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keeping the horse, and he may detain the animal until his proper charges are paid; he occupies a position, in the premises, similar to that of the trainer or horse-breaker, and the statements of the legal principles involved, hereinbefore made, are equally applicable to the person who, by his skill, saves the health, usefulness, or life of the animal, as they are to the owner of the stallion, or the breaker or trainer of horses; by the skill and care of the veterinary surgeon, strictly speaking, the value or usefulness of the chattel is not created, but it is preserved, and restored when it would otherwise be lost. Like others, who have such liens, the surgeon must guard his possession of the

as such for gross ignorance or gross negligence, and hence the instruction was

erroneous.

1 Rodgers v. Grothe, 58 Penn. 414. This was an action of repletin for a horse; the plaintiff delivered the horse, when it became sick, to one Beam, to cure, under an agreement to pay $10, and $1 per month for pasture, and other feed at cost; plaintiff found the horse in possession of defendant, who showed, on the trial, that Beam took the horse from plaintiff under this agreement, kept him a month, could not cure him, notified plaintiff of that fact, and desired him to pay charges, as per contract, and take the horse away; that plaintiff did not comply with this demand, but left the horse a long time with Beam; that Bcontinued to treat and care for the horse, through this period of several months, and again notified plaintiff to pay charges and take his horse; that plaintiff did offer to pay Beam a sum less than was due, and take the horse, but B did not accede to the offer, and having been unable to get his pay from plaintiff, and having given notice to plaintiff that unless payment of his just charges was made he would sell the horse, Beam afterward did sell the same to defendant for full value. Upon these facts, the Court held that a lien existed in favor of the successor in interest of the bailee, and rendered final judgment in favor of defendant; but as this case measurably turns on the construction of a local statute, the deduction of general principles from the decision requires a consideration of the opinion, which is as follows: "At the common-law, the lien of a bailee for service lasts only while he retains the possession. His relation to the bailor, the owner of the chattel, is a personal one, and grows out of the confidence the bailor is presumed to repose in the skill and fidelity of his bailee, when intrusting his property to him, for the service intended to be performed upon or toward it. The law implies a contract, on the part of the bailee, to perform the service skilfully, and then return the chattel faithfully, on payment of his service. Hence, if he sell, or pawn it away, he is guilty of a breach of his fidelity to the bailor, and at once forfeits his right of lien. The authorities cited by the defendant in error clearly show this to be the law, and, so far, the learned judge (who acted in the Court below as nisi prius) would have been justified in his rulings. But when the Act of 14th December, 1863, (Purdon, by Brightly, 1344) gave to the bailee the power to sell the property at auction, in order to enforce his lien, it introduced a change in the relation of the parties which relieved the bailee from the duty that required constant possession as the means of enforcing his lien. The property in his hands then became a security for his claim, with the means of enforcing payment. The property was thus capable of transfer to any one who would bid for it in the due course of procedure, and of conversion

horse, as his lien depends on that, under the common-law rule that the lien of a bailee for service only lasts while he retains possession.

§ 142. Farriers occupy, toward the owner of animals sent to them to be shod, substantially the same relation, as to duties, responsibilities, and advantages, as do horse-trainers and veterinary surgeons; they may not, unreasonably, refuse to shoe a horse, because, where a man takes upon himself a public employment, he is bound to serve the public as far as his employment goes, or an action lies against him for refusing.1

His remuneration is a matter of contract, and where there is

into money. The relation between the parties was thus changed in its most important and peculiar feature. But in this case the bailee did not pursue the act of assembly, by making a public sale, after due notice to the owner to come and take away his horse, and pay the charge upon him. The sale, it is very certain, did not carry the title, and left the defendant, who was the purchaser, unprotected against the demand of the plaintiff, as the owner of the horse, in an action of replevin; and this brings us to the only substantial question in the cause. The defendant claimed the benefit of the lien of the bailee, and the right to retain the horse until payment of the bailee's charges, and for this purpose offered to prove that after the bailee gave notice to the plaintiff to pay his charges, and after waiting the sixty days required by the act, the bailee 'transferred the horse, with all his claims upon him, to the defendant, for full value.' This offer the Court rejected, on the ground of irrelevancy. Though right under the common-law, we think the Court erred in view of the change in the relation wrought by the statute. The property in the hands of the bailee being now a security for the payment, with the means of procuring satisfaction by a sale and conversion, the reason of the common-law rule has ceased. There seems to be now no good reason why a transfer of the debt or charge for the property, together with the possession of the property, should not effect a substitution of the purchaser to the right of the bailee to receive the money, and to retain the security until payment, where the sale and transfer have been bona fide, and there has been no fraud or abuse of the owner's property. As the owner of the charge, the purchaser is capable of giving the owner of the property a sufficient receipt or acquittance for the debt, and has in equity the same right to proceed regularly to demand payment, and to enforce it by a sale in due course of law, after notice, as the bailee had originally. The rights of the owner of the property remain unchanged. He is bound only for the charge as it existed in the bailee, and can demand and receive his property from the purchaser precisely on the terms he could do if his property yet remained in the bailee's hands. In the absence of fraud or removal of the property out of reach, or any other act of abuse of the original relation of bailment, there seems to be no equity in permitting him to recover without doing equity by paying or tendering the charge, which is a lien on the property. We are of opinion that the Court below erred in ruling out the defendant's offers. These remarks sufficiently indicate the principles upon which the case should be retried."

1 Lane v. Cotton, 1 Salk. 18.

no special agreement, he must go upon a quantum meruit; the local usage as to price is the general measure of his compensation, as, from the constant demand for his service, a custom as to charge becomes unavoidable, and the contracting parties are presumed to know the custom.

The farrier, in taking a horse to shoe, by implication, under the law, contracts to do the work in a proper manner, is bound to possess and exercise the requisite degree of skill and care, so to do; and if he prick a horse, or otherwise injure him in shoeing, an action lies against him to recover the damage done, unless the farrier is able to show that the accident occured through no lack of skill or care on his part, or that of his employee, in doing the work.1

12 Chitty's Plead. 262; Rex v. Kilderly, 1 Saund. 312, N. 2; Everard v. Hopkins, 2 Bolster, 332; Longmead v. Holliday, 6 Ex. 764; Collins v. Rodway, an unreported case before Chief Baron Pollock, at Nisi Prius, 1845.

In this case, an action was brought against a farrier for unskillfulness in the shoeing of two horses, sent by the plaintiff to be shod at defendant's forge, which he carried on for the purpose of shoeing horses with a shoe for which he had a patent. The one, a gray mare pony, was sent on the 16th of July, in the evening, after working hours, and was shod at the particular request of plaintiff's father. On the 17th, she was driven, with two men in a gig, to Barnett, and, it was admitted, for three miles went well. On the 20th the shoes were taken off by the apprentice of Beck, another farrier. On the 21st, the defendant received notice of her lameness, and, on the 26th, after her feet had been cut about and poulticed, she was reshod by Beck, and afterward worked. It appeared that subsequently she had been turned out for nine weeks. The other horse, a black pony, was sent to be shod on the 18th of July. On the 21st, the shoes were taken off by Beck, and blood was said to have followed the withdrawing of two of the nails. It was admitted that this pony's feet were very thin and bad, and his action very high. What was done to this pony did not appear, but he had been under the care of a veterinary surgeon, and was finally sold for a small price. The defendant's case rested on two grounds: First-That even if the ponies were lamed by him in shoeing, he was not liable, because he had brought to the performance of that duty competent skill and reasonable care. Secondly-That the lameness of the other resulted from causes other than defendant's shoeing.

In summing up, Chief Baron Pollock said to the jury: "The only rule of law that I feel it necessary to lay down upon the subject in this case is, that if this operation has been performed unskillfully and improperly, the defendant is liable to the plaintiff for any mischief that may have resulted from such unskillfulness, but he is liable only to the extent to which mischief has been produced. The rule I take to be this: that a person employed for any purpose must bring to the subject-matter a reasonable skill and fitness, and he must exercise that reasonable skill and fitness with due and proper care. If he be deficient in the requisite skillfulness, and, in consequence of that, the operation is performed in a bad or bungling manner, or if, having the requisite skillfulness, he fails to bring it to act, he is liable for any mischief which results from that." (14 Veterinarian, 102.)

If a horse be injured, in shoeing, by the negligence of the farrier's servant, or by reason of his want of skill, the master is liable, because the employer, the proprietor of the farrier's shop, in holding himself out to the public to do work of the special character indicated, at his place of business, induces the owner of the animal to bring him there to be shod, and is the cause of the horse being intrusted to the careless or unskilled workman.1

But if the wrong be willful, as if the servant maliciously drove a nail into the horse's foot in order to lame him, the master would not be liable; he is bound to see that his workmen possess the requisite skill; this he has means of ascertaining, and so, with safety, placing himself in a position wherein he guarantees his abilities, but he cannot guard against malice, or actions instigated by motives of which he can have no knowledge, and for these, therefore, he should not be called to answer.2

§ 143. The farrier has a lien for his charges in shoeing upon the animal left with him for that purpose; this lien, like that of trainers, the owner of the stallion which has served a mare, the veterinary surgeon who has saved or restored to health a sick or injured horse, results from the general principle above enunciated, that where chattels are intrusted to one of a special trade, calling, or pursuit, to be by him worked upon in such manner as to develop or preserve its natural usefulness, or to increase, by his labor and skill, the especial value of the property, the person who does the work should and may look to the chattel upon which he has operated for his remuneration, rather than be forced to trust to the honesty or pecuniary ability of his employer.

Hence, it results that where, from the nature of his employment in a specified calling, such as a horse-shoer at a forge in a public place, a person is obliged, at reasonable times, to hold himself subject to the demands of such as require his services therein, the person who does the work may retain the chattel until his charges, they being fair, are paid.3

11 Bl. Com. 431; Randleson v. Murray, 8 A. & E. 109.

2 Jones v. Hart, 2 Salk. 440.

8 Lane . Cotton, Ante; Bacon's Abr. Trover, (E) 816, in which it is said that trover does not lie against a farrier for refusing to deliver a horse which he has shod, unless the money for shoeing has been paid or tendered.

The animal can only thus be kept for work done at the time when the lien is claimed. The lien cannot be claimed for a former bill or previous account, even for shoeing the same horse.

The rule, as we have already seen, is that if the person who claims the lien permits the animal to return to its owner, if he parts with the possession, he loses his lien; and hence it results that, his lien as to the previous charges having lost its vitality, it cannot be revived by a new employment.1

Scarfe v. Morgan, 4 M. & W. 280; Chase v. Westmore, 5 M. & S. 189. "Because the artificer to whom goods are delivered for the purpose of being worked into form, the farrier by whose skill an animal is cured of a disease, the horsebreaker by whose skill a horse is rendered manageable, and the man who covers a mare with a stallion, have liens on the chattels in respect of their charges." 1 Rashforth v. Hadfield, 7 East, 229; Oliphant's Law of Horses, p. 237. "But the horse can only be kept for work done at that particular time, for the lien does not extend to any previous account; and when this point was decided by the Court of Queen's Bench, Lord Ellenborough said: 'Growing liens are always to be looked at with jealousy, as they are encroachments on the common law.""

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