Waiver of lien.

a right to be indemnified against the bills which he accepted, and that the principal having satisfied those bills, was entitled to have back his goods from the pawnee, without paying the amount for which they were pledged."

Where A., a factor, accepted a bill of exchange for B., ou an engagement by the latter to consign goods to him for sale: and B., in fraud of his engagement, subsequently consigned the goods to C., who, without the knowledge or concurrence of B., and without having made any advances on the goods himself, transferred the bill of lading to A., with directions to sell the goods for the benefit of B.; held, that A. did not thereby acquire a lien on the goods for the amount of his acceptance, and that he could not maintain trover against a creditor of B., who seized the goods under a foreign attachment.b

A party waives his right of lien, if upon being applied to to deliver up the goods, he claims to retain them on a different ground than that upon which he rests his claim of lien. So where A. having repaired a carriage for B., allowed him to take it away from time to time; held, that he could not afterwards detain it for the amount of repairs, nor upon a claim for standage without an express contract to pay for standage, unless the owner left it upon the premises beyond a reasonable time after notice.d

But a person does not waive his lien by the mere fact of his omitting to state that he claims to retain the goods in that right when they are demanded; nor is it sufficient evidence of a waiver of his lien, that he bought these goods with others, which he also refused to deliver up, although he had no lien on *1499 *them, the same as to the whole being void. Therefore, where

A lien is divested

by a complete deli

very.

the defendant had a lien on cloths purchased from a trader, after an act of bankruptcy, and on their being demanded by the assignees, refused to give them up, saying "he might as well give up every transaction of his life;" held, that this was no waiver of his lien, and that it was not merged in the purchase.e

A party waives his lien by parting with the possession. So if a party takes the goods in execution at his own suit, he waives his lien. So, goods are divested of a lien by a complete delivery, which is a question for the jury. Where several goods belonging to one owner, are carried the same voyage, a delivery of part does not defeat the lien upon the remainder for the whole freight.s But where the plaintiff sold timber to

a Fletcher v. Heath, 7 B. & C. 517. (14 Eng. C. L. 94.)

Bruce v Wait, MS. Coram Tindal, C. J., Sum. Ass. 1837. A rule to set aside a nonsuit afterwards refused by the Court of Exchequer.

Boardman v. Gill, 1 Camp. 410, n.

d

Hartley v. Hitchcock, 1 Stark. 408. (2 Eng. C. L. 447.)

White v. Gainer, 9 Moore, 41. 2 Bing. 23. (9 Eng. C. L. 302.)

f Jacobs v. Latour, 5 Bing. 130. (15 Eng. C. L. 388.)

Bernal v. Pim, 1 Gale, 17.

B. felled on land occupied by A., at so much per foot, and the timber was measured; and B. carried away part of the trees, and marked the remainder; held, that the plaintiff had no lien on the remaining part for the price of the whole, for the delivery was complete. By the custom of trade in Liverpool the transfer of a delivery order from the vendor to the vendee of the goods enables the latter to go into the market and dispose of such goods. Where the vendee had thus disposed of part which had been delivered according to his order, and he then became bankrupt, the rest of the goods remaining in the warehouse of the vendor; held, that the latter was entitled to retain them; the giving of the delivery order not operating as between the original vendor and vendee as a complete transfer of the goods. If goods upon which a party has a lien are taken away by undue means, the lien revives on his recovering possession of them.

A lien is not destroyed, though the demand out of which it arises is barred by the statute of limitations. If a party who has a lien on a chattel abuses it, or wrongfully parts with it, *the owner's right thereto is revived, and he may maintain *1500 trover for it against the holder.

SECTION XI.

EVIDENCE AND DAMAGES.

THE evidence in this action must depend upon the issue raised by the pleadings. Under a plea of not guilty the plaintiff will be required to prove only a conversion in fact, and the value of the goods.

Where a party who was employed by the plaintiff to discount a bill misapplied it in discharge of a debt of his own; held, that he was a competent witness for the plaintiff in trover against the party to whom it was wrongfully transferred, for he stood indifferent between the parties. Where a demand of the goods in question was made under the authority of a power of attorney, which was not disputed; held, that it need not be produced.s

To support a plea of the statute of limitations in trover, by showing a conversion more than six years before action

The da

mages to

be recovered is

brought, the defendant must either prove an actual conversion in fact, or give evidence of a positive and absolute demand and refusal before that period."

With respect to the damages to be recovered in this action, the general rule is, that the value of the property at the time of the conversion, or at any subsequent time, may be awarded the value by the jury at their discretion. (1) If the goods have been reof the pro- turned to the plaintiff the practice is, in ordinary actions of trover, to give merely nominal damages; but if an actual the time of damage has been sustained, which was the necessary consequence of the conversion; as if the action be for riding the *1501 plaintiff's horse, damages may be recovered notwithstanding the chattel is returned.d

perty at

the con

version.

Damages.

Where the goods had been delivered to the plaintiff and accepted by him unconditionally after the action had been commenced; it was held, that he could not recover more than nominal damages, particularly as no special damage was alleged in the declaration, and the damages sought to be recovered were not the necessary consequence of the conversion; for the plaintiff was not bound to accept the goods, he might have proceeded with his action. In trover for a bank note, the acceptance of part of the produce does not affirm the taking so as to waive the tort, but the amount received will go in reduction of damages. In trover against a sheriff for a wrongful sale, the jury may deduct, in their estimate of damages, the expenses of the sale; but in estimating the damages the jury are not bound by the sum at which the goods sold, they may allow what they consider to be the real value of the goods."

Where the defendant lent money at usurious interest to the

Philpott v. Kelley, 4 Nev. & M. 611. 3 Adol. & Ellis, 106. (30 Eng. C. L. 40.) 1 Har. & Woll. 134.

Mercer v. Jones, 3 Camp. 477. Davis v. Oswell, 7 C. & P. 804. (32 Eng. C. L.)

Greening v. Wilkindon, 1 C. & P. 625. (11 Eng. C. L. 490.) By 3 & 4 W. IV, c. 42, s. 29, the jury may give damages in the nature of interest over and above the value of the goods at the time of the conversion.

Per Tindal, C. J., in Moon v. Raphael, 2 Bing. N. C. 310. (29 Eng. C. L. 347.) 1 Hodges, 293. Quære, whether special damage should be alleged in the declaration, to enable the plaintiff to recover it. Id. In Davis v. Oswell, supra, Parke, B., held. that if special damage be laid in the declaration, the plaintiff may recover it, together with the value of the chattel in question.

Moon v. Raphael, supra. See Sydes v. Hay, 4 T. R. 260. Sippora v. Bassett, 12 Vin. Ab. tit. Ev.

Burn v. Morris, 2 C. & M. 579.

Clarke. Nicholson, 1 C. M. & R. 724. 1 Gale, 21.

h Classpoole v. Young, 9 B. & C. 696. (17 Eng. C. L. 474.) See Whitehouse v. Atkinson, 3 C. & P. 344. (14 Eng. C. L. 339.)

(1) (The value of the goods is the ordinary measure of damages, but the jury may go beyond it. Harger v. M'Mains, 4 Watts, 418. Where the action is for bonds, the measure is the amount which may be recovered on them. Romig v. Romig, 2 Rawle, 241. In trover for a promissory note, the jury are not confined to the principal of the note with interest, but may give damages beyond this, where there has been an outrage in the taking or vexation or oppression in the detention. Taylor v. Morgan, 3 Watts, 333.)

plaintiff; to color the transaction, a sale of goods for the amount of the money lent was made by plaintiff to defendant, and the goods were transferred; it was agreed that they should be resold to plaintiff at a higher price, if a bill drawn by defendant on plaintiff for the re-purchase money, should be dishonored; the bill was dishonored, and the defendant retained the goods; held, that the plaintiff might recover in trover for the full value of them, without deducting the money advanced on the first pretended sale."

*The court will, in some cases, stay the proceedings on the *1502 restoration of the chattel in question and payment of costs. But if the value of the article be not ascertained, or if the plaintiff claims special damage, the court will not interfere.b

In trover for a packet of letters, the defendant was allowed to stay proceedings, as to one of the letters, upon delivering it up and paying costs.

a

Hargreaves v. Hutchinson, 2 Adol. & Ellis, 12. (29 Eng. C. L. 13.) 4 Nev. & M. 11.

Tucker v. Wright, 3 Bing. 601. (13 Eng. C. L. 64.) Gibson v. Humphrey, 1 C. & M. 544. Mackinson v. Rawlinson, 9 Price, 460. Whitten v. Fuller, 2 Bl. 902. Olivant v. Berino, 1 Wils.

Earle v. Holderness, 4 Bing. 462. (15 Eng. C. L. 41.) see Brunsdon v. Austen, 1 Tidd's Prac. 571. B. N. P. 49. 1363.

1 M. & P. 254. And Fisher v. Prime, 3 Burr.

Remedy for a

breach of

warranty.

warranties

*CHAPTER XXIV.

WARRANTY OF HORSES.

THE nature and effect of a warranty on the sale of goods in general having been considered in former parts of this work, the following observations will be confined to a warranty on the sale of horses.

If a horse, upon being sold, is warranted sound, or as pos sessing any particular quality, as quiet to ride or drive, and afterwards proves to be unsound, or devoid of such quality, the purchaser may maintain an action of assumpsit or on the case upon the warranty against the seller; the former is, however, the more usual, and a preferable remedy. To maintain this action there must be an express warranty or fraud on the part of the seller. No price, however high, will imply a warranty. Construc- No particular form of words is necessary to constitute a wartion of ranty; the general rule is that whatever the vendor represents at the time of the sale is a warranty.(1) An assertion by the vendor of a horse, in the course of conversation and dealing, and before the bargain was complete, that the vendee might depend upon it that the horse "was perfectly quiet and free from vice," is a warranty to that effect." And where the vendor at the time of the sale said, "I never warrant, but he is sound as far as I know;" held, to be a qualified warranty on which the purchaser might maintain an action, if he could show that the horse was unsound to the knowledge of the *1504 vendor. Where there was a written warranty in these terms, "to be sold, a horse five years old;-has been constantly driven in the plough-warranted;" held, that the warranty applied to the soundness only. So, where the contract was in these words," Received of Mr. B. 107. for a grey four year old colt, warranted sound in every respect;" held, that the warranty was restricted to the soundness, the age being matter of description or representation only, by which, in the absence of fraud, the seller was not bound; and where the vendor not knowing the age of the horse, but having a written pedigree,

See ante, 95. 1077.

b Williamson v. Allison, 2 East, 446.

• Parkinson v. Lee, 2 East, 322. Le Neuville v. Nourse, 3 Camp. 351. a Cave v. Coleman, 3 M. & R. 2.

Wood v. Smith, 5 M. & R. 124. 4 C. & P. 45. (19 Eng. C. L. 267.) 'Richardson v. Brown, 1 Bing. 344. (8 Eng. C. L. 339.)

Budd v. Fairmann, 8 Bing. 48. (21 Eng. C. L. 217.) 5 C. & P. 78. (24 Eng. C. L. 221.) Geddes v. Pennington, 5 Dow. 164. Buchanan v. Parnshaw, 2 T. R. 745.

(1) (Whether what was said amounted to a representation of soundness, or to a mere expression of an opinion, belongs to the jury to determine. Whitney v. Sutton, 10 Wend. 411.)