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the inkeeper knows that fact, this doctrine is undoubtedly correct.

§ 63. Carrier's lien. If A, being in possession of the goods of B, wrongfully and without the consent of B, express or implied, ships them by a common carrier, who acts in good faith, supposing A to be the owner of the goods or to have authority to ship them, and then B demands the goods, there is a question whether the carrier has a lien on the goods for the freight charges. In Robinson v. Baker (29) it was held that on the general principle that no one can give a better title to property than he has, and that a carrier is subject to the same obligation to inform himself of the title of those with whom he deals that are other persons and because he can protect himself by demanding payment of the freight in advance, the carrier does not in such cases have a lien. The case represents the weight of American authority.



§ 64. A lien ordinarily gives only a right to hold the property. In an action of trover for three horses, the defendant pleaded that he was an innkeeper, that the plaintiff had put up his horses at defendant's inn and there was due him for their keep £36 which was more than they were worth and that he detained and sold them. Judgment was given for the plaintiff on the ground that

(29) 5 Cush. 137.

the defendant had no power to sell the horses (30). So, where the plaintiff's horse, wagonette and harness were brought to defendant's inn by a guest who did not own them, and the guest departed leaving the property and owing a bill. The defendant sold the horse and refused to give up the other property to the plaintiff. In trover for the conversion of all the property it was held for the defendant as to all the property except the horse. He had a right to hold it under his innkeeper's lien. But as to the horse, it was held for the plaintiff. The sale of the horse destroyed the lien upon it and was a conversion (31).

$ 65. Lien cannot be transferred. A broker and factor purchased goods in a warehouse in his own name for his principal, the plaintiff, who was indebted to the broker for a general balance of account, for which the broker had a lien. The broker, for a valuable consideration, assigned the goods by way of pledge to the defendant who claimed a lien in the place of the broker. In trover by the principal, the owner of the goods, it was held for the plaintiff. The defendant did not have the lien claimed. The court said: “Nothing could be clearer than that liens were personal, and could not be transferred to any third person by any tortious pledge of the


(30) Jones v. Pearle, 1 Stra. 557. Before implied assumpsit was allowed, an innkeeper had a right to sell a horse left with him as soon as it had eaten its value, in cases where there was no express contract, because, having no right of action, the innkeeper would find the horse only a source of expense. The Hostler's Case, Yelv. 66, 67 (1605). But when the implied assumpsit was allowed, the reason for the right of sale no longer existing, the right disappeared.

(31) Mulliner v. Florence, 3 Q. B. Div. 484.

principal's goods” (32). When the broker let the goods go out of his possession the lien was destroyed, and the owner of the goods was entitled to possession of them. “The right of lien has never been carried further than claiming it” while the goods continue in the possession of the party (33).

The bailee could, however, place the goods in the hands of his servant to hold for him, for the possession would still be constructively in the bailee, and it seems he could put them in a warehouse in his own name, for he would retain control (34).

§ 66. Waiver of lien. In Jacobs v. Latour (35) the defendant had a horse in his possession that he had been training. He brought an action against the owner of the horse for the charges, had the horse taken and sold on the execution, and bought it in. A commission of bankruptcy was issued against the owner of the horse upon an act of bankruptcy committed before the levy and sale. The assignee in bankruptcy brought an action of trover for the horse. The horse had never been out of the possession of the defendant. It was held for the plaintiff, that when the defendant allowed the horse to be taken and sold on the execution without setting up his lien, the lien was lost. As the execution sale was not good against the

(32) M'Combie v. Davies, 7 East 5. (33) Sweet v. Pym, 1 East 4.

(34) It is to be noted that while a factor cannot pledge goods so as to bind his principal, from the nature of his employment he has implied power to sell and bind his principal by the sale. See 2 Kent Comm. 622.

(35) 5 Bing. 130.


bankruptcy commission, the plaintiff could not hold the horse by virtue of it and had no right to do so on either ground. Here the reason for the loss of the lien was that the sheriff, in law, must have had possession in order to make the sale, and when the defendant gave up possession to the sheriff he lost his lien, and his later holding must have been by virtue of the title derived from the sale.

Where the plaintiff had possession of certain calf skins on which he had a lien for work done upon them as a currier and purchased them from the owner who soon thereafter became an insolvent, the defendant took possession of the skins under a warrant issued to him as messenger in insolvency proceedings. The plaintiff, after his purchase, had never claimed to hold by any other title than by the sale to him and gave the defendant no notice of the lien when the property was taken. In an action for the taking, it was held that the sale was good between the parties but void as to creditors; that the plaintiff lost his lien by claiming to hold as owner and by not setting up his lien when defendant took the property (36). Here there was not even a technical change of possession, such as there was in Jacobs v. Latour, but the plaintiff was claiming to hold under a title other than that of his lien. He did not assert his lien and never claimed to hold by any other title than that derived from the purchase. Clearly, therefore, the lien was waived.

In White v. Gainer (37) the defendant had a lien for

(36) Mexal v. Dearborn, 12 Gray 336.
(37) 2 Bing. 23.

work on some cloth belonging to a bankrupt. The latter sold it to the defendant, which sale was void because made by a bankrupt. When the assignees demanded the cloth the defendant refused to give it up, saying: “He might as well give up every transaction of his life.” But he made no demand. In trover by the assignees, it was held that the remark did not constitute a waiver of the lien and the defendant succeeded in the action. The court interpreted the remark to mean that the defendant was claiming to hold under his lien and not relying on the purchase, and they said that if the defendant had relied on the purchase they would have held it to be a waiver. It may be open to question whether that interpretation was correct and whether it should not have been left to the jury to say how the defendant intended to hold the cloth; but there can be no doubt of the correctness of the principle applied. There had been no change of possession and as the lien was asserted (as the language was construed) there was no reason for holding that the sale to him caused him to lose his lien. It appears, therefore, that the distinction between Mexal v. Dearborn (38) and this case is that in the former the bailee relied on his

purchase and did not hold under or assert his lien and that if he had done so the lien would have been preserved.

§ 67. Waiver excusing tender. In an action of trover for some brandy which lay in the defendant's cellars, it appeared that certain warehouse rent was due to the defendant on account of the brandy, and that when the brandy was demanded, the defendant had refused to de

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