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William Wait.

A treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) online

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Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) → online text (page 30 of 109)
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property thereon that does not belong to the person as whose property
it was seized, Duncan v. Stone, 45 Yt. 118; Fiedler v. Maxwell, 2
Blatchf. (C. C.) 552. So it lies against an executor or administrator
for property converted by the intestate in his life-time {Decrow v.
Mon^s, 1 Hayw. 21 ; Avery v. Moore, id. 362), so, against a bailee
who has received property for one purpose, and applied it to another,
the rule being that, if one who is lawfully in the possession of the
property of another misuses it, or applies it to another use, such act
amounts to a conversion. Rijpley v. DoTbier, 18 Me. 382; Harvey v.
Epes, 12 Graft. 153. So it lies against a postmaster for refusing to
deliver a letter {Teal v. Felton, 12 How. [U. S.] 284), so against one
who takes the property by mistake {Piatt v. Tattle, 23 Conn. 233), or
one who purchased it in good faith, of one whom he believed to be the
owner. Morrill v. Moulton, 40 Yt. 242 ; Tollman v. Turck, 26 Barb.
167 ; Garrard v. Pittsburgh, etc., R. R. Co., 29 Penn. St. 154. So it



142 TROVER.

lies against a carrier or other Lailee for a refusal to deliver goods to the
ti'ue owner, on. demand {lioolcs v. Midland liaUway Co., IG Jur. 10,
Ol>), and indeed, agamst any person who convertH the goods of another
M'ronufully, nnder whatever pretense or authority. Morrill v.
Moulion, 40 Vt. 242 ; Flanders v. Colhy, 28 N. 11. 34 ; Yo.st v. Stout,
4 Cold. (Tenn.) 205; Teal v. Felton, 12 How. (U. S.) 2S4:; Piatt v.
Tiff fie, 23 Conn. 233 ; Jlarvei/ v. Fpps, 12 Gratt. 153 ; Mead v.
Thomj)S07i, T8 111. 62; Dudley \. Ab?ier, r)2 Ala.. 572 ; J*erham v,
Carey, 117 Mass. 102; Woodis v. Jordan, 62 Me. ^'^0; Nelson v.
Bed', 54 Ala. 329 ; Lidlanapolls, etc., It. 11. Co. v. Ilerndon, 81 111.

143 ; Smith v. Colhy, 07 Me. 109.

§ 5. Who not liable to the action. No person is chargeable in trover?
for property in his possession belonging to another, unless he holds it
wrongfully, and against the right of the owner. In order to maintain
the action, the plaintiff must show that the defendant, not only has the
property in his possession, but, also, that he has wrongfully converted
it. ^QQpost, p. 163, Art. 2. Therefore, it follows that, whenever a person
has a justifiable cause for withholding the property, the action will not
lie. Thus, it will not lie against an officer who has seized the goods under
a valid legal process against the owner {Jenner v. Jollffe, 9 Johns.* 381 ;
JoJtnson V. Williams, 48 Yt. 565) ; as upon a search warrant {Pettiyru
V. Saunders, 2 Bailey [S. C], 549) ; upon a warrant of seizure under a
liquor law {Johnson v. PerTcins, 48 Vt. 572) ; or upon a writ of attach-
ment or execution. Jenner v. Jollffe, 9 Johns. 381. But it does lie, if
the officer wrongfully converts the property, or if the process is invalid,
or he sells it otherwise than as provided by law. Wright v. Spencer, 1
Stew. (Ala.) 576. It seems, however, that the attaching or execution
creditor although he directs the taking of the property, and points it
out to the officer, is not liable i7i trover, unless he has the actual cus-
tody of the property. The reason for this is, that the property is held
by the officer, not as agent for the creditor, but as an officer and while
in his hands, it is in the custody of the law. Adams v. Ahhott, 2 Vt.
383 ; contra, see Lihhy v. Soule, 13 Me, 310. Ante, p. 139. And the
officer is responsible for its safe and proper keei:)ing. A third person
who has consented to the sale of his property by another upon certain
conditions, cannot maintain trover against the vendee therefor, even
though, after procuring the property, he refuses to perform his agree-
ment. Poioell V. Powell, 6 Sup. Ct. (T. & C.) N. Y. 51 ; 3 Hun, 413.
But when the parties labor under a mutual mistake as to the terms of
sale, and the vendor has delivered the property, he may, upon putting
or offering to put the vendee in statu quo, maintain trover for the prop-
erty sold. Tripp V. Pu^lver, 5 Sup. Ct. T. & C. (N. Y.) 30 ; S. C, 2,



TROVER. 143

Jlun, 511 ; and the same is the rule when the vendee obtained the goods
hy fraud. Ayres v. French^ 41 Conn. 142, 153 ; Dow v. Sanborn, 3
Allen, ISl ; Hall v. Naylor, 18 N. Y. (4 Smith) 588. Trover will not
lie against an innocent purchaser of goods, from one who acquired the
property by purchase, however fraudulently. W'dl'uDtison v. liusnel,
39 Conn. 406 ; Brown v. Pierce, 97 Mass. 46, 48 ; Cooh v. Gilmartin,
34 N. H. 556. But the rule is otherwise where the vendor had no title
to the goods, but was a naked wrong-doer. Hoffman v. Carow, 22
Wend. 285 ; Morrill v. Moulton, 40 Yt. 242 ; Tallman v. Turch, 26
Barb. 167. Therefore, an auctioneer {Hoffman v. Carow, 22 AVend.
285), or any individual who innocently sells stolen goods, is liable in
trover therefor to the owner. Courtis v. Cane, 32 Yt. 232. The dis-
tinction is, that, in the case of a fraudulent purchaser, a title, although
defeasible, is obtained, while in the case of a mere trespasser, bailee,
etc., n© title whatever exists, consequently he can give none. William-
son V. Russell, 39 Conn. 406. It was formerly the rule, particularly
in England, that before trover could be maintained for stolen goods^
the thief must first be prosecuted, or steps to that end taken ; but,
whatever may formerly have been the rule, it is now held that trover
may be brought against a third person having the goods, whether the
thief has been prosecuted or not. White v. Spettigue, 13 M. &
W. 603. ^QQ^post, pp. 203, 204, § 19.

Trover does not lie against an agent for selling goods of his principal
for a price less than that directed {JSIooi-e v. McKibhin,. 33 Bai'b. 246);
nor against a person with whom goods are deposited for sale at a fixed
price, though he sells them for less. Sarjeant v. Blunt, 16 Johns. 74.
But if he sells the property and takes a note payable to himself, and
refuses to deliver it to the principal, he is liable in trover for the note,
although he had authority to take a note in payment {Mcl^ear v. At-
wood, 17 Me. 434) ; and, if an agent sells goods to pay his own debt,
and the vendee is aware that he holds the goods as agent, both the agent
and the vendee are liable in trover. Herron v. Hughes, 25 Cal. 555,
If one, without authority, sells the plaintiff's chattel to the defendant,
who receives in payment a bank check which he indorses and gives to
the plaintiff in payment of a debt he owes him, and the plaintiff, in
ignorance of the sale, collects the check and applies the proceeds to
the payment of the debt ; these acts are not a ratification of such sale.
Thacher v. Pray, 113 Mass. 291 ; 18 Am. Rep. 480.

Trover does not lie against a mortgagee of chattels who has never
taken possession under his mortgage. The Matteawan Co. v. Bentley,
13 Barb. 641. It does not lie against a bona fide holder, for value, of a
note, draft, check, bill of exchange, or other negotiable security, althougli



144 TllOVER.

he took it from one M'lio had stolen it, or who had no valid title thereto.
Laicson V. Wt'doUy 4 Esp. 57 ; Miller v. liace, 1 Burr. 452 ; Grant v.
Vauylin, 3 id. 1524 ; Worcester Co. Bank v. Dorchedery etc., Bank^
10 Gush. 480 ; Wijer v. Dorchester, etc., Bank, 11 id. 51.

Where gL>ods have been deposited with a person for any pni*pose,
and any other person tliaii the depositor demands them from the bailee,
the bailee cannot be made chari(eal)le in trover for the goods, 6ini})ly
because ho refuses to deliver them until lie has had an opportunity to
ascertain who is the real owner of the goods {Sheridan v. New Quay
Co., 4 C. P>. [N. S.] 618 ; Lee v. B-iyes, 18 C. B. GOT ; Wilson v. Cook,
3 E. D. Smith [N. Y.], 252 ; Grijfin v. Alsoj), 4 Cal. 40G) ; nor until a
reasonable time for that purpose has elapsed. Carroll v. Mix, 51 Barb.
212; Doiod v. Wadsivorth, 2 Dev. (N. C.) 130 ; Sj^ence v. Mitchell, 9
Ala. 744; Oglex. Atkinson, 5 Taunt. 759 ; Billotty. Wilkinson, 3 H.
tfe C. 345 ; Woodby v. Coventry, 2 id. 164 ; Buxton v. Baughan, 6 C.
& P. 674.

But, in order to protect the bailee, the doubt as to the title must be
reasonable. Fillott v. Wilkinson, 3 H. & C. 345. "Whether, if the
bailor had no title, the bailee is thus protected against the real owner
may, perhaps, be questionable. But the doctrine announced in Carrol
V. Mix, 51 Barb. 212, would seem to be broad enough to cover such a
condition. '^qq,,2\.'&o, Alexander v. Southey, 5 B. & Aid. 247; Mires y.
Solehay, 2 Mod. 245, where it was held that a servant who had received
goods from his master was justified in not delivering them up until he had
had an opportunity of ascertaining the master's wishes in the matter.
But if, after having had such opportunity, he relies upon the master's title
he is liable for a conversion of the goods, if such title is not good. Bee v.
Robinson, 25 L. J. (C. P.) 249. Trover will not lie against a person who
has a lien on the property sued for, unless the plaintiff first pays or offers
to pay the amount of such lien. Benoir v. Paquin, 40 Vt. 199. Thus,
a warehouseman, a carrier, a mechanic, etc., may retain goods in his pos-
session until his charges for storage, freight, or repairs are paid, and,
until they are paid or tendered to him, trover will not lie against him
for the goods, unless he has waived his lien, or puts his refusal to de-
liver up the goods upon some other ground. Murray v. Bosevelt,
Anth. (N. P.) 138 ; Scarf e v. Morgan, 4 M. & W. 281 ; Kerford v.
Mondel, 28 L. J. Exch. 303 ; Weeks v. Goode, 6 C. B. (N, S.) 367 ;
Caunce v. Stanton, 7 M. & Gr. 903 ; Thompson v. Bose, 16 Conn.
71. But if a person having a right of lien sells the goods without legal
process, he thereby puts an end to the lien, and becomes liable in trover
for their full value. White v. Spettigue, 13 M. & W. 603. But while
an unauthorized use of a pledge, during the currency of the loan, does



TEOVER. 145

not of itself render the pledgee liable in trover {IlalUday v. Ilolgate,
L. R., 3 Excli, 299)j the rule is otherwise as to goods held under a lien
raised by the law, and an unauthorized use of the property by the lienor
is a conversion thereof. Property in the hands of a public officer for
any pui*pose cannot be recovered for in trover, if there is any reasona-
ble excuse for its detention by him. Thus, a pound-keeper is not
liable in trover for not delivering up a beast lawfully impounded, until
his charges are paid, nor is an individual who takes up an estray liable
in trover therefor, until the expense, of its keep are paid (Buller's Is^.
P. 45) ; nor is an officer, to whom goods are delivered which had been
left at sea, liable in trover therefor because he refuses to deliver them
until he can ascertain whether the salvage was due, Clark v. Cham-
herlain, 2 M. & W. 78. But if, by law, no salvage could be charged
the rule would be otherwise. Id. The same rule applies as to prop-
erty in the hands of an individual. Thus, if A leaves with B a
horse to be depastured, and C demands the horse from B, claiming it
as his property, B cannot be made chargeable in trover therefor, simply
because he refuses to deliver it up to C upon demand. He is entitled
to a reasonable time to ascertain whether he ought to deliver or retain
it. Thus, A received goods from B, and had every reason to suppose
that B owned them, though he did not positively know the fact. M.
claimed and demanded the goods of A, who, while he did not claim the
goods as his own, or make any claim thereto, stated the manner in which
he became possessed of the goods, and how he held them, and that he
wished the order of his father, before delivering them to M. The com't
held that this did not amount to such a conversion of the goods as made
him amenable therefor in trover. See, also, Pillott v. Wilkinson, 3 II.
& C. 345 ; European, etc., R. M. Co. v. jR. M. St. P. Co., 4 Kay & J.
676 ; Doiod v. Wadsworth, 2Dev. (N. C.) 130 ; BlankensMp v. Berry,
28 Tex. 448 ; BeckUy v. Howard, 2 Brev. (S. C.) 94. But if, after a
reasonable time has elapsed, he refuses to deliver the pi-operty, he is
liable to the owner in trover. Sargent v. Gile, 8 N. H. 325. But
if, under such circumstances, the defendant required the owner to do
some act that he was not bound to do, or that, under the circumstances,
was unreasonable, he would be liable. Thus, A put a phaeton into the
hands of M. for him to paint it, and paid M. for the work. M. did not
paint it, but put it on B's premises, where it remained three months.
A demanded the phaeton from B, who refused to deUver it to him until
he produced M., or his order therefor. The com-t held that this amounted
to a conversion, Alderson, B, saying, " that was a thing he had no
right to insist upon, before he delivered to a person a thing that was
that person's property." But if the defendant had simply put his re-
YoL. YL— 19



14G TROVER.

fusal upon the ground tliat lie wanted to ascertain wliether he would
be justified in delivering tlic property to A, the rule would have been
otherwise, unless he unreasonably delayed. Solomons v. Dawes, 1
Es}). 82. Trover lies against a corporation for property converted 1>^''
an ao-ent or person having authority to act for it in that behalf {Dun-
can V. Surrey Canal, 3 Stark. 50) ; and, generally, against any person
who converts the property of another without lawful or justifiable ex-
cuse {Mead v. Thomjjson, 78 111. G2 ; Norman v, Rogers, 29 Ark. 365 ;
BertJiolfY. Qumlan, 68 III. 297 ; OtisfieU v. Mayherry, 63 Me. 197) ;
but never against a person who holds it by lawful authority, or under
justifiable circumstances {Glaze v, McMillan, 7 Port. [Ala.] 279 ; Tray-
'lor V. Ilorrall, 4 Blackf. 317 ; Fairbanks v. Phelps, 22 Pick. 535 ;
Canfield v. Monger, 12 Johns. 347 ; Brewer v. Sparrow, 7 B. cfe C. 310 ;
Foidds V. Willoughhy, 8 M. & W. 540); nor, unless he has converted it
to his own use or that of another. See ^06'^, p. 163, Art. 2, as to wdiat
amounts to a conversion.

In order to recover against several persons for a joint conversion the
evidence must be such as to establish a joint concurrence therein, and
if separate acts of conversion, only, are shown, the action cannot be
maintained against the defendants jointly, but a separate verdict may
be taken against one, or against those who are shown to have jointly
converted the property. Nicoll v. Olennie, 1 M. & S. 589. Thus, if
a servant in the discharge of his duty, and within its scope, converts
the property of a third person for the benefit of his master, whether
with or without instructions from him, both he and the master are
jointly liable for the conversion. Greenway v. Fisher, 1 C. & P. 190 ;
Fwhanlc v. Nutting, 7 C. B. 797. So the husband and wife may be
joined in an action for a conversion by the wife alone. Keyworth v.
Hill, 3 B. & Aid. 685 ; Catterall v. Kenyon, 3 Q. B. 310. So a car-
rier is jointly liable with his servant for goods delivered to the wrong
person by the servant {Ewbanli v. Nutting, 7 C. B. 797) ; and a firm,
are jointly liable for a conversion by one partner, of goods that are
within the line of the firm business, and for its benefit, and which were
converted by the concurrence of his copartners express or implied.
Bane v. Dettrich, 52 111. 19 ; Loclie v. Stearns, 1 Mete. (Mass.) 560,
564; State v. Neal, 27 N. H. 131. In order to constitute a joint con-
version, the acts of the several defendants need not be shown to be
contemporaneous. It is enough if their acts and purposes all tend to
the same end. Cram v. Thissell, 35 Me. 86.

In Banfield v. Wliipple, 10 Allen, 27, the plaintift' let a horse to A,
• and by his directions delivered it to B, and the horse was driven to
death by B, with the assent and aid of A, who was dri^dng another horse



TROYEE." 147

near by, and the court held that A and B were jointly liable in trover
for the horse. So where a person is present, aiding and assisting in a
tortious taking of chattels, although he is merely acting as the agent
of another, he is jointly liable with the others for a conversion. JIc-
Pai'tland v. Read, 11 Allen, 231. Where the plaintiff's daughter has
his team in charge and she requests the defendant to drive her to a
f ifneral, and while doing so, the team take fright, run away, destroy
the vehicle and kill themselves, the defendant is not liable in trover,
as he was a mere passenger, and the possession and control of the prop-
erty was in the daughter. Bennett v. Gillette, 3 Minn. 423.

§ 6. Perfecting the right of action. The mere fact that a person
is the owner of property in the possession of a tliird person, does not of
itself necessarily entitle him to maintain an action of trover therefor,
he must also show that he is entitled to the hnmediate possession
thereof. " In order to maintain the action " says Park, C. J., in
Ay res v. French, 41 Conn. 150, " the plaintiff must have the immedi-
ate right to the property. His right of recovery depends upon his
right to the property in jpresenti, and if he has no such right, he can-
not recover." Therefore, if the property of A is lawfully in B's pos-
session, B has the right to hold the same as against all the world, until
A has demanded the same of him, and A can maintain no action against
B therefor, until he has demanded the same of him, and thus termi-
nated B's right of possession {Sherry v. Pickens, 10 Ind. 3Y5 ; Gur-
ney \. Kenny, 2 E. D. Smith [N. Y.], 132; Zimmerman \. Fair-
lanks, 35 Wis. 368 ; Philpot v. Kelley, 3 Ad. & El. 106 ; Fairbanks
V. Phelps, 22 Pick. 535), unless B has abused his right of possession
{Norton v. Kidder, 54 Me. 189 ; Fisher v. Kyle, 27 Mich. 454 ; John-
son V. Whittemore, 27 id. 463), or has actually converted the property
to his own use. Korsley \. Branch, 1 Humph. 199; Kronschnahle
V. Knoblauch, 21 Minn. 56 ; Maguyer v. Hawthorn, 2 Harr. (2 Del.)
71.

If the defendant has a lien of any kind upon the property, Avhich
operates as a valid claim thereon, whether it arises under contract or
by operation of law, the owner cannot maintain trover against him
therefor, until he has paid or offered to pay the amount due under the
lien {Picquet v. McKay, 2 Blackf. 465 ; Fdgerly v. Emerson, 23 !N^.
H. 555), or unless the lien is waived {Hodgson v. Woodliouse, 1 Cranch
[C. C], 549) ; or unless it has been lost by reason of the defendant hav-
ing set up another or different claim to the goods {Boardman v. Sill,
1 Camp. 410 ; Murray v. Posevelt, Anth. 138) ; or by an actual con-
version of the goods to his own use, either by a sale thereof, or by using
them for his own benefit, or permitting others to do so.



148 TROYEE.

If a purchaser of goods seeks to recover for tlicm in trover against the
vendor, ho must, before action brouglit, pay or oti'er to pay the price
agreed upon {Bloxam v. Saunders^ 4 B. & C. 941) ; and this ecems to
be the rule, even where the sale was upon credit, as in such a case the
vendee must take his remedy under the contract {Martindale v. Smith,
1 Q. B. 389) ; and it seems that a buyer of an article that is to be made
for him, acquires no such title thereto that he can maintain trover
against the vendor therefor, even though he has paid the price in ad-
vance. Sutton V. Camjyhell, 2 N. Y. (T. & C.) 595 ; Andrews v.
Durant, 1 Kern. 35 ; People, etc. v. Com. of Taxes, etc., 58 N. Y. (13
Sick.) 242; 21ucklow v. Mongles, 1 Taunt. 318; Woods v. Russell, 5
B. & Aid. 942. The rule is, that the vendee acquires no title to the
articles themselves, until they are finished and delivered to him.
Thus in MucMoio v. Mangles, 1 Taunt. 318, one Pocock entered into
a contract with a barge builder, to build him a barge, and during the
progress of the work he made advances to the builder until, long be-
fore the barge was completed, he had paid the entire sum due there-
for. When the barge was nearly finished, the builder painted Pocock's
name on the stern. Two days after the barge w^as completed, the
barge was taken by the defendant upon an execution against the
builder, Pocock in the meantime having become bankrupt, in an action
of trover by the assignee against the officer making the levy, it was
held that Pocock had no title to the barge until its completion and de-
livery to him, and, consequently, that the action would not lie. West
Jersey R. R. Co. v. Trenton Car Co., 3 Yroom, 517.

But if goods are sold upon credit, and left with the vendor, and he
sells them to another hefore the term of credit has expired, he is liable
to the purchaser in trover, for the actual damage he has sustained, even
though he does not tender the price of the goods, Chinery v, Viall, 5
H, & N. 288, And it has been held that, even though the purchaser
is in default, and has not paid or offered to pay within the time agreed
upon, but tendered the money hefore there had heen a conversion of
the goods hy the vendor, trover lies in his favor for the goods, 3£ar-
tindale v. Smith, 1 Q. B, 389.

Where property has been leased to a person for a fixed time, and the
lessor permits him to retain the property after the time has expired, he
cannot maintain trover for the property until he has first withdrawn
his assent to its retention by the lessee and demanded the property.
Thompson v. Moesta, 27 Mich. 182. And where property is leased at
will with liberty on the part of the lessee to purchase at a certain price,
if he elects to do so, the lessor cannot maintain trover against a person
who wrongfully took it out of the lessee's possession until after he has



. - TROYEE. 149

terminated the lease by a demand of the property or tlie purchase-
money. Fairbofrik v. Phelps, 23 Pick. 535.

"Where goods have been fraudulently exchanged, the person defrauded
cannot maintain trover until he has first put, or ofEered to put, the
other party in statu quo, by a return of the property -{Kirnhall v.
Cunningham, 4 Mass. 502).; and generally it may be said that, in order
to maintain the action, the plaintiff must do every thing that is neces-
sary to remove any claim, legal or equitable, that the defendant may have
upon the property, and take all the steps necessary to put him in the
position of a wrong-doer, holding the property without color of right.
In order that it may be understood, when a lien exists upon property,
that must be removed before trover will lie, it may not be amiss to
state here, when and how a lien arises. When property is delivered to
another to be, by his skill and labor, or by the addition thereto of
property of his own, increased in value, he has a lien on^ the article
both for his labor and materials, whether the price was agreed upon or
not, unless there is a contract inconsistent with such hen. Gregory v.
StryTcer, 2 Denio, 628 ; Ham,na v. Phelps, 7 Ind. 21 ; Morgan v.
Congdon, 4 IST. Y. (4 Comst.) 552 ; Partridge v. Dartmouth College,
5 N. H. 286 ; McFarland v. Wheeler, 26 Wend. 467 ; FranUin v.
Hosier, 4 B. & Aid. 341 ; Williams v. Allsup, 10 C. & B. (X. S.)
41 Y ; Blake v. Nicholson, 3 M. & S. 167. Thus, a mechanic of any
kind has a lien upon all personal property for manufacture or repairs,
while it remains in his possession {Ex parte ShanJc, 1 Atk. 234;
FranUin v. Hosier, 4 B. & Aid. 341 ; Blake v. Nicholson, 3 M. & S.
167 ; Clark v. HaU, 34 Conn. 398 ; Moore v. Hitchcock, 4 Wend. 292;
Bevan v. Waters, 3 C. & P. 520 ; Bleaden v. Hancock, M. & M. 465) ;
as a shipwright for repairs on a ship {Ex parte Shank, 1 Atk. 234) ; a
printer to whom paper had been delivered to be printed upon {Blake
V. Nicholson, 3 M. & S. 167) ; a stereotype printer who receives plates
to print from {Bleaden v. Hancock, M. & M. 465) ; a miller who
grinds grain at his mill {Chase v. Westmore, 5 M. & S. 180); a car-
riage maker for repairs upon a carriage, a jeweller for repairs upon a
watch or jewelry, and generally, any person who bestows labor upon
the property of another, has a lien upon the property upon which the
labor was bestowed, for the reasonable price thereof {Mount v. Wil-
lianis, 11 Wend. 77; Jay^vis v. Rogers, 15 Mass. 389; Urquhart v.
Mclver, 4 Johns. 114; McFarland v. Wheeler, 26 Wend. 467 ; Allen
V. Spencer, 1 Edm. [jST. Y.] 117) ; unless there was an agreement to
give credit {Clark v. Hale, 34 Conn. 398) ; or there is a special agree-
ment inconsistent therewith. Bailey v. Adams, 14 Wend. 201 ; Trus
V. Pirsson, 1 Hilt. (N. Y.) 292 ; Fieldings v. Mills, 2 Bosw. 489. This



150 TROYER. > .

lien, however, only extends to the identical articles upon which the
labor was bestowed, and does not extend to other articles of the same
kind in the possession of the lienor belonging to the licnee, upon which



Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) → online text (page 30 of 109)