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could maintain an action on the case. As the horses were not in his possession he could not have maintained trespass, and, as he was not entitled to their possession until the end of the term for which they were hired, he could not have trover. But the injury was one to the plaintiff's reversionary interest, and for such an injury an action on the case is the proper remedy.

§ 78. Effect of bailee's lien on bailor's right of action. Ames v. Palmer (12) was an action of trover by the owner of certain personal property which had been taken from a common carrier by the defendant, an officer, on an illegal execution. The court instructed the jury that it was incumbent upon the plaintiff to satisfy them by proof that the plaintiff had both the property and the right of immediate possession; and that, if they were satisfied from the evidence in the case, that the carrier had a lien for the freight, which had not been paid or waived, then the action could not be maintained. The jury found for the defendants on the ground that the freight had not been paid, and the claim of the carrier had not been waived. On appeal the case was reversed, the court holding that a common law lien for services rendered is of such a nature that it does not deprive the general owner of the right of immediate possession, as against the wrongdoer; and constitutes no bar to the possession of the property, unless set up by the authority of the party holding such lien. The theory of the court was that by suffering the property to be attached, the bailee lost his lien; that it is a personal privilege to be asserted by the

(12) 42 Me. 197.

bailee on his own behalf; that, subject to the lien, the owner was entitled to possession and that, therefore, the lien was no bar to the owner's right of action as against a wrongdoer.

In Wilson v. Martin (13) the plaintiff was the owner of some harnesses and delivered them to one Page to be cleaned and oiled. Page cleaned and oiled them, and, while they were in his possession and after he had performed the service aforesaid on them, they were attached by the defendant as deputy sheriff, upon a writ against one Morrison as the latter's property. Page asserted his lien and refused to allow the harnesses to be taken from his possession until he was paid for his labor, and it was agreed between the defendant and Page that the harnesses should remain in the latter's possession. Two days after the attachment, plaintiff, after demanding the harnesses of the defendant, brought an action of trespass against the defendant. It was held for the defendant, The plaintiff had not had possession to lay a foundation for an action of trespass. The property had been and still was in the rightful possession of Page who was entitled to hold them until paid for his services and was holding under his lien.

Plaintiff could not have maintained trover since he lacked not only possession but also the right to possession. In Ames v. Palmer the property had actually been taken from the possession of the bailee and the decision was simply that the bailee's right, whatever it might be, could not be set up by the wrongdoer as against the general

(13) 40 N. H. 88.

owner who was entitled to possession subject to the bailee's rights, which rights had not been asserted. In Wilson v. Martin the bailee's rights were being asserted and enforced.


§ 79. In general. That the bailee, having rightful possession, can maintain the various possessory actions has long been well established.

Thus, where cattle were lent to plaintiff to manure and improve his land, and they were wrongfully taken by the defendant the plaintiff was allowed to maintain replevin for them (14). Where the owner of cattle bailed them with an agister, the plaintiff, and the defendant took them for arrears of rent due from the owner, it was held that the plaintiff could maintain an action of trespass for the taking (15). In Rooth v. Wilson (16) the plaintiff's brother sent to him a horse, which the plaintiff put in his close, and, by reason of defects in the fence, due to the negligence of the defendant, the horse fell into the defendant's close and was killed. The bailment was gratuitous. The plaintiff brought an action on the case. It was held that he could recover. His possession was sufficient to enable him to maintain the action, although he did not have title to the property and although it was a merely gratuitous bailment and could have been terminated at any time by the bailor.

(14) Anonymous, Year Book, 11 Hen. IV. 17, pl. 39.
(15) Anonymous, Year Book, 48 Edw. III., 20 pl. 8.
(16) 1 B. & Ald. 59.


In Burton v. Hughes (17) the owner of furniture had hired it to plaintiff by an agreement void because not stamped. The defendants seized the furniture under a commission of bankruptcy issued against another person. The plaintiff brought an action of trover and it was held that his simple possession was sufficient to enable him to maintain the action. In Van Bokkelin v. Ingersoll (18) it was held that a carrier who was holding goods under his carrier's lien could maintain trover against one who took the goods from his possession.

Thus, a bailee, whether gratuitous or for hire or holding under a common law lien, has the possessory actions, his right being based on the ground of the injury to his possessory interest.

$ 80. Measure of damages. In actions by the bailee, it may be said that in general the bailee may recover the full value of the article in trover, or the full amount of the damage done in trespass and case, and is responsible over to the bailor for the damages so recovered. For fuller treatment of the question see the article on Damages in Volume XI of this work.

(17) 2 Bing. 173.
(18) 6 Wend. 315.




§ 81. Care of property. No law compels one who finds the property of another to take charge of it but if he does take it into his custody he becomes a gratuitous bailee for the benefit of the owner and is subject to a certain amount of responsibility in respect to it.

In an action of trover for butter that defendant had found, the declaration alleged that he so negligently cared for it that it became of little value. On demurrer it was held that no action lay (1). The decision is right because there was no conversion and so no action of trover. It seems, however, there should be an action on the case if the finder, after assuming possession, is negligent in the care of the property. Thus, “If a man finds goods, an action upon the case lieth, for his ill and negligent keeping of them, but no trover and conversion, because this is but a non fesans" (2).

Where the defendant found the plaintiff's horse, took and kept it a week and used it so that, when he returned it, it was lame and unfit for use, it was held that the plaintiff could recover from the defendant for the in

(1) Mulgrove v. Ogden, Cro. Eliz. 219. (2) Per Coke, C. J., in Isaack v. Clark, 2 Bulst. 306, 312 (1615).

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