The opinion of the court was delivered, May 14th 1868, by
Agnew, J.
At the common law the lien of a bailee for service lasts only while he retains the possession. His relation to the bailor, the owner of the chattel, is a personal one, and grows 'out of the confidence the bailor is presumed, to repose in the skill and fidelity of his bailee, when intrusting his property to him for the service intended to be performed upon or toward it. The law implies a contract on part of the bailee to perform the service skilfully, and then to return the chattel faithfully on payment for his service. Hence if he sell or pawn it away he is guilty of a J breach of his fidelity to the bailor, and at once forfeits his right | of lien. The authorities cited by the defendant in error clearly show this to be the law; and so far the learned judge would have ■been justified in his rulings. But when the Act of 14th December 1863 (Purdon by Brightly 1344) gave to the bailee the power to sell the property at auction in order to enforce his lien, it introduced a change in the relation of the parties which relieved the bailee from the duty that required constant possession as the means of enforcing his lien. The property in his hands then became a security for his claim with the means of enforcing payment. The property was thus capable of transfer to any one who would bid for it in the due course of procedure, and of conversion into money. The relation between the parties was thus changed in its most important and peculiar feature. But in this case the bailee did not pursue the Act of Assembly by making a public sale after notice to the owner to come and take away his horse; and pay the charge upon him. The sale, it is very certain, did I not carry the title, and left the defendant, who was the purchaser, J unprotected against the demand of the plaintiff as the owner of I the horse in an action of replevin; and this brings us to the only! substantial question in the cause. The defendant claimed the *419benefit of the lien of the bailee, and the right to retain the horse until payment of the bailee’s charge, and for this purpose offered to prove that after the bailee gave notice to the plaintiff to pay his charge, and after waiting the sixty days required by the act, the bailee “ transferred the horse with all his claims upon him to the defendant for full value.” This offer the court rejected on the ground of irrelevancy. Though right under the common law, we think the court erred in view of the change in the relation wrought by the statute. The property in the hands of the bailee being now a security for payment, with the means of procuring satisfaction by a sale and conversion, the reason of the common-law rule has ceased. There seems to be now no good reason why a transfer of the debt or charge upon the property, together with the possession of the preperty, should not effect a substitution of the purchaser to the right of the bailee to receive the money, and to retain the security until payment, where the sale and transfer have been bona, fide, and there has been no fraud or abuse of the] owner’s property. As the owner of the charge, the purchaser is capable of giving the owner of the property a sufficient receipt or acquittance for the debt, and has in equity the same right to proceed regularly to demand payment, and to enforce it by a sale in due course of law after notice, as the bailee had originally^ The rights of the owner of the property remain unchanged. He is hound only for the charge as it existed in the bailee, and can demand and receive his property from the purchaser precisely on the terms he could do if his property yet remained in the bailee’s^ hands. In the absence of fraud or removal of the property out of reach, or any other act of abuse of the original relation of bailment, there seems to be no equity in permitting him to recover without doing equity by paying or tendering the charge which is a lien on the property. We are of opinion that the court below erred in ruling out the defendant’s offers. These remarks sufficiently indicate the principles upon which the case should be retried.
Judgment reversed, and a venire facias de novo awarded.