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

COLERIDGE, J.
PATTESON, 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 lieni

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 accorilingly.

The facts appeared to be as follows. The horses were seized under *681]

a fi. fa. on a judgment obtained by the *defendant against

Worley, to whom they belonged. The plaintiff kept training stables; and the horses were sent to him by Worley, to be trained and

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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. Cummins, 5 M. & W. 342,+ where it was held that there is no common

[*682 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 x. 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,

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(a) Lord Denman, C. J., COLERIDGE, Wightman, and Erle, Js.

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as here, the horse trained was a race horse. The *point arose,

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 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. 743,7 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 *681]

exclusive possession and control of them up to the moment of

*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

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keeper; for it is immaterial whether the owner's possession be more or less, if he has a right to assert it at all, and to interrupt the possession of the party claiming the lien.

*PATTESON, J.--I have no doubt, that according to the general principles of lien, and independently of contract or usage, which

[*685 may qualify any particular case, a trainer of race horses employs that sort of skill and labour which would entitle him to a lien. But this is not the only consideration; to complete the right of lien there must be the continuing right of possession. Whether there is such a right of possession in any case must depend on the nature of the particular contract or custom applicable to the subject matter. Here it appears that the owner of the horses might send them to be ridden by a jockey of his own choice at any race he chose. The trainer could not refuse to deliver them to the owner for this purpose. This state of things is inconsistent with a lien : the trainer, as to the right of uninterrupted possession, was on the same footing with a livery-stable keeper, who, it is admitted, has no lien. An innkeeper's lien stands on a different principle; he has a lien on the guest's horse, because the law obliges him to take it in. My brother PARKE's view of the trainer's lien, as stated by him in Jackson v. Cummins, 5 M. & W. 350, 351,+ exactly supports our decision, which is also quite consistent with his observation in the same case, that, where a horse is to be trained for a specified race, the trainer may have a lien for his charges until the horse is given up.

COLERIDGE, J.-I also have no doubt that the skill and labour of a trainer are a good foundation for a lien; because he educates an untaught animal, and otherwise adapts it for a particular purpose, and thereby greatly improves its value. But it is a well established principle that, without the right of continuing possession, there *can be

[*686 no right of lien. Now a good test of the existence of such right of possession is to consider in whose possession the race horse is when it is employed in doing that for which it has been trained. The evidence showed that the horse, during the race, was in the owner's possession, and in his possession rightfully and according to usage or contract. The horse, before the race, is placed for convenience in the stable of the trainer; but during the race it is in the care of the jockey nominated by the owner. It appears too that, if, on any occasion, the jockey were selected by the trainer, the trainer, pro hâc vice, would have only the delegated authority of the owner. I think it is part of the understanding that the owner shall have the possession and control of the horse to run at any race.

This is quite inconsistent with the trainer's continuing right of possession.

ERLE, J.—The principles which govern this case are clear. A trainer of race horses has the benefit of one general principle, that the person exercising care and skill in the improvement of a chattel is entitled to a lien on such chattel for his charges in respect of his care and skill.

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But there is another general principle; that, in order to complete a right of lien, there must be a continuing right of possession; and this principle defeats the claim of lien in the present case. It is quite clear upor the evidence that the owner was entitled to have his horses re-delivered to him for the purpose of running at any races he pleased : and this is quite inconsistent with the trainer's right of continuing possession.

Rule absolute.(a) (a) The argument on this day, and the judgment, are reported by H. Davison, Esq.

It is the very essence of a lien that the per- by him until he is paid for his labour, or parts son claiming it has the possession of the chat- with the possession, pursuant to the terms of the tel upon which the lien is claimed to operate. agreement. Moore v. Hitchcock, 4 Wend. 292. Jordan v. James, 5 Ham. 88. A factor loses his Where a person has a lien on certain articles lien on the goods of his principal by tortiously for work done upon them, a delivery of the arti. pledging them. Jarvis v. Rogers, 15 Mass. cles without his consent does not affect his rights. 389, 396 ; Holly v. Huggeford, 8 Pick. 73. An Partridge v. College, 5 N. Hamp. 286. artisan has a lien upon the article manufactured

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*SCADDING v. LORANT and PATRICK.

[Feb. 3, 1847.]

By the St. Pancras select vestry act, 59 G. 3, c. xxxix. s. 69, the vostrymen, or any seven or more

of them, were empowered and required from time to time to meet for the purpose of making a poor rate, notice of such meeting and the purpose thereof being first given, and at such meeting or meetings to make one or more rates for relief of the poor, &c.; and all such rates, when signed by the said .vestrymen or any seven, &c., and allowed, &c., by two justices, were to be collected, &c. By sect. 4 the vestrymen were authorized, at any meeting, to adjourn themselves to meet at such future time and such placo as they should appoint, &c.; notice of

such adjourned meeting being given to every vestryman. An avowry for a distress under warrant to levy a poor rate for St. Pancras stated : That a restry

meeting was held on 12th August, 1839, for the purpose of making a poor rate, notice of such meeting, and of the purpose thereof, having been duly given : That, at such meeting, a certain poor rate was unanimously agreed upon and made : That; after the making of the said rate, to wit, on 14th September, 1839, a certain other meeting of the vestrymen was held, the vestrymen assembled at the former meeting having adjourned themselves to meet on this day, and notice of the said adjournod moeting (not adding, "and of the purpose thereof”) having been given to every vestryman. That, at such last-mentioned meeting, the rate so agreed upon and made at the former meeting was signed by eight vestrymen who had been present at such former meeting. It was also averred that, after the making of the said rate, a special meeting of the vestrymen was summoned (with proper notice), and held on 28th August, 1839, and at such meeting (the same being the next meeting subsequent to that first mentioned) the said rate, 80 agreed upon and made at the first meeting, was confirmed by the vestrymen present

Allowance and publication of the rate were also averred. Replication, De injuriâ. It was proved that, at the meeting of 12th August, notice of which, and of the purpose, bad been

duly given, the vestry resolved that a poor rate of 18. in the pound be made and laid, &c., "and the said rate is hereby made and laid accordingly:" but nothing was done beyond passe ing such resolution; and the vestry adjourned to September 4th, when they met for other business and adjourned to the 9th, when they again transacted other business and adjourned to the 14th. Notice was given of all the adjourned meetings, but not of the purpose of any of them. A meeting was duly held in the mean time, on the 28th August, not by adjourn. ment, but by special summons, authorized by the local act, for business relative to the work. house; and the minutes of the vestry meeting at which the rate had been resolved upon were then confirmed, as stated in the avowry. On September 14th, it was resolved that the rate books, which had been made out since the former meeting, should be signed by the res. trymen, and they signod the books, by writing their names at the foot of the declaration required

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