The opinion of the court was delivered by
Peck, J.
It is claimed by the plaintiff’s counsel that the use of the horse and other articles by the defendant was a conversion for which the defendant is liable in this action. On the part of the defense the claim is that the defendant had a right to use the property to the extent he did use it. If this proposition of the defendant’s counsel is correct, the use of the property by the defendant is not in law a conversion. It is not necessary, in order to entitle the plaintiff to retain the judgment he recovered in the county court, to hold that the use of the property was a conversion, in the view we take of the demand and refusal. As to the right of a bailee to use the property while in his keeping, al*33though, there are some general rules on the subject, yet no general rule of universal application can be laid down, but generally cases must be governed by their own particular circumstances, in the absence of any contract on the subject of the use. The authorities seem to agree that the right of the bailee to use the property, in the absence of express contract on the subject, depends on the circumstances of the case, the character and purpose of the bailment, the nature of the property in connection with the other attending circumstances. One test or principle applicable to the subject is, to consider whether from the circumstances the consent of the owner to the use may fairly be presumed. It is said in the books that if the use would be for the benefit of the property, the assent of the owner should generally be presumed, but not so if the use would be injurious, or perilous. It would seem that if the use would be indifferent, the right to use should be determined the way the other circumstances incline. In some cases the assent of the owner may be inferred as a fact from the circumstances; but that is not in all cases necessary; for in some cases the presumed assent is a mere fiction, and the question as to the right of the bailee to use the property becomes a question of law upon a given state of facts, without reference to any actual assent of the owner in fact. It is generally not only the right, but the duty, of the bailee to use the property so far as necessary to its preservation. To this extent the assent of the owner may be presumed—as in case of the milking of a milch cow; and in case of a horse, exercise and moderate use to the extent necessary to the health and vigor of the animal. Again it is laid down by the elementary writers, that the right to use the property may depend on whether it is property of a nature that requires expense to keep it; and if so, the bailee may use it reasonably to compensate him for the charge of keeping. This fact however would not necessarily determine the right without reference to the character of the bailment and other circumstances. In the present case no one of the above considerations alone can determine the right, but it must be determined by all the circumstances combined. The question then arises, what are the rights of the parties in this respect under the circumstances of this case. Soon after the horse and other arti*34cles were left with the defendant- by Pierce, the defendant had good reason to believe that Pierce did not own the property and that he had abandoned it, and that he was acting in bad faith toward the owner. The defendant, the bailee, did not know who or where the owner was ; and the owner, as the defendant must have had good reason to know, was ignorant as to where the property was; so that there was no opportunity for communication between the parties to obtain or give instructions, or for the defendant to apply to the owner for payment of his eharges for keeping. Even if under the circumstances the defendant would have had a claim for the keeping, for which the owner, the plaintiff, would be personally liable, still the defendant did not know when, if ever, he would be discovered; so that, apparently, during the time of the bailment, the defendant had no available means of compensating himself for the keeping, except the horse and other articles of property in question. For aught the defendant knew, the property was his only debtor for the expense he was incurring; and had the horse died in the mean time after a large bill had accrued, this remedy would have been lost. Under such circumstances, the defendant had a light to use the property moderately and prudently, to the extent of compensating him for his charges, in the manner that the case shows he did use it. Whether the actual assent of the plaintiff in the mean time is presumed or not, it is fairly to be presumed that if the plaintiff had'known the facts he would have assented. The use of the property has manifestly benefited the plaintiff, for, but for that, the expense of keeping for the four years would probably have exhausted the whole property. The defendant’s use of the property being lawful, it is no conversion.
In this the court agree with the defendant’s counsel.
But the demand of the property by the plaintiff and the refusal by the defendant was a conversion which sustains the action and entitles the plaintiff to recover. The defendant having lawfully used the property, must account for the use upon his charges for trouble and expense of keeping the property ; and the court having found that it is a full equivalent, the defendant had no lien upon the property. The plaintiff, therefore, at the time of the demand, had a right to the possession which was wrongfully with*35held by the defendant. It is urged by the defendant’s counsel that the action of trover is not the proper action ; that the expense of keeping, and the question as to the use of the property, cannot be tried in an action of tort; that the action should be an action of contract. But the action of trover is the proper action for the owner of personal property, who is entitled to possession, to bring against one who, on demand of the owner, wrongfully refuses to surrender it. This is the plaintiff’s case. The defendant cannot defeat the suit, or turn the plaintiff over to a different form of action, by setting up a lien upon the property which has no foundation in fact. If a lien is asserted and attempted to be proved in defense by virtue of a debt, claim, or charge incurred in respect to the property, it is competent for the plaintiff to show that no such lien ever existed ; or that, if it once existed, it had been extinguished ; and it is no objection to such proof that it involves the inquiry whether such debt, claim, or charge has been paid or otherwise satisfied. Such issues may properly, and often do, arise collaterally in actions of tort, and especially in the action of trover. Nothing is more common than to try questions of lien in defense of the action of trover. We have no occasion to discuss the question whether the defendant was entitled to all the rights that a regularly licensed inn-keeper would have had in regard to a lien upon the property, because, conceding that he was thus entitled, there is no error in the decision of the county court of which the defendant has a right to complain.
Judgment affirmed.