trary doctrine is laid down in several cases (z). The principle appears to be this-that a special agreement does not of itself destroy the right to detain; but if it contain some term inconsistent with that right, it will. A set-off cannot be considered as destroying a lien, unless it be so agreed upon between the parties (a). If a security is taken (b) for the debt for which the party has a lien upon property of the debtor, such security being payable at a distant day, the lien is gone. A quantity of iron was imported by A., and landed on the 14th October at defendant's wharf. On the 15th October, the plaintiffs purchased the iron of A., paid for it, and obtained an order for the delivery, under which, part was delivered at different times, until the March following, when A., the importer, becoming bankrupt, the remainder of the iron was detained by the defendants claiming a lien on it in respect of their charges for wharfage. The course of dealing proved was, that these charges were usually paid by the merchant importer, at the Christmas following the importation, whether the iron had, in the mean time, been removed or not. Abbott, C. J., was of opinion, that the defendants were not entitled to a lien; for, at the time the iron was purchased by the plaintiffs, the defendants had not any lien upon it for their charges; and in this opinion the court afterwards concurred (c). Holroyd, J., observing, that the wharfage was not payable till Christmas, and by the sale the plaintiff had a right to an immediate delivery; and the subsequent default of the importers to pay the debt due from them would not alter the case. A trainer has a lien (d) on a race-horse for the expenses and skill bestowed in the keeping and training him; on the principle, that, where a bailee bestows labour and skill in the improvement of the subject delivered to him, he has a lien for the charge. So where S. sent a mare to M., to be covered by a stallion belonging to him, which was done accordingly; it was holden (e), that M. was entitled to a specific lien on the mare for the charge of covering her. But the case of agistment does not fall within this principle, as the agister does not confer any additional value on the article, either by the exertion of any skill of his own, or indirectly by means of any instrument in his possession, but simply takes in an animal to feed it. Hence an agister of milch cows has no lien (ƒ); and a person to whom a horse is delivered to be stabled, taken care of, fed, and kept (g), has not any lien for the charge.

(z) Brenan v. Currint, Say. R. 224, shortly stated in Bull. N. P. 45, and MSS. See also Collins v. Ongley, post, p. 1377. But these authorities were overruled in Chase v. Westmore.

(a) Pinnock v. Harrison, 3 M. & W.

532.

(b) Cowell v. Simpson, 16 Ves. 275, recognized by Tindal, C. J., in Hewison v. Guthrie, 2 Bingh. N. C. 759.

(c) Crawshay v. Homfray, 4 B. & A. 50. (d) Bevan v. Waters, 1 M. & Malk. 236, Best, C. J. But see the remarks on this case in Jackson v. Cummins, 5 M. & W. 350.

(e) Scarfe v. Morgan, 4 M. & W. 270. (f) Jackson v. Cummins, 5 M. & W. 342.

(g) Judson v. Etheridge, 3 Tyr. 954; 1 Cr. & M. 743.

In trover, by an assignee of a bankrupt (h), it appeared that the goods had been attached in the hands of J. S. (to whom they had been delivered by the bankrupt) (17), in a plaint at the suit of the defendant. Afterwards, and before condemnation, an act of bankruptcy was committed: then the goods were condemned, and satisfaction entered on the record by the defendant; it was holden, that this evidence was sufficient to charge the defendant, the property not being altered until condemnation; and that the person who delivered the goods by compulsion of law was discharged. The C. J. added, that if goods were delivered to a manufacturer, he might detain them for what he deserved for his labour; but if there was an agreement for the price he could not; in that case he must rely on the contract, and be in the same condition with other creditors. If a person having a lien upon goods, e. g., for warehouse rent, when they are demanded of him, claims to retain them upon a different ground, viz. that the goods are his own property, and does not make any mention of the lien, trover may be maintained against him, without evidence of a tender having been made to him in respect of his lien (i). A lord of a manor seized a beast as an estray (k), and kept it for some time after having proclaimed it; the owner afterwards, and within the year, claimed it, and brought trover, without having first tendered a satisfaction for the keeping of it; and for the want of this it was holden, that the action would not lie. But if a horse be distrained in order to compel an appearance in a hundred court (1), after appearance the plaintiff cannot justify detaining the horse, until his keep is paid for. Where a person has a simple lien on goods, he cannot sell and dispose of them; but if he has a special property in those goods in trust for another, subject to a claim of his own, in such case, the party may sell in order to repay himself (m). A party cannot acquire a lien by his wrongful act (n). If the defendant is to be considered as a mere wrong-doer (o), it is not necessary for the plaintiff to tender him an indemnification for expenses which have been incurred by him in order to obtain a wrongful possession; so no formal tender is neces

(h) Collins v. Ongley, B. R. E. 9 Will. III., per Holt, C. J., cited by Ryder, C. J., in Brenan v. Currint, MSS.; but Brenan v. Currint was overruled in Chase v. Westmore.

(i) Boardman v. Sill, 1 Campb. 410, n., Lord Ellenborough, C. J.

(k) Taylor v. James, 2 Rol. Abr. 92,

(M.) pl. 3.

(1) Lenton v. Cook, H. 9 Geo. II., Bull. N. P. 45.

(m) Per Holroyd, J., Cazenove v. Prevost, 5 B. & A. 78.

(n) Griffiths v. Hyde, Dorset Sum. Ass. 1809, Lawrence, J.

(0) Lempriere v. Pasley, 2 T. R. 485.

(17) It is not stated for what purpose the goods had been delivered to J. S., but it seems, from the subsequent part of the case, that J. S. was a manufacturer to whom the goods had been delivered by the bankrupt, in order to have some work done to them, under an agreement to pay a certain sum of money for such work.

sary (p) where the defendant is not in a situation to deliver up the goods (18).

Property held by a party in right of a lien cannot be taken in execution; for a lien is a personal right, and continues only so long as the possessor holds the goods; and the sheriff cannot sell an interest of this description, which is a mere personal interest in the goods (q).

Evidence.

In order to maintain this action, the plaintiff must prove,

1. Property and right of possession in himself in the goods in question.

2. The nature and value of the goods.

3. A conversion.

In general this is the only proof requisite (r); for it is not necessary to prove the manner in which the goods came to the hands of the defendant, that being matter of inducement only. In trover for a debenture (s), the plaintiff must prove the number of the debenture as laid in the declaration, and the exact sum to a farthing, or he will be nonsuited, but he need not set out the number (any more than the date of a bond (t), for which trover is brought); for the plaintiff, not being possessed of the debenture, may not know the number, and if he should mistake in the number, he must fail in the action. In trover for a bond (u), the plaintiff will be permitted to give parol evidence of the contents, although he has not given the defendant notice to produce the instrument itself; and although defendant offers to produce the instrument, plaintiff is not bound to put it in. So in trover for the certificate of a ship's registry (x), the certificate may be proved to have been granted to the plaintiff by the production of the registry, from which it was copied, though notice has not

(p) Jones v. Cliff, 1 Cr. & M. 540; 3 Tyr. 576.

(q) Legg v. Evans, 6 M. & W. 36. (r) Bull. N. P. 33.

(8) Per Holt, C. J., London Sitt. A. D. 1707; Bull. N. P. 37.

(t) Wilson v. Chambers, Cro. Car. 262. (u) How v. Hall, 14 East, 274; and see 1 Campb. 144, and Whitehead v. Scott, 1 M. & Rob. 2.

(x) Bucher v. Jarrat, 3 Bos. & Pul. 143.

(18) It seems, that the same rule holds where the defendant has incurred an expense in respect of the plaintiff's goods, without an authority from the plaintiff. Stone v. Lingwood, Str. 651; which case, however, was denied to be law by Lord Mansfield, C. J., 4 Burr. 2218. Where possession has been obtained by a misrepresentation on the part of the defendant, he cannot set up a lien, to which he might otherwise have been entitled. Madden v. Kempster, 1 Campb. 12.

been given to the defendant to produce the certificate itself (19). In these cases the nature of the action is sufficient notice to the defendant of the subject of inquiry. In trover for a ship (y), the mere fact of possession as owner is sufficient primâ facie evidence of ownership, without the aid of any documentary proof of title, as the bill of sale or ship's register, until such further evidence is rendered necessary in consequence of the adduction of some contrary proof on the other side (20). To determine what evidence will be sufficient to prove a conversion in the defendant, it must be known in what manner the goods came to his hands (2); for if they came to his hands by delivery, finding, or bailment, an actual demand and refusal ought to be proved; but proof of a tortious taking will supersede the necessity of proving a demand and refusal; for where the taking is unlawful, it is of itself a conversion; so likewise, if an actual conversion be proved, it is not necessary to prove a demand and refusal (a). A mere nondelivery of goods, which have been placed in the defendant's hands for a specific purpose, will not amount to a tortious conversion. Hence (b), where goods have been delivered to a manufacturer, in order that he may do something to the goods in the course of his business, and then return them; if the manufacturer, upon being applied to for the goods, merely makes excuses for not having returned them, and does not absolutely refuse to deliver them, trover cannot be maintained: the proper remedy is an action of assumpsit for non-performance of the contract. Where plaintiffs sold goods to T., who paid for them, and was to take them away, but defendant becoming possessed of the place in which the goods

(y) Robertson v. French, 4 East, 130. See also Sutton v. Buck, 2 Taunt. 302. (z) Per Cur. in Bruen v. Roe, 1 Sidf. 264.

(a) Forsdick v. Collins, 1 Stark. N. P. C. 173, Lord Ellenborough, C. J. (b) Severin v. Keppel, 4 Esp. N. P. C. 157, Lord Ellenborough, C. J.

(19) "Where a written instrument is to be used as a medium of proof, by which a claim to a demand arising out of the instrument is to be supported, there I admit the instrument itself must be produced, or notice to produce it must have been given to the defendant, before any evidence of its contents can be received; but this being an action of trover for the certificate of registry itself, I can see no sound reason why evidence should not be admitted of the existence of the certificate, in the same manner as evidence of a picture, or other specific thing, is constantly admitted where it is sought to be recovered in the same form of action.' Per Rooke, J., 3 Bos. & Pul. 146.

(20) Entries in the custom-house books of the port of London, and of the out-port to which a ship belongs, stating that she was transferred to A. by B., the original owner, was holden not sufficient evidence to prove that A. was liable as registered owner, there not being any proof to connect A. with the entries. Fraser v. Hopkins and another, 2 Campb. 170. See also Tinkler v. Walpole, 14 East, 226; Smith v. Fuge, 3 Campb. 456; Strother v. Willan, 4 Campb. 24.

were deposited, plaintiffs' attorney, accompanied by T., demanded them of defendant, telling him that they belonged to plaintiffs and that they had sold them to T.; to which defendant answered that he would not deliver them to any person whatsoever; and afterwards plaintiff repaid the money to T. and brought trover against defendant it was holden (c), that this demand and refusal were sufficient evidence of a conversion to support the action, and that a new demand by the plaintiffs, after they had repaid the money to T., was not necessary. A bailee can never be in a better situation than the bailor. If the bailor has no title, the bailee can have none. Hence, where the captain of a ship, who had taken goods on freight and claimed to have a lien upon them, delivered them to a bailee; and the real owner demanded them of the bailee, who refused to deliver them without the directions of the bailor: it was holden (d), that the bailor not having any lien, the refusal by the bailee was sufficient evidence of a conversion. Goods consigned to A., upon their arrival are landed on the defendant's wharf; the plaintiff in an action of trover, may prove his title by parol, although the bill of lading which has been indorsed to him cannot be received in evidence for want of a stamp (e). A trader, on the eve of bankruptcy, made a collusive sale of his goods to A. It was holden, that the assignees could not maintain trover for the goods against A., without proving a demand and refusal (ƒ). But the sale of a ship, which was afterwards lost at sea, made by the defendant, who claimed under a defective conveyance from a trader before his bankruptcy, has been holden to be a sufficient conversion so as to enable the assignees to maintain trover, without proving a demand and refusal (g). N. The defendant sold the ship by public auction, and afterwards assigned it to the vendees, who sent her to

sea.

A demand and refusal is only evidence to induce a jury to presume a conversion (h); and, therefore, if the jury find a special verdict, that there was a demand and refusal, the court cannot adjudge it to be a conversion. A demand and refusal is not evidence of a conversion (i), where it is apparent that the defendant has not been guilty of a conversion: as in the case of the defendant having cut down the trees of the plaintiff, and left them lying in the plaintiff's ground; for in such case it is clear that there has not been any conversion, if they continue there. If A., into whose possession goods happen to come, being ignorant that B. is the real owner, refuses to deliver them to B., until he proves that he is the real owner; such qualified refusal is not evidence of a conversion (k).

(c) Pattison v. Robinson, 5 M. & S. 105.

(d) Wilson v. Anderton, 1 B. & Ad. 450. (e) Davis v. Reynolds, 1 Stark. N. P. C.

115.

(f) Nixon v. Jenkins, 2 H. Bl. 135.
(g) Bloxam v. Hubbard, 5 East, 407.
(4) Per Sir E. Coke, C. J., 10 Rep.

56, b. 57.

(i) Per Cur., 2 Mod. 245.

(k) Green v. Dunn, 3 Campb. 215, n., Lord Ellenborough, C. J. See also to the same effect, dict. per Coke, C. J., 2 Bulst. 312, ante, p. 1358, and Lord Kenyon, C. J., in Solomon v. Dawes, 1 Esp. N. P. C. 83.