Leavy v. Kinsella , 39 Conn. 50 ( 1872 )

Seymour, J.

The questions of law in this case are so distinctly stated in the motion for new trial that they need not be recapitulated here. We think the charge of the judge to the jury in regard to the vendor’s lien was correct, but was wrong in regard to the defendant’s lien for keeping.

'The parties differing as to the ownership of the pigs, the plaintiff insists that, pending the dispute, the defendant shall keep them, and he places the property in such condition that the defendant must keep them and feed them, or allow them to suffer.» The plaintiff supposed he had a right to return the property, but it turns out he had no such right. The defendant was placed by the .-plaintiff’s act in such a condition that he was compelled to care for and feed the plaintiff’s animals. The defendant is made a bailee, with the duty of incurring expense, not by his own choice', but by compulsion. Upon these circumstances the plaintiff was liable upon an implied assumpsit to pay the expense of keeping. The keeping is by the plaintiff’s request, clearly implied, if not express.

Now in general all bailees for hire have a lien on the thing bailed for the amount of their compensation, and common carriers and innkeepers have peculiar claims to their liens, because they cannot refuse to incur the expense cast upon them by their customers. And here the defendant may ground his right to a lien upon similar principles of justice and equity. The defendant cannot be regarded as a volunteer. All the circumstances show that he could not do otherwise than he did. It would have been of no use for him.to attempt to return the pigs to the plaintiff, and he was under no obligation to incur the expense and hazard of such an attempt. It was urged by the plaintiff that the finder of goods has at common law no lien for expenses, incurred by him upon the goods found, however needful and however beneficial to the owner, but that case is put by Chief Justice Eyre, in Nicholson v. Chapman, 2 H. Black., 254, upon the ground “ that the finder voluntarily puts himself to the trouble and expense to preserve the thing found, &c.” The distinction between the case before us and that of a mere finder is obvious, and the denial of a lien to the finder rests upon reasoning which, supports and confirms the lien of the defendant.

We therefore advise a new trial.

In this opinion the other judges concurred, except Carpenter, J., who was absent.