complete the bailment, could recover nothing. The bailee, having made such a contract with full knowledge, could not complain; nor does such an agreement contravene a sound public policy. This would afford the bailor a desired method of securing himself against any abandonment of the bailment before it had been perfectly performed.

EXPENSES OF THE BAILMENT

63. The bailee must bear the expenses ordinarily incident to the execution of the bailment. Extraordinary expenses fall on the bailor.

The rules here are in their practical application similar to those obtaining in locatio rei, or the hired use of chattels.

In bailment for hired services, it is a fair prima facie presumption that the parties intended the expenses ordinarily incidental to the execution of the bailment contract to be borne by the bailee, who is presumed to have fixed his compensation high enough to cover these expenses.**

This presumption, though, would hardly apply in the case of extraordinary expenses incurred reasonably in some unforeseen or extreme emergency, particularly when made for the preservation of the bailed goods. These expenses, when not due to the bailee's fault, should be borne by the bailor.**

THE LIEN OF THE BAILEE ON THE BAILED CHATTELS 64. The bailee performing services about a chattel has a lien on such chattel to secure the payment of his proper compensation.

Lien

It may safely be laid down as a general rule that every bailee for hire who performs services about the goods of another has a lien on such goods to secure his proper compensation, and he can

45 Story, Bailm. §§ 425, 426, 441; Schouler, Bailm. (2d Ed.) § 114; 2 Kent, Comm. 590; Whitlock v. Heard, 13 Ala. 776, 48 Am. Dec. 73; Menetone v. Athawes, 3 Burrows (Eng.) 1592.

46 Schouler, Bailm. (2d Ed.) § 114; Story, Bailm. § 426c. If it reasonably can be done, it would seem that the bailee should secure the sanction of the bailor to such expenditure. See Small v. Robinson, 69 Me. 425, 31 Am. Rep. 299. The expenditure must be a proper one in any case to be recoverable by the bailee. See Enos v. Cole, 53 Wis. 235, 10 N. W. 377.

hold the goods until this compensation is paid." Of common-law liens, this is, from the viewpoint of commercial policy, among the most important, as it is, from the standpoint of historical jurisprudence, among the most interesting.

The right of lien at common law seems originally to have been confined to those persons who, from the nature of their occupation, were under a legal obligation to receive the goods of others.** Such, for example, were common carriers and innkeepers. This doctrine was next extended to include cases in which the chattel had acquired additional value by the labor and skill of an artisan.** By further extensions it has come to include practically every case in which a bailee for hire performs services about the chattel.5°

47 Hensel v. Noble, 95 Pa. 345, 40 Am. Rep. 659; Pine Bluff Iron Works v. Boling & Bro., 75 Ark. 469, 88 S. W. 306; Drummond Carriage Co. v. Mills, 54 Neb. 417, 74 N. W. 966, 40 L. R. A. 761, 69 Am. St. Rep. 719; Holderman v. Manier, 104 Ind. 118, 3 N. E. 811; Caroway v. Cochran, 71 W. Va. 698, 77 S. E. 278; Pacific Aviation Co. v. Wells Fargo & Co., 64 Or. 530, 128 Pac. 438; Bass v. Upton, 1 Minn. 408 (Gil. 292); Low v. Martin, 18 Ill. 286; STEINMAN v. WILKINS, 7 Watts & S. (Pa.) 466, 42 Am. Dec. 254, Dobie Cas. Bailments and Carriers, 93. Wharfingers: Brookman v. Hamill, 43 N. Y. 554, 3 Am. Rep. 731; Ex parte Lewis, 2 Gall. 483, Fed. Cas. No. 8,310; Holderness v. Collinson, 7 Barn. & C. (Eng.) 212; Lenckhart v. Cooper, 3 Bing. N. C. (Eng.) 99; Dresser v. Bosanquet, 4 Best & S. (Eng.) 460. See Cowper v. Andrews, Hob. (Eng.) 39, 41a; Case of an Hostler, Yel. (Eng.) 67. And see the learned and valuable note of Mr. Justice Metcalf to this case, in his edition of Yelverton (page 67a), and the authorities therein collected and commented upon; Green v. Farmer, 4 Burrows (Eng.) 2214; Close v. Waterhouse, 6 East (Eng.) 523, note 2; 2 Kent, Comm. (5th Ed.) 635; Grinnell v. Cook, 3 Hill (N. Y.) 485, 491, 38 Am. Dec. 663; Oakes v. Moore, 24 Me. 214, 41 Am. Dec. 379; WILSON v. MARTIN, 40 N. H. 88, Dobie Cas. Bailments and Carriers, 85. "Whenever a party has expended labor and skill in the improvement of a chattel bailed to him, he has a lien upon it." Bevan v. Waters, Moody & M. (Eng.) 235; Scarfe v. Morgan, 4 Mees. & W. (Eng.) 270, 278; Harris v. Woodruff, 124 Mass. 205, 26 Am. Rep. 658; Morgan v. Congdon, 4 N. Y. 552; Mathias v. Sellers, 86 Pa. 486; Farrington v. Meek, 30 Mo. 578, 77 Am. Dec. 627; McIntyre v. Carver, 2 Watts & S. (Pa.) 392, 37 Am. Dec. 519.

48 WILSON v. MARTIN, 40 N. H. 88, Dobie Cas. Bailments and Carriers, 85.

49 See the following English cases: Jackson v. Cummins, 5 Mees. & W. 342, 348; Scarfe v. Morgan, 4 Mees. & W. 270; Bevan v. Waters, Moody & W. 235; Id., 3 Car. & P. 520; Forth v. Simpson, 13 Q. B. 680. See, also, Story, Bailm. (9th Ed.) § 453a; Harris v. Woodruff, 124 Mass. 205, 26 Am. Rep. 658; STEINMAN v. WILKINS, 7 Watts & S. (Pa.) 466, 42 Am. Dec. 254, Dobie Cas. Bailments and Carriers, 93; 1 Jones, Liens (2d Ed.) § 742; Morgan v. Congdon, 4 N. Y. 552; King v. Humphreys, 10 Pa. 217; Eaton v. Lynde, 15 Mass. 242; BURDICT v. MURRAY, 3 Vt. 302, 21 Am. Dec. 588, Dobie Cas. Bailments and Carriers, 84.

50 See cases cited in note 47.

This steady increase in the favor with which the bailee's lien has met, as shown in "the struggle of the judicial mind to escape from the confines of the earlier precedents," " has necessarily resulted in some lack of harmony between the earlier and the later decisions. The truth is that the common-law lien of the bailee is a creature of policy, justified by its own inherent justice and expediency. The lien of the bailee was regarded with high favor by Lord Kenyon 53 and Chief Justice Best 5 among the earlier judges, and modern judges have been active in recognizing the equitable and commercial considerations upon which the lien is based.

52

Agisters and Livery Stable Keepers

By the great weight of authority this common-law lien was denied to livery stable keepers 55 and also to agisters, or those who make a business of taking cattle to be fed or pastured. For these exceptions, though, no entirely satisfactory reason has ever been given. One theory is that the lien exists only when the chattel has been enhanced in value by the skill and labor of the bailee."7 Other bailees, such as the warehouseman,58 have a lien, however, whose labors add nothing to the value of the chattel. Nor can it strictly be said that the agister who fattens cattle for the market adds nothing to their value. Another reason, and a more serious one, has been urged to explain why there can be no common-law lien here. A bailee has a lien on goods only so long as he re

59

51 Gilson, C. J., in STEINMAN v. WILKINS, 7 Watts & S. (Pa.) 466, 467, 42 Am. Dec. 254, Dobie Cas. Bailments and Carriers, 93.

52 Schouler, Bailm. (2d Ed.) § 126; STEINMAN v. WILKINS, 7 Watts & S. (Pa.) 466, 42 Am. Dec. 254, Dobie Cas. Bailments and Carriers, 93. 53 See Kirkman v. Shawcross, 6 Term R. (Eng.) 14, 17.

54 See Jacobs v. Latard, 5 Bing. (Eng.) 130, 132.

55 Jackson v. Cummins, 5 Mees. & W. (Eng.) 350; Parsons v. Gingell, 4 C. B. (Eng.) 545; Smith v. Dearlove, 6 C. B. (Eng.) 132; Miller v. Marston, 35 Me. 153, 56 Am. Dec. 694; Wallace v. Woodgate, 1 Car. & P. (Eng.) 575; Hickman v. Thomas, 16 Ala. 666; McDonald v. Bennett, 45 Iowa, 456; Mauney v. Ingram, 78 N. C. 96; Judson v. Etheridge, 1 Cromp. & M. (Eng.) 742.

56 Grinnell v. Cook, 3 Hill (N. Y.) 485, 491, 38 Am. Dec. 663; Goodrich v. Willard, 7 Gray (Mass.) 183; Miller v. Marston, 35 Me. 153, 56 Am. Dec. 694; Lewis v. Tyler, 23 Cal. 364; Wills v. Barrister, 36 Vt. 220; Millikin v. Jones, 77 Ill. 372; Allen v. Ham, 63 Me. 532 (by statute); Chapman v. Allen, Cro. Car. (Eng.) 271.

57 Story, Bailm. 453a; Scarfe v. Morgan, 1 Mees. & W. (Eng.) 270; Jackson v. Cummins, 5 Mees. & M. (Eng.) 342; Grinnell v. Cook, 3 Hill (N. Y.) 485, 491, 38 Am. Dec. 663.

58 Post, p. 164.

59 Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663; Bevan v. Waters, 3 Car. & P. (Eng.) 520, 522; Jones v. Thurloe, 8 Mod. (Eng.) 172; Jones v.

DOB.BAILM.-10

tains uninterrupted possession. When horses are kept at a livery stable, the owner takes and uses them at pleasure. As to the agister, in the case of milch cows, the owner has occasional possession for the purpose of milking them. Either the agister or the livery stable keeper could, of course, secure a lien by special contract.60

Very generally now the agister and livery stable keeper have liens by statute. It may therefore be stated as a well-established rule that the modern bailee, performing services about a chattel, has a lien thereon for his compensation, regardless of the nature of the services.

Consent of the Owner

Inasmuch as the lien of a bailee arises from his employment to render the services, it follows that the employment must be by the owner, whose goods are to be affected by the lien, or by his consent, express or implied. Thus a thief could not, by giving a stolen watch to a watchmaker for repairs, create a valid lien on the watch against the owner in favor of the watchmaker.

It must not, however, be inferred that the consent of the owner to such a bailment must in all cases be given under such circumstances or in such a manner as would create a personal liability on his part to pay the charges of the bailee. When the goods are improved and enhanced in value by the workman's labor, authority to have it done on the footing of a workman's lien may well be implied from circumstances which would not raise an implication of a contract on the owner's part to pay the workman's charges. Accordingly the bailee may sometimes, in somewhat anomalous

Pearle, 1 Strange (Eng.) 556; Sweet v. Pym, 1 East (Eng.) 4; Jackson v. Cummins, 5 Mees. & W. (Eng.) 342, 350; Cross, Liens, 25, 36, 332. 60 See cases cited in notes 53-57.

61 1 Jones, Liens, § 733; Clark v. Hale, 34 Conn. 398; White v. Smith, 44 N. J. Law, 105, 43 Am. Rep. 347; Hill v. Burgess, 37 S. C. 604, 15 S. E. 963. Cf. McIntyre v. Carver, 2 Watts & S. (Pa.) 392, 37 Am. Dec. 519. The bailee cannot assert his lien against the true owner of the goods who has never consented to such bailment. Small v. Robinson, 69 Me. 425, 31 Am. Rep. 299; Globe Works v. Wright, 106 Mass. 207; Gilson v. Gwinn, 107 Mass. 126, 9 Am. Rep. 13; Hollingsworth v. Dow, 19 Pick. (Mass.) 228; Robinson v. Baker, 5 Cush. (Mass.) 137, 51 Am. Dec. 54; Lloyd v. Kilpatrick, 71 Misc. Rep. 19, 127 N. Y. Supp. 1096; Johnson v. Hill, 3 Starkie (Eng.) 172; Sargent v. Usher, 55 N. H. 287, 20 Am. Rep. 208; Hanch v. Ripley, 127 Ind. 151, 26 N. E. 70, 11 L. R. A. 61. Thus a coach maker to whom a carriage had been delivered for repairs by the owner's servant was denied a lien where the carriage had been broken by the negligence of the servant, without the knowledge of the master, and had been taken by the servant to the coach maker for repairs, without any orders from his master. Hiscox v. Greenwood, 4 Esp. (Eng.) 174.

cases, have a lien on the goods for his services, though he yet may be unable to recover from the owner of the goods the compensation which the lien secures. So, without an in personam claim against the owner, the bailee may have a valid in rem claim against the owner's goods. Thus, where a wife allowed her husband to use her wagon, and he delivered the wagon for certain necessary repairs to a wheelwright, who charged them to the husband, supposing the wagon to be his, it was held that the wheelwright had a lien on the wagon for his charges, as against the wife.62

Subcontractors or Servants of the Bailee

The lien is strictly personal to the bailee, who has contracted with the owner to perform the services. It does not attach in favor of a workman who is hired by the original bailee to do the work. In such case both the possession and lien are in the master or contractor.68 Subcontractors have no lien, because there is no privity between them and the owner. So far as the bailee's own lien is concerned, therefore, it is immaterial whether he perform the work personally or (as he has the right in a proper case) through agents or servants.65 It is not an essential element of the bailee's lien that he perform the services himself.

Priority of Lien

The question of the priority of the bailee's lien over other liens, both prior and subsequent to it in time, on the same goods, is of no little practical importance. As to subsequent liens, it is clear that, once the bailee's lien has validly attached, the bailor cannot create any incumbrances thereafter which will take precedence over the bailee. His lien is good against the world, and no later act of the bailor can postpone it to the claims of third persons. As a general rule the bailee's lien must yield to mortgages or other valid incumbrances created by the bailor before the commencement of the bailment. The mortgage, for example, when no estoppel or con

67

62 White v. Smith, 44 N. J. Law, 105, 43 Am. Rep. 347.

66

68 Gluckman v. Kleiman, 3 Misc. Rep. 97, 22 N. Y. Supp. 549; Wright v. Terry, 23 Fla. 160, 2 South. 6; Quillian v. Central Railroad & Banking Co., 52 Ga. 374. And see White v. Smith, 44 N. J. Law, 105, 43 Am. Rep. 347.

64 Meyers v. Bratespiece, 174 Pa. 119, 34 Atl. 551; Jacobs v. Knapp, 50 N. H. 71; Gross v. Eiden, 53 Wis. 543, 11 N. W. 9; 1 Jones, Liens, § 721.

65 Jones, Liens, § 738; Hall v. Tittabawassee Boom Co., 51 Mich. 377, 16 N. W. 770; Webber v. Cogswell, 2 Can. Sup. Ct. 15.

86 See, on liens in general, Rankin v. Scott, 12 Wheat. 177, 6 L. Ed. 592; Weinprender v. His Creditors, 5 La. 349; Parker v. Kelly, 10 Smedes & M. (Miss.) 184; Puryear v. Taylor, 12 Grat. (Va.) 401.

67 A recorded chattel mortgage on a horse is superior to a subsequent lien of a livery stable keeper, acquired under Mill. & V. Code Tenn. § 2760, where the horse is placed in the stable after the making of the mortgage, without