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liver it up, saying it was his own property. The court held that as the brandy had been detained on a different ground, and as no demand of warehouse rent had been made, the defendant must be taken to have waived his lien, if he had one, and the plaintiff could recover without tendering the amount of the charges due (39). Here the bailee claimed rights in the property totally inconsistent with the lien. When the demand was made his reply did not inform the owner of the nature of the claim against the property or what he should tender in order to reclaim it. The lien was, therefore, properly held to have been waived. And where the plaintiff delivered to the defendants a quantity of hogs' heads to be rendered into lard, and the defendants, after delivering part of the lard, “declined to deliver any more lard;" the plaintiff demanded the lard but made no tender. It was held for the plaintiff in an action of assumpsit for failure to perform the contract, the court saying: “An unqualified refusal upon a demand duly made is evidence of a conversion because it involves a denial of any title whatever in the person who makes the demand;" and that the plaintiff had a right to infer from the defendants' answer to his demand that they would deliver to him no more lard unless compelled to do so by an action at law, and also the right to infer that a tender to the defendants for their services would be unavailing (40).

In Scarfe v. Morgan (41) the defendant had possession

(39) Boardman v. Sill, Camp. 410, note.
(40) Hanna v. Phelps, 7 Ind. 21.
(41) 4 M. & W. 270.

of a mare sent to be covered by his stallion, and refused to deliver her to the owner, claiming a lien for the charge for the particular occasion, and, also, for charges for covering other mares and for poor rates. The plaintiff, without making any tender at all brought trover. It was held that the defendant had a specific lien for the services of the stallion on the particular occasion and did not lose it so as to excuse a tender on the part of the plaintiff by reason of claiming in addition to hold the mare for other charges for which he did not have a lien. The theory of the court was that the larger claim included the smaller and that in claiming both he did not mean to excuse a tender of the sum for which the lien actually existed. It was observed that if a tender had been made the defend. ant might have been led to reflect whether he had a lien for the additional sums and he might have accepted the tender. If the conduct of the bailee did not, in fact, indicate that a tender of the smaller sum would be useless, the case is right.

Kerford v. Mondel (42) was a case in which the owner of a bark carried freight on which he claimed a lien for freight and dead freight, not being entitled to the latter. He refused to deliver the goods, stating that he had called a meeting of the consignees of the goods to decide the question about dead freight, and that he would communicate notice of the meeting to the plaintiff. The court, being authorized to draw inferences of fact, said: “We conclude that the defendant here, in effect, said, 'I claim these goods in respect of the lien for two different

(42) 28 L. J. (N. S.) 303.

items; you need not trouble yourself to tender one of them, because if you do so, I shall not deliver them up; I shall keep them for the other.' If that is so, it is a reasonable thing to show that he dispenses with what he owned would be a nugatory tender of the sum he was entitled to receive." The distinction between this and the last case must be based upon the interpretation of the defendant's conduct in Kerford v. Mondel as more clearly indicating that a tender of the one sum would be useless than did that of the bailee in Scarfe v. Morgan. And, in fact, the bailee's statement, in Kerford v. Mondel, in regard to the matter of the dead freight appears to be an absolute refusal to deliver up the goods until that question was settled.

68. Lien of livery stable keeper. Unless also an innkeeper and receiving a horse in his capacity as such for a guest, a livery stable keeper would not at common law have a lien on a horse boarded with him. But statutes giving such liens are not uncommon.

In Caldwell v. Tutt (43) the livery stable keeper was by statute given a lien the same as the innkeeper's lien at common law. A had boarded his horse with livery stable keepers, the plaintiffs. A was in the habit of taking the horse occasionally from the stable for a ride, by and with the consent of the owners of the stable. While A was riding the horse on one of these occasions, the horse was levied upon by the defendant, a constable, by virtue of an execution against A. On the question whether the plaintiffs had a lien superior to the execution levy, it was

(43) 10 Lea (Tenn.) 258.

held that the custom of allowing the horse to be taken temporarily from the stable, in accordance with the terms of the contract, did not destroy the lien of the stable keeper, and that the rights of the latter were superior to the claim of the execution creditor. Ordinarily when the bailee parts with possession, he loses his lien. The decision is based upon the peculiar nature of the contract of bailment which contemplates the temporary relinquishment of the possession of the property by the bailee, and the court held the preservation of the lien, under the circumstances, to be within the spirit of the rule recognized by the law.

In Vinal v. Spofford (44) a horse was boarded at defendant's livery stable. While temporarily absent therefrom, in use by the owner, it was sold to plaintiff and later returned to the stable without any notice being given to defendant of the change in ownership. Later, the bill for the keep of the horse not being paid, the defendant caused the horse to be seized, when it was absent from the stable in use, and brought to the stable. In replevin it was held that defendant lost his lien by the sale, and even if he had a lien for the keeping of the horse after the sale, or whatever might be the rule when the animal was voluntarily restored to his possession, he lost the lien by allowing the plaintiff to take possession and could not revive his right by seizing the horse. The court, thus, made no distinction between livery stable keepers and other bailees and applied the ordinary rule prevailing in the case of common law liens.

(44) 139 Mass. 126.



69. Nature of a pledge. A pledge or pawn is the bailment of a chattel as security for the payment of some debt or the performance of some engagement. The bailee has a lien on the pledged property, given him by the contract (1). Upon payment of the debt or performance of the engagement for which the pledge was made he is to return the identical property to the pledgor. If the pledgor makes default in payment or performance, the pledgee's remedy is to sell the pledged property, and the contract of pledge gives the pledgee power to do so; wherein the pledgee differs from the bailee under a common law lien. The usual practice is to sell at public auction after notice. If the sale is made in such manner, honestly and fairly, the pledgee is not liable for a loss that may ensue to the owner from the property realizing less than its estimated value. If he sells without notice, it seems he would be charged with the full value of the property (2). Or, the pledgee may foreclose his lien by a bill in equity. Any surplus realized upon the sale is to be paid over to the pledgor.

(1) For the distinction between a pledge and a chattel mortgage, see Mortgages, $ 62, in Volume VI of this work. (2) Stearns v. Marsh, 4 Den. 227.

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