*1 v. USHER. SARGENT March, 1875.] furtherance promotion was the contract, which the object ale, intoxicating liquor, answer admits sale which law. prohibited which the contract, but does this unlawful and relies upon alleges The bill Mrs. case, that to make out the it should order as I think allege, nature of the contract was ignorant Joliannah Rourke the note in out by signing question. and carry to execute she assisted were the plain- Joliannah Rourke doubt beyond to me all stain from her skirts from to clear here, tiff would be obliged she should relieve transaction, and I see how her death cannot this illegal have borne. I think she must from burthen which her representative him from the aid court to relieve invokes The plaintiff interfere, He asks the court to unlawful contract. of that effects ancestor, his ward’s a deed made by for his benefit set aside out this contract. of carrying purpose 128, be Hunter, N. H. to me to The case of White aid here, There, seeking exactly of the court to relieve point. of his ancestor’s him from consequences de- maxim, est conditio delicto potior unlawful contract. pari case, the as I should infer If, was held to fendentis, apply. find it hereafter not in actual defendants are necessary to recover aid the court to enable them to invoke the be held same maxim would probably applicable. ob- must dismissed unless the parties, I think the bill as they shall their in the amend pleadings tained leave circuit advised, shall to trial. go the result. J., concurred

Ladd, Decreeaccordingly. March 13,

Sargent v. Usher. 1875. lien. Agister's cannot, acquiescence, knowledge, horses mortgagor “entrust” of the mortgagee, consent lien for their keeping them to a so as to subject be boarded —under mortgagee. sec. 2—as ch. Plea, 81,1874. gene- March dated horses. Writ Trovek for two term, September Trial before ral issue. Rand, Nashua, March at the plaintiff’s taken Robinson, one to E. by George two defendant, mortgages given under 28, 1878, defendant, recorded October duly 27,1878, October recorded. 27,1873, November dated Glidden, Charles W. other to one SARGENT USHER. November 28,1873, duly assigned January *2 horses, The and the were all of parties these mortgages, Malden, Massachusetts, at the time of the of said mortgages, execution and the in and secured were executed Massa- mortgages thereby *3 v. of Robinson—Leach of to right course subject redemption 12 v. Met. 4 Kent’s Bullard, H. Brackett Kimball, 34 N. ; N. Y. and it is clear so far Bank v. 4 497 Jones, Com. to defeat this right as of the mortgagor regards any supposed power effect, this right by subjecting and, abrogate that of a bailee. it in no different to a he stands lien, position then, be, case, whether the statute in the only question &c., is of such a construc- cattle, agisting capable a lien giving tion animals of one his having as will possession permit to a for their against another to lien keeping subject or owner, consent, his or knowledge, acquiescence, without And that it is not. I am of implied. opinion cattle, “Any any horses, whom person, The act provides or animals shall be or other domestic entrusted sheep, pastured for all due for such charges shall have a lien thereon proper until the same shall or tendered.” Gen. board, or pasturing paid cli. sec. 2. of this turn on the Now, whole construction act be made to “ no follows that makes entrusted,” undeniably word animals to came how the by be boarded entrusting pastured person thief, bailee, A and an them, nor what his to them is. right in this all on the same footing. absolute owner are respect owner, sale of stolen the thief no title goods by passes aby bailee, is in true with and the same respect by owner, so the indicia of title unless he has been clothed with that the loss way ought by as authorized to sell in such or held out than on an inno owner rather reason of his own acts to fall maxim, alium Nemo juris cent The is one of potest purchaser. plus transferre and the rule habet, very general application, quam ipse is, that the title there are this to which of course country, exceptions, act and consent. without his own free of the true owner cannot be lost 2 Noble, ; v. 13 H. 109 324; Smith, v. N. Hyde Kent’s Com. Kingsbury a forcible 580; N. N. H. see 494; quite 13 H. v. 51 Lincoln, Farley —and 290

discussion of the whole subject by Senator in Saltus Yerplance, Everett, Wend. 267. that a aby idea be created contract of the possessor of animals for their the owner in no keeping, way such privy contract, whatever, when no as against owner, rights be con- sale, ferred least. Such a created a contract seems by anomalous, to.sny the would, me, as it be a violation of thing constitution; fundamental rights guaranteed by the and if lien, had undertaken this act to legislature create a to arise on facts, such a I think it state of would be the duty n than Foster, more intimated Jacobs v. 50 N. H. 82, act, far, hold the unconstitutional and void. But I do not think such intention is to be found the statute. In I think word in giving specific legislature used the its legal tween the sense, and that generally be- accepted same implies privity owner, of “ disposing goods, ” and him in ; whose favor the lien is claimed and entrusted is meant or other the owner person having authority the animals for such a is, to the owner’s purpose, suspend —that are until the charges Cases where it has been held that common carrier, innocently receives from a owner, the consent of has no lien them for their .express carriage such owner, seem to cover the whole and more. 2 Railw. ground Redf. 171; Baker, Railroad, Robinsonv. v. B. 5 Cush. Stevens W.& Gray Boswick, The recent English Rep., Threfall Q.7 B. 711,* has reference to an lien, inn-keeper’s and, my judg ment, to the case before us here. applicable *4 The whole of reasoning the carefully-considered opin- Foster, ion of him in the court delivered Jacobs v. the of this must, me, and that case as it position plaintiff; seems to regarded as quite direct the raised in the upon question present. these views it is that Upon obvious the not entitled plaintiff recover, the facts stated in and of case the ruling charge the the court, under which his to recover was made to right depend

whether or not the horses were to him to be reference either to the defendant’s them as mort- right interest gagee, the nature of and title, and extent Robinson’s cannot right be sustained. C. It does not from the case that any question appear CushiNG, made about of his gen- the validity mortgages, defendant’s eral of and, of in the absence the possession property; intimation to the I shall assume that not the contrary, legal right of but, against Robinson, the immediate property, *S. C. Rep. B. since this decision was announced. 210, published Q. 1875.] defendant, the so that two arise the case. 1. questions Had any lien been created between the and to plaintiff Robinson, extent ? 2. If what was the defendant bound it ? so, It from the case that Robinson the appears employed plaintiff board week, the horses at seven dollars and that a con- per during siderable hauling the time lie was wood and for the timber 'plaintiff.

There is in the case to show that Robinson was in nothing tending any way servant of the the He was employed plaintiff. paying his board as well as for the board of liis and the evidence tends to show that he had really the exclusive care all the time that during lie was wood and timber for the plaintiff. There was no evidence that time the tending show during had plaintiff horses, or, assumed any care about the responsibility fact,

point had fur- of them. He to have any possession appears nished stable-room and food, more, and Robinson nothing appears to have had care, the I whole exclusive responsibility. think there was no evidence the to show that tended during sense, time the horses entrusted to the were, any just care plaintiff. during cannot see that he had any evidence this time more care than he would had responsibility Robinson had fed horses in his hay own taking grain from the me, therefore, barn. It that entirely independently rights of the defendant peculiar property, to this ''xteiit the had no lien. plaintiff acquired But x also, appears, days there a few which time during plaintiff the sole care of during which time show, evidence tends to that, as between plaintiff were entrusted meaning within 2; Stat. ch. and the to be deter- question —Gen. is, mined whether, as between the and the Robinson could so entrust the horses to the as to interfere with the de- fendant’s rights. settled, to be re- well perfectly to sales of buyer cannot shift himself gard personal property Caveat responsibility propei%. title looking non emit. settled that debuit alienum also ignorare jus qui quod seller cannot which he does buyer any right transfer in some way himself the owner of the unless possess, ownership it in the the seller assume power appearance *5 with and defraud a merely entrusting party purchaser; also in some is not such an unless he act, the owner way indicia of gives party ownership. no not the owner why Now there seems reason a good party it a either be or create permitted property, should be common more than that he by statute, per- at law or any a it. good why person mitted to sell Neither there reason any (cid:127)SARGENT USHER.

is about to establish another out of which would relations with a lien be created should make it would in- inquiries not the same which be cumbent on him to make he were going purchase property. If Robinson had sold the would seem to there plaintiff, be no doubt Robin- that the no more than acquire son had. his it that the making Does make with a to' wood, Robinson for included it bargain contract board his ? It is true that are some of a nature there employments public regard to said that has been the nature party Thus, his no to make Bacon’s employment opportunity inquiry. said, title, D, Inns and it is Abridgment, Inn-keepers, Inn-keepers —“ eats, may detain the eats, or the horse which guest till do for that payment, agreement may purpose; men that their livelihood entertainment of others get cannot annex such conditions shall retain the disobliging that they nor party’s make non-payment, disadvantageous shall not be therefore impudent supposition, paid; the law annexes such a condition without agreement the express “If him parties.” take the horse of B and injuriously away into an inn B him, to be come and demand he shall not have kept, him meat; until an he hath satisfied the for his when inn-keeper into his inn-keeper takes horse he is not bound to inquire keeping, who is him the owner of the horse which lot keep, he obliged will, to whom it belong therefore no reason that the inn-keeper should be to deliver him till obliged he satisfied.” So, carriers, the case of main- common has been sometimes tained that the common carry to receive goods him, which are has a them till his brought right to retain charges are whether them from owner or he receives the true paid, not, he receives them it has an- provided To which been innocently. swered, that is not the carrier bound to receive until he has first goods me, however, authority weight in favor of the doctrine that the common carrier cannot acquire more extensive than his Railw., 2 Redf. on employer. sec. and authorities cited. This doctrine is maintained in Gilson v. Gwinn, 107 Mass. It seems clear that the car- enough cases inn-keeper rier are however the law exceptional, regard held them, there would be no reason should not why bailee ordinary held caveat doctrine of and have seen no case which then, conclusion, is,

it is held otherwise. that Robinson My law any to entrust the plaintiff’s keeping. In Jacobs v. N. 50 H. it is held that under ch. no lien can be created in favor of the except party contracts and I owner see no reason property, why same construction should not 2 of to section the same apply chapter. It is claimed brief that Robinson to be ought *6 293 Í875.] defendant; considered in law as tlie but have seen no case agent in which it has held that a another to have permits party, of his law that property, by doing constitutes personal other his to sell or agent pledge property. also, suggested argument, when he saw the horses at was bound to have given notice of his claim; but I not do see had been anything brought knowledge notice of the defendant of unlawful or dishonest on dealing made incumbent defendant to on his guard. put that, Stats., It should be by 123, 13, added Gen. ch. sale situated as this offence, was is made a pledging penal which would seem inconsistent the idea that such pass any title vendee or that of beyond pledgee seller or pledger. Smith, I am also of the in order to create a valid opinion, lien under the of sec. ch. provisions favor of one who takes domestic animals to be must be owner, or some them, to entrust for such pur- It is a pose. universal that a man’s shall not be principle, taken from him without his consent. The in these general property horses was in subject the defendant, to be divested payment him of the amount due the debt secured As upon by the mortgages. claimed exists undér the above named the case is not an strictly that’of or common analogous inn-keeper carrier. cases, Many the reasons which decisions those govern however, will here. apply (cid:127) In England be, a the law seems to that an has a lien on a inn-keeper horse for his it from the true owner. And this is come keeping, put up guest fraudulently by that the ground 1ns inn-keeper naugh, receive the horse. Yorke v. Gre guest Q. 2 Ld. 866 v. Raym. Borwick, B. Rep., Threfall and cases there referred to. It is not this case to whether the necessary deciding inquire English doctrine in to an lien under such circum regard inn-keeper’s stances has ever been in this character of state. adopted public the business and of carrier furnish a common inn-keeper some reason for caveat to them the applying emptor. But in this country current the authorities rule, as established the case Fxeter referred to Carrier, v. York a carrier Grenaugh, application exempting supra, of the rule of caveat Baker, in Robinson It is so denied expressly emptor. 5 Cush. that a common where was held consent of innocently receives from a without the owner, for their car has no lien 1, riage such owner. Doug. (Mich.) Fitch Newberry, full the same shows a is a case point, considered, carefully v. THOMAS. WINN *7 of the authorities. There are hard as cases, sug- examination gested by many Baker, in Robinson v. of honest and Judge supra, FletcheR who have been to obliged innocent surrender persons, goods

.true and this money owner’swithout remedy paid; especially merchants, true of and commission who have made advan- auctioneers ces upon goods which to surrender compelled owner. But these are hazards to which in business rightful persons are continually exposed. This nor, shows, so far was as the case inn-keeper, stable, he the of a and was therefore livery keeper boarding under no to take these obligation horses from Robinson to board. Why, then, should not the of caveat universally vendees and even to the common car- applied personal property, rier, be ? to in applied plaintiff Why he not be required examine the title of Robinson to these other as well persons of business be departments required to examine the title of those from whom ? The although common purchase obliged from receive the true owner for is not carriage, receive them unless his charges are nor to receive them at all paid, and if he has no wrong-doer; lien rightful owner from the goods received much less it would seem receive who under no ought compulsion obligation did these but receive them to have a voluntarily, thereon was their owner. rightful claim to have a these horses is virtue statute, and not at common*law. As who undertook to them, had no to do so, the defendant was entitled toa verdict. The verdict must therefore be set aside, and, according case, there must be provisions

Judgment for defendant. Winn v. Thomas. March 13, 1875.

A note a debtor to induce his deed, creditor to given by sign composition without the of the other are knowledge creditors parties

deed, void, and it will make no illegal the note is creditor, third given party, pays amount to such having- of all the circumstances. knowledge

Such note illegal void cannot be the consideration of a new

promise. Assumpsit on a promissory note, dated $2,500. July Defence, and fraudulent illegal consideration. Trial Rand, before The material facts are follows: notes chusetts. Either assign- refer said and the party mortgages in that said Robinson ment came with said the evidence argument. appeared Malden, to Nashua from about December horses and made a with to board these horses at 1873, seven dollars contract the plaintiff until week: the horses remained at said per Sargent’s said 25,1874, March when were taken the defendant under said until a few mortgages: Sargent’s, and, Robinson boarded at said taken, before the horses were used the horses wood days and timber for the and some- one plaintiff Humphrey, partners, times twice week in out and once evening the driving parties, horses, said while so the fed driving town-meeting: using horses, and took most of the of them. all said time the During care at night, use, when so in were the barn of the kept plaintiff, and he and took of said barn. There them food care supplied tak- was evidence to show that for a few to the tending days previous of the had in his horses the them exclusive ing boarded he plaintiff them, them, and took for which the exclusive care of sole ; received no and that said few Sargent Humphrey, pay Robinson, and taken, before the horses were settled with said days of his board, found after him with his the board own charging brother, a sled, him, they and small sums had money advanced dollars, them; him still fourteen which he owes he overpaid nearly then ceased said horses. using working horses, In the de- before the January early February, taking went to at but Nashua, Sargent’s, fendant said saw the horses Sargent’s of their until the he took them. nothing day being mortgaged A demand mortgage was made the defendant Robinson for the the debt, which was not The court instructed the jury one, if to the mortgagee there was was plaintiff, the prior right under that the lien would be created favor the mortgages; if were en- plaintiff against the defendant’s mortgages, entrusted, trusted to used in boarded that word The court requested by ordinary meaning. if had the defendant instruct the said Robinson jury pos- session use of said v'hile boarded kept were at such time would lose his lien because the Sargent’s, during Sargent should be such possession but the court Sargent during keeping; declined, already given. instruction repeated court also instruct the jury the defendant to requested by find that there was no evidence in which the the case upon jury boarded; that the horses were to the but the court found a and assessed declined. verdict jury said at amount damages 1116.00, due for board plaintiff' liorses. v. USHER. SARGENT 1875.] and instructions ruling excepted The defendant for the opinion superior transferred case is reserved and full for the amount the be maintained If action can court. verdict; to be rendered board of judgment defendant; for the is to be rendered said board, for no if judgment is to settlement, there -for board days’ subsequent the few unless the board, value of parties to ascertain the be new trial can the value. agree upon for the defendant. Parker, A. Stevens W. Sawyer, for the Wallace, Passett, plaintiff. Wadleigh with it carrying J. The general property Ladd, virtue of the mortgages, in the defendant