It does not appear from the case that any question is made about the validity of the defendant's mortgages, or of his general right to the possession of the property; and, in the absence of any intimation to the contrary, I shall assume that not only the legal right of property, but, as against Robinson, the right of immediate possession, *Page 291 was in the defendant, so that two questions arise in the case. 1. Had any lien been created as between the plaintiff and Robinson, and to what extent? 2. If so, was the defendant bound by it?
It appears from the case that Robinson employed the plaintiff to board the horses at seven dollars per week, and that during a considerable part of the time he was hauling wood and timber for the plaintiff.
There is nothing in the case tending to show that Robinson was in any way employed as the servant of the plaintiff. He was paying for his board as well as for the board of his horses, and the evidence tends to show that he really had the exclusive care and possession of them during all the time that he was hauling wood and timber for the plaintiff.
There was no evidence tending to show that during that time the plaintiff had assumed any care or responsibility about the horses, or, in point of fact, had any possession of them. He appears to have furnished stable-room and food, and nothing more, and Robinson appears to have had the whole possession, care, and exclusive responsibility. I think there was no evidence in the case which tended to show that during this time the horses were, in any just sense, entrusted to the care of the plaintiff. I cannot see any evidence that he during this time any more care or responsibility than he would have had if Robinson had fed the horses in his own barn, taking the hay and grain from the plaintiff's barn. It appears to me, therefore, that entirely independently of the peculiar rights of the defendant in the property, to this extent the plaintiff had acquired no lien.
But it appears, also, that there were a few days during which time the plaintiff had the sole care of the horses, and during which time the evidence tends to show, that, as between the plaintiff and Robinson, the horses were entrusted to the plaintiff, within the meaning of the statute, — Gen. Stat. ch. 125, sec. 2; and the question to be determined is, whether, as between the plaintiff and the defendant, Robinson could so entrust the horses to the plaintiff as to interfere with the defendant's rights.
The general principle seems to be perfectly well settled, that in regard to sales of personal property the buyer cannot shift from himself the responsibility of looking to the title to the property. Caveat emptor, qui ignorare non debuit quod jus alienum emit. It is also settled that the seller cannot transfer to the buyer any right which he does not himself possess, unless the owner of the property has in some way put it in the power of the seller to assume the appearance of ownership and defraud the purchaser; and that merely entrusting a party with the possession by the owner is not such an act, unless he also in some way gives the party the indicia of ownership.
Now there seems no good reason why a party not the owner should be permitted to pledge the property, or create a lien upon it either at common law or by statute, any more than that he should be permitted to sell it. Neither is there any good reason why a person who *Page 292 is about to establish relations with another out of which a lien would be created should not make the same inquiries which it would be incumbent on him to make if he were going to purchase the property. If Robinson had sold the property to the plaintiff, there would seem to be no doubt that the plaintiff could acquire no more right than Robinson had. Does it make any difference that the plaintiff, in making his contract with Robinson for hauling wood, included in it a bargain to board his horses?
It is true that there are some employments of a public nature in regard to which it has been said that the party has from the nature of his employment no opportunity to make inquiry. Thus, in Bacon's Abridgment, title, Inns and Inn-keepers, D, it is said, — "Inn-keepers may detain the person of the guest who eats, or the horse which eats, till payment, and this they may do without any agreement for that purpose; for men that get their livelihood by entertainment of others cannot annex such disobliging conditions that they shall retain the party's property in case of non-payment, nor make so disadvantageous and impudent a supposition, that they shall not be paid; and therefore the law annexes such a condition without the express agreement of the parties." "If A injuriously take away the horse of B and put him into an inn to be kept, and B come and demand him, he shall not have him until he hath satisfied the inn-keeper for his meat; for when an inn-keeper takes a horse into his keeping, he is not bound to inquire who is the owner of the horse which he is obliged to keep, let him belong to whom it will, and therefore no reason that the inn-keeper should be obliged to deliver him till he is satisfied."
So, in the case of common carriers, it has been sometimes maintained that the common carrier, being obliged to receive and carry goods which are brought to him, has a right to retain them till his charges are paid, whether he receives them from the true owner or not, provided he receives them innocently. To which it has been answered, that the carrier is not bound to receive goods until he has first been paid. It appears to me, however, that the weight of authority is in favor of the doctrine that the common carrier cannot acquire a lien more extensive than the right of his employer. 2 Redf. on Railw., sec. 188, and authorities sited. This doctrine is maintained in Gilson v. Gwinn, 107 Mass. 126.
It seems clear enough that the cases of the inn-keeper and the carrier are exceptional, and however the law may be held in regard to them, there would be no reason why an ordinary bailee should not be held by the doctrine of caveat emptor, and I have seen no case in which it is held otherwise. My conclusion, then, is, that Robinson had not by law any authority to entrust the goods to the plaintiff's keeping.
In Jacobs v. Knapp, 50 N.H. 71, it is held that under ch. 125, Gen. Stats., sec. 14, no lien can be created except in favor of the party who contacts with the owner of the property, and I see no reason why the same construction should not apply to section 2 of the same chapter.
It is claimed in the plaintiff's brief that Robinson ought to be *Page 293 considered in law as the agent of the defendant; but I have seen no case in which it has been held that a party, who permits another to have possession of his personal property, by so doing in law constitutes that other his agent to sell or pledge that property.
It is suggested also, in agreement, that the defendant, when he saw the horses at the plaintiff's barn, was bound to have given notice of his claim; but I do not see that anything had been brought to the knowledge or notice of the defendant of any unlawful or dishonest dealing on the part of Robinson, which made it incumbent on the defendant to put the plaintiff on his guard.
It should be added that, by Gen. Stats., ch. 123, sec. 13, the sale or pledging of property situated as this was is made a penal offence, which would seem inconsistent with the idea that such sale or pledge could pass any title to the vendee or pledgee beyond that of the seller or pledger.
SMITH, J. I am also of the opinion, that, in order to create a valid lien under the provisions of sec. 2, ch. 125, Gen. Stats., in favor of one who takes domestic animals to be boarded, they must be entrusted by the owner, or some person having authority to entrust them, for such purpose. It is a universal principle, that a man's property shall not be taken from him without his consent. The general property in these horses was in the defendant, subject only to be divested by payment to him of the amount due upon the debt secured by the mortgages. As the lien claimed by the plaintiff exists under the above named statute, the case is not strictly analogous to that of an inn-keeper or common carrier. Many of the reasons which govern the decisions in those cases, however, will apply here.
In England the law seems to be, that an inn-keeper has a lien on a horse for his keeping, put up by a guest who had come fraudulently by it from the true owner. And this is put upon the ground that the inn-keeper is obliged to receive the guest and his horse. York v. Grenaugh, 2 Ld. Raym. 866; Threfall v. Borwick, Law Rep., 7 Q. B. 711, and cases there referred to.
It is not necessary in deciding this case to inquire whether the English doctrine in regard to an inn-keeper's lien under such circumstances has ever been adopted in this state. The public character of the business of an inn-keeper and of a common carrier may furnish some reason for not applying to them the principle of caveat emptor. But the general current of the authorities in this country is against the rule, as established in the case of the Exeter Carrier, referred to in York v. Grenaugh, supra, of exempting a carrier from the application of the rule of caveat emptor. It is expressly so denied in Robinson v. Baker, 5 Cush. 137, where it was held that a common carrier, who innocently receives goods from a wrong-doer, without the consent of the owner, express or implied, has no lien upon them for their carriage against such owner. Fitch v. Newberry, 1 Doug. (Mich.) 1, is to the same point, and is a case carefully considered, and shows a full *Page 294 examination of the authorities. There are many hard cases, as suggested by Judge FLETCHER in Robinson v. Baker, supra, of honest and innocent persons, who have been obliged to surrender goods to the true owners without remedy for the money paid; and this is especially true of auctioneers and commission merchants, who have made advances upon goods which they have been compelled to surrender to the rightful owner. But these are hazards to which persons in business are continually exposed.
This plaintiff was not an inn-keeper, nor, so far as the case shows, was he the keeper of a livery or boarding stable, end was therefore under no obligation to take these horses from Robinson to board. Why, then, should not the principle of caveat emptor, which is so universally applied to vendees of personal property, and even to the common carrier, be applied to the plaintiff? Why should he not be required to examine the title of Robinson to these horses, as well as persons in other departments of business be required to examine the title of those from whom they purchase? The common carrier, although obliged to receive goods from the true owner for carriage, is not obliged to receive them unless his charges are paid, nor to receive them at all from the wrong-doer; and if he has no lien as against the rightful owner upon goods received from the wrong-doer, much less it would seem ought the plaintiff, who was under no compulsion or obligation to receive these horses, but did receive them voluntarily, to have a lien thereon against the defendant, who was their rightful owner.
The plaintiffs claim to have a lien on these horses is by virtue of the statute, and not at common law. As Robinson, who undertook to pledge them, had no authority to do so, the defendant was entitled to a verdict. The verdict must therefore be set aside, and, according to the provisions of the case, there must be
Judgment for the defendant.