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On the other hand, where A had a piano in her house and gave it to B, who was at the time living in A's house, and B used the piano, both before and after the gift, but there was no change in possession, it was held not to be a valid gift (24). Here there was nothing that could be construed as a delivery. It would seem that some symbolical act of delivery would be necessary. The court distinguished the last from a case where A pointed out to B certain cattle of A's which were running at large and B agreed to take them in payment of a sum due him from A, holding that this gave B dominion over the cattle and made a delivery (25).

A gift by parol is a present transaction and if the title is passed at all it is passed at once, so, where a father delivered a slave to his son residing with him and called upon persons present to take notice that he gave that slave to the son, but, at the same time, said that he claimed an estate in the slave for his own life, it was held that nothing passed to the son by such a parol gift (26).

§ 48. Gift by deed under seal. It is generally held that a gift by deed under seal is good without delivery of the chattel. Where, however, A made an instrument in writing, but not under seal, reciting that he gave certain enumerated chattels to several donees respectively, saving to himself the use and benefit during his natural life, it was held not to be a good gift because not by deed under seal; that a deed effectuatus the gift not because the delivery of the deed is a symbolical delivery of the

(24) Willey v. Backus, 52 Ia. 401.
(25) Brown v. Wade, 42 Ia. 647.
(26) Anderson v. Thompson, 11 Leigh (Va.) 439.

property, but rather upon the principle of estoppel; the maker of the deed is estopped thereby from asserting that he has not granted thereby to the donee a power of control and dominion over the property conveyed by the deed. In the present case it could not have been good as a symbolical delivery of the property, if that were the principle, because by the terms of the gift no immediate delivery of the property was intended, but the donor was to retain the possession and control of it so long as he lived (27).

SECTION 4. By OTHER METHODS.

§ 49. Other methods. The transfer of the title to personal property by sale, mortgage, gifts causa mortis, will, descent, bankruptcy, and so forth, are treated in the articles on Sales, Mortgages, Wills, and Bankruptcy, elsewhere in this work.

(27) Connor v. Trawick's Admr., 37 Ala. 289.

CHAPTER VII.

COMMON LAW LIENS.

SECTION 1. NATURE AND ACQUISITION OF LIENS. 8 50. Lien defined. A lien at common law is a right to retain possession of property belonging to another until a claim of the party in possession against the owner is satisfied (1). A lien may be given by contract, express or implied, or it may be given by the common law without any agreement. It is the latter class of liens that we consider in this chapter,

$ 51. Bailment defined. The term bailment frequently occurs in the cases relating to liens. It may be shortly defined as the holding possession of another's personal property in trust for some specific purpose (2). The bailee is the one who has possession. The bailor is he who has given the bailee possession.

$ 52. Lien for labor in improving chattel. Plaintiff had possession of a race horse belonging to A, which plaintiff had trained. While in plaintiff's possession the horse was sold to the defendant, and plaintiff gave up possesssion of the horse to defendant under an agreement by defendant to pay for the training in consideration of the abandonment by plaintiff of his lien. In an action to recover the cost of the training, the defendant contended

(1) Lawson on Bailments, $ 26. (2) Lawson on Bailments, $ 5.

that there had been no lien and that plaintiff's detention of the horse was altogether wrongful, but the court said: 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(3). But where the plaintiff delivered a horse to the defendant to be stabled and in an action of detinue brought by the plaintiff for the horse the defendant claimed the right to hold the horse by virtue of a lien for his charges, it was held that the defendant had no lien because he had done nothing for the benefit and improvement of the horse (4).

These two cases show that the test of the existence of the lien is whether the bailee has done something to the chattel to improve it by his skill and labor.

So, where the defendant pastured cows for the plaintiff, who came and took them and the defendant retook them, for which the plaintiff brought trespass, and the defendant justified his act by virtue of a lien for pasturing; it was held for the plaintiff that there was no lien, on the ground that no additional value was conferred on the article by the skill of the bailee (5). And it is the law that an agister has no lien unless allowed one by statute (6).

(3) Bevan v. Waters, Mood. & M. 235.
(4) Judson v. Etheridge, 1 Cr. & M. 743.
(5) Jackson v. Cummings, 5 M. & W. 342.

(6) The refusal to allow an agister a lien seems to have arisen through a misunderstanding of the law. The question of an agister's

§ 53. Express or implied contract for services. In Chase v. Westmore (7) the question of the effect upon the lien of an express agreement as to compensation for the work done upon the property was considered. The defendants, who were millers, had ground grain for certain bankrupts, of whom the plaintiffs were assignees, on an express agreement as to the price. The grinding was all done under one bargain. No time or mode of payment was set, but there was an express agreement that so much per load should be paid. The grain was ground in various parcels at different times. At the time of the bankruptcy the defendants had a portion of the grain on hand, and claimed to hold it on a lien for the value of the whole grinding. In trover, it was held for the defendants; that they had the lien claimed. The principal question made in the case was whether an express agreement as to the price destroys the right to a common law lien for the value of work expended on an article, and the case established the law that such an agreement does not destroy the right to the lien and it exists whether the contract is express or implied (8).

lien was first raised in Chapman v. Allen, Cro. Car, 271, in 1632. At that time a lien was not allowed when there was an express contract for remuneration, and, as in Chapman v. Allen there was an express contract, the lien was not allowed in that case. Later, the lien was allowed in cases of express contract, and in Jackson v. Cummings the judges seem not to have understood the real ground of the decision in Chapman v. Allen, but followed that case and held that there was no lien because the bailee did not improve the chattel. See 2 Harvard Law Review, p. 61.

(7) 5 M. & S. 180.

(8) The true origin of the common law lien seems to have been that at the early period before there was any action allowed on an

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