, the nature and legal effect of this contract, we are of opmion
that the defendant, on being ready to deliver up the watch, had a
right to receive the reward, in behalf of himself and his son, and was
not bound to surrender the actual possession of it till the reward
was paid ; and therefore a refusal to deUver it, without such payment,
was not a conversion.

It was competent for the loser of the watch to propose his own
terms. He might have promised to pay the reward at a given time
after the watch should have been restored, or in any other manner
inconsistent with a lien for the reward on the article restored; in
which case, no such lien would exist. The person restoring the
watch would look only to the personal responsibility of the adver-
tiser. It was for the latter to consider, whether such an offer would
be equally efficacious in bringing back his lost property, as an offer
of a reward secured by a pledge of the property itself; or whether,
on the contrary, it would not afford to the finder a strong temptation
to conceal it. With these motives before him, he made an offer, to
pay the reward on the restoration of the watch; and his subsequent
attempt to get the watch, without perfomiing his promise, is equally
inconsistent with the rules of law and the dictates of justice.

The circumstance, in this case, that the watch was found by the
defendant's son, and by him delivered to his father, makes no differ-
ence. Had the promise been to pay the finder, and the suit were
brought to recover the reward, it would present a different question.
Here the son delivered the watch to the father, and authorized the
father to receive the reward for him. If the son had a right to detain
it, the father had the same right, and his refusal to deliver it to the
0"wner, without payment of the reward, was no conversion.

Judgment for the defendant.



248 WILSON V. GUYTON. [CHAP. I,

WILSON V. GUYTON.

8 Gill (Md.) 213. 18-49.

Appeal from Harford County Court.

This was an action of replevin, instituted by the appellee, for the
recovery of a horse which had strayed from the possession of the
plaintiff, and had been taken up by one William H. Pearce, and was
retained by the defendant as Pearce's agent. The plea was nwi cepit.

At the trial, the defendant proved that the plaintiff was the o^aier
of the horse in question, and that having lost said horse in the
month of July, 1847, the plaintiff offered a Hberal reward, by adver-
tisement, to any one who would take up said horse, and deliver him
to the plaintiff; and that said Pearce, after said advertisement, and
in consequence thereof, took up said horse, and offered to deliver
him to the plaintiff, upon said plaintiff's paying S3, as the reward
for such taking up. He also further proved, that plaintiff admitted
that the sum of S3 was a reasonable reward, and within the tenns of
the advertisem.ent, and that defendant held said horse at the time
the writ was issued in this case, as the agent of said Pearce. The
defendant then prayed the court to direct the jury, "that unless
the plaintiff proved, or offered proof that he had, before the institu-
tion of this suit, paid the said $3, the reward aforesaid, or tendered
or offered to pay the same, the said plaintiff is not entitled to
recover." Which direction the court (Archer, C.J., and Purviance,
A.J.,) refused to give, but instructed the jur}'', that the said William
H. Pearce had no right to retain said horse till the said reward was
paid. The defendant excepted, and the verdict and judgment being
against him, appealed to this court.

Dorset, C.J., delivered the opinion of this court.

The doctrine of lien is more favored now than fonnerly; and it is
now recognised as a general principle, that wherever the part}' has,
by his labor or skill, etc., improved the value of property placed in
his possession, he has a lien upon it until paid. And liens have been
implied when, from the nature of the transaction, the owmer of the
property is assumed as having designed to create them, or when it
can be fairly inferred, from circumstances, that it was the under-
standing of the parties that they should exist. The existence of liens
has also been sustained where they contributed to promote public
policy and convenience. If any article of personal property has been
lost, or strayed awaj^, or escaped from its owmer, and he offers a
certain reward, payable to him who shall recover and deliver it
back to his possession, it is but a just exposition of his offer, that he
did not expect that he who had expended his time and money in
the pursuit and recover^' of the lost or escaped property, would
restore it to him, but upon the pajTnent of the proffered reward,



CHAP. I.] BRITISH EMPIRE SHIPPING CO., LIMITED, V. SOMES. 249

and that as security for this, he was to remain in possession of the
same until its restoration to its owner, and then the payment of the
reward was to be a simultaneous act. It is no forced construction of
his act, to say that he designed to be so understood by him who
should become entitled to the reward. It is, consequently, a lien
created by contract. It is for the interest of property holders so to
regard it. It doubles their prospect of a restoration of their property.
To strangers it is everything; for few, indeed, would spend their
time and money, and incur the risks incident to bailment, but from
a belief in the existence of such a lien. Public convenience, sound
policy, and all the analogies of the law, lend their aid in support of
such a principle. Nor are we without an express authority upon this
subject. In Wentworth v. Day, 3 Metcalf, 352, the supreme court
of Massachusetts decided, "that a finder of lost property, for the
restoration of which the owner has offered a reward, has a lien on
the property, and may retain possession of it, if, on his offer to restore
it, the owner refuses to pay the reward."

But, in the case before us, there is no ground for the implication
of such a lien from the compact of the parties. There was no fixed
or certain reward offered by the owner, to be paid on the delivery
of his property. His offer was to pay a "liberal reward." Who was
to be the arbiter of the liberality of the offered reward? It cannot
be supposed that the owner, by his offer, designed to constitute the
recoverer of his property the exclusive judge of the amount to be
paid him as a reward. And it is equally unreasonable and unjust,
to say that the owner should be such exclusive judge. In the event
of a difference between them, upon the subject, the amount to be
paid must be ascertained by the judgment of the appropriate
judicial tribunal. This would involve the delays incident to litiga-
tion, and it would be a gross perversion of the intention of the owner
to infer, from his offered reward, an agreement on his part, that he
was to be kept out of the possession of his property till all the delays
of litigation were exhausted. To the bailee thus in possession of
property, such a lien would rarely be valuable, except as a means of
oppression and extortion ; and, therefore, the law will never infer its
existence either from the agreement of the parties, or in fm'therance
of public convenience or policy.

Judgment affirmed.



BRITISH EMPIRE SHIPPING COMPANY,
LIMITED, V. SOMES.



E. B. & E. 353. 1858.



The plaintiffs delivered a ship to the defendants to be repaired.
After the repairs were completed, the plaintiffs demanded the ship



250 BRITISH EMPIRE SHIPPING CO., LIMITED, V. SOMES. [CHAP. I.

and the defendants refused to deliver it until their charges were paid.
They notified the plaintiffs that they should charge them an addi
tional amount for the hire of a dock so long as the ship remainec
with them. This additional charge was later paid under protest, and
the plaintiffs now sue to recover back the amount so paid.

Lord Campbell, C.J. We are of opinion that, under the circum-
stances stated in the special case, the defendants are not entitled to
retain the sum paid to them in respect of the item of 567Z., or any
other sum, as a compensation for the use of their dock in detaining
the plaintiffs' ship. As artificer who had expended their labour 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 pajTnent. The defendants gave notice that they would
demand 211. a day for the use of their dock dui'ing the detention: but
the plaintiffs denied their liability to make any such pajonent, 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 w^harfinger 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 pajTuent 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 shew that, by the general law of England, an artificer
who, exercising his right of lien, detains a chattel, in making or re-
pairing which he has expended his labour and materials, has a claim
against the owmer 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
owTier of the chattel can hardly be supposed to have promised to pay
for the keeping of it while, against his \\dll, 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, w^hen the owner has been prevented by the artificer
from taking possession of it himself. If such a claim can be sup-
ported, it must constitute a debt from the owner to the artificer, for
which an action might 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



CHAP. I.] BRITISH EMPIRE SHIPPING CO., LIMITED, V. SOMES 251

express contract to that effect, or the owner leaves his property on
the premises beyond a reasonable time, and after notice has beer
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 owa 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 {Henly 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; 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 and drink at the
peril of him that distraineth, and he shall not have any satisfaction
therefor." Co. Litt. 47 b.

For these reasons, on the question submitted to us, we give judg-
ment for the plaintiffs.

Judgment for the 'plaintiffs.

Note. — In Devereux v. Fleming, 53 Fed. 401, one of the questions
was whether a Avarehouseman had any claim for the storage of goods
subsequent to the time when they had been demanded and he had
refused to deliver because the charges were not paid. The court said
(p. 405) : " It is contended with great earnestness and plausibility
that, when a warehouseman enforces his lien and refuses to deliver
on demand, his custody thenceforward is not under his contract of



Online LibraryUnknownSelect cases and other authorities on the law of property → online text (page 29 of 97)