The only question now for the opinion of the Court is, whether the lessor of the plaintiff has such a legal *estate as will enable him to sustain an action of ejectment.

*677]

It appears by the special verdict that the customary lands in the manor are descendible from ancestor to heir, and are held for the joint lives of the lord and the tenant for the time being, at the will of the lord, according to the custom of the manor; and that they pass by customary deed of bargain and sale, and surrender, and admittance thereon.

In 1763, on the death of Richard Sanderson, who died seised, the land in question descended to John Sanderson, his son, who was admitted to hold to him during the joint lives of himself and the lord at the will of the lord according to the custom. John Sanderson died seised in January 1818; on whose death the land descended and came to Richard Sanderson, his son, who, on the 26th February, 1818, was admitted. The form of admittance is set out, whereby it appears that he took the land now in the hands of the said lord, to be granted to the said Richard Sanderson," "to have and to hold" the same "unto the said Richard Sanderson, during the joint lives of the said John Taylor" (the lord), and himself, "at the will of the lord, according to the custom of the said manor." He died so seised on the 23d of August, 1837, leaving Michael Dand his heir, who died in January, 1842, leaving the lessor of the plaintiff his son and heir, and also heir of the last Richard Sanderson. No admittance of either of the Dands is stated.

Had this copyhold been an estate of inheritance, and Richard Sanderson, the person last admitted, been admitted to hold to him and his heirs, no doubt the heir would have a good legal title against all the *world except the lord, because the admission to him and his heirs *678] creates an estate in fee, which continues as long as there is an heir, through any number of descents, and is tantamount to an admission of each heir in succession, against all persons but the lord. But here the admission of Richard Sanderson was only to him during the joint lives of himself and the lord; and on his death the estate absolutely determined, unless the words used in describing the custom, viz. "descendible from ancestor to heir," create some estate or interest which could so descend.

We cannot see how it is possible to give any such effect to those words. The custom of the manor appears to be, to grant estates for the joint lives of the lord and tenant only, not estates of inheritance at all, though the custom may give the heir of the tenant a right to have a new grant from the lord for the joint lives of himself and the lord; and that is, in truth, the meaning of the words "descendible from ancestor to heir."

The case of Doe dem. Hamilton v. Clift, 12 A. & E. 566 (E. C. L.

R. vol. 40), (a) is a direct authority against the right of the lessor of the plaintiff to maintain ejectment before admittance. That was a case in which ejectment was brought to recover a customary tenement of a manor in which the admission was to hold "during the joint lives of the lord and tenant according to the custom of the said manor," which was "that the copyhold tenements of the said manor are held by the tenants thereof, to them and their heirs, by custom of tenant-right, of the lord of the said manor:" and it was held that upon the death of the *ancestor the estate ceased: and, though, by the custom of the [*679 manor, there was a tenant-right of renewal, the heir until admitted had no estate at all in the premises.(b) We find also that in the case of copyholds for lives, if the tenant surrenders to the use of another to whom the lord grants, the estate vests in the lord, and the grantee is in by him, and not by the surrenderor; King v. Lorde, Cro. Car. 204, cited by Scriven, vol. 1, p. 145, 4th ed.; and 6 Vin. Abr. 239, Copyhold (X e), pl. 5. There can be no difference whether the estate of the copyholder for life be determined by his own act of surrender or by his death. The legal estate is equally in the lord in either case, until he grants it out again.

And, as no such grant to the lessor of the plaintiff is found by this special verdict, it appears that this action of ejectment cannot be sustained; and our judgment must be for the defendant.

(a) See pp. 567, 581.

Judgment for defendant.

(b) 12 A. & E. 579 (E. C. L. R. vol. 40).

The QUEEN v. The Inhabitants of BARNSLEY. May 12.

Reported, 12 Q. B. 193 (E. C. L. R. vol. 64).

END OF EASTER VACATION.

CASES

ARGUED AND DETERMINED

IN

THE QUEEN'S BENCH,

IN

Crinity Term and Vacation,

XII. & XIII. VICTORIA. 1849.

THE Judges who usually sat in Banc in this Term and Vacation were Lord DENMAN, C. J.

PATTESON, J.

COLERIDGE, J.
ERLE, J.

FORTH v. SIMPSON. May 23.

The labour and skill employed on a race horse by a trainer are a good foundation for a lien but, if by usage or contract the owner may send the horse to run at any race he chooses, and may select the jockey, the trainer has no continuing right of possession, and, consequently, no lien.

THIS was a feigned issue, to try the question whether the plaintiff had any and what lien on each of three race horses on the 24th of December, 1847. On the trial, before COLERIDGE, J., at the Sussex Spring assizes, 1848, a verdict was found for the plaintiff, leave being reserved to move to enter a verdict for the defendant or a nonsuit; the Court to be at liberty to draw any inferences of fact from the statement on the Judge's notes. In Easter term, 1848, Shee, Serjt., obtained a rule nisi accordingly.

The facts appeared to be as follows. The horses were seized under a fi. fa. on a judgment obtained by the *defendant against one *681] Worley, to whom they belonged. The plaintiff kept training stables; and the horses were sent to him by Worley, to be trained and

kept. From time to time the horses, by the order of Worley, were sent to run at different races. On these occasions, they went under the care of a servant of the plaintiff, and were placed in stables belonging to the plaintiff, of which his servant kept the key. The travelling expenses were paid by Worley. Worley selected and paid the rider at the race. It further appeared that the owner had no control over the trainer as to the feeding and exercise of the horses during the time they were in the trainer's stables: but that, if an owner wished to see his horse gallop, the trainer would not refuse it. The horses were seized on 24th December, 1847, while they were in the plaintiff's stable. The plaintiff claimed a lien of 21. 28. per week, for the time during which they were in his stable, which sum comprehended the charges both for keeping and. for training. The present issue was directed by an interpleader order. The case came on for hearing in Michaelmas term (November 20th), 1848; when The Court (a) called upon

Shee, Serjt., and Bovill, in support of the rule.-There was no lien in this case, because there was no exclusive possession. The owner, according to the arrangement between him and the plaintiff, was to have the horse in his own possession from time to time, as it was wanted for racing. The case falls within the *principle of Jackson v. Cum[*682 mins, 5 M. & W. 342,† where it was held that there is no common law right of lien in respect of the agistment of milch cows, because the owner must have possession of them during the time of milking, and also because no improvement is bestowed on the chattel by the agister. Both reasons apply here. The plaintiff, therefore, in the mere character of a livery-stable keeper, has no lien. And this agrees with what is said in Smith's Compendium of Mercantile Law, p. 507 (4th ed.). [COLERIDGE, J.—Is not a race horse always undergoing improvement by training?] In Sanderson v. Bell, 2 Cro. & M. 304, 311,† S. C. 4 Tyrwh. 244, BAYLEY, B. (after alluding to the cases of Wallace v. Woodgate, Ry. & M. 193 (E. C. L. R. vol. 21), and Bevan v. Waters, Moo. & M. 235, 236 (E. C. L. R. vol. 22)), said: "In the case of the livery-stable keeper, who does nothing to the horse except supplying him with hay and oats, there is no lien; but where work is done by training a horse, there is a right of lien. In the case of a livery-stable keeper who dressed a horse, if the claim for dressing could be separated, in that respect there might be some right of lien; but, if an entire claim compounded of feeding and dressing is set up, it must attach for both." Here the two claims cannot be separated: the case is like that of the rent, in Gardiner v. Williamson, 2 B. & Ad. 336 (E. C. L. R. vol. 22), reserved indiscriminately on a demise, without deed, of two subject-matters, one of which could be demised only by deed. It is clear from the language of PARKE, B., in Jackson v. Cummins, that he thought no lien would arise where,

(a) Lord DENMAN, C. J., COLERIDGE, WIGHTMAN, and ERLE, JS.

as here, the horse trained was a race horse. The *point arose, *683] but was not decided, in Jacobs v. Latour, 5 Bing. 130 (E. C. L. R. vol. 15). In Pearson v. Gingell, 4 Com. B. 545, 558 (E. C. L. R. vol. 56), WILDE, C. J., distinguished between the case of a horse sent to a livery-stable merely to be cleaned and fed, and the case where he is sent to remain during the owner's pleasure, the feeding and grooming being incident to the principal object: in the latter case, the horse may be distrained; not in the former. That seems to suggest a fair analogy to the case of lien: the care here bestowed upon the horse was merely subservient to the custody of the horse for the owner. And this view is confirmed by Judson v. Etheridge, 1 Cro. & M. 743,† S. C. 3 Tyrwh. 954. The utmost that could be claimed for the training would be a lien lasting till the horse was delivered up to run his first race: that would put an end to the lien; and, the training being then complete, there could be no lien in respect of the subsequent keep.

Ogle and Wyatt now showed cause. The position that the care and skill of the trainer of race horses entitle him to a lien is not impugned by any authority; and Bevan v. Waters, where BEST, C. J., ruled in favour of the lien, is not an ordinary Nisi Prius authority, because the case was tried only two days after the same question had been under his consideration in Banc in Jacobs v. Latour. It is sought, however, to avoid this lien, because there was a discontinuance of the trainer's possession while the horses were actually running a race, although he had exclusive possession and control of them up to the moment of *684] *their starting, and resumed such possession and control as soon as the race was over. But they were still in the constructive possession of the trainer just as much as if they had been in the hands of a farrier to be shod. The delivery of the subject-matter of a lien by the creditor to the owner under the terms of their agreement is not an interruption of the creditor's possession; for the owner's possession under such circumstances is the creditor's possession; Reeves v. Capper, 5 New Ca. 136. Besides, a lien revives on repossession; Levy v. Barnard, 8 Taunt. 149 (E. C. L. R. vol. 3), S. C. 2 B. Moore, 34. It is also objected that the lien was waived by detention for the keep of the horses as well as for their training. No such objection was taken in Bevan v. Waters; and, according to the marginal note of that case, and according also to Scarfe v. Morgan, 4 M. & W. 270,† the objection is untenable.

Lord DENMAN, C. J.-I have little doubt that the care and skill employed by a trainer upon a race horse are of such a nature as would, on general principles, give a right of lien. But it is essential to a lien that the party claiming it should have had the right of continued possession. In the present case there was no right of continued possession; for the owner of the horses might, at his own pleasure, have sent them to any race, and to be ridden by any jockey of his own selection. The circumstances of this case, therefore, make it like the case of a livery-stable