refreshment, boarding house or lodging house, is situated; or in case there is no newspaper published in such municipality, in a newspaper published nearest thereto (65). The notice must state the name of the guest, boarder or lodger, the amount of his indebtedness, a description of the baggage or other property to be sold, the time and place of sale, and the name of the auctioneer; and after the sale the innkeeper, boarding house keeper or lodging house keeper, may apply the proceeds of such sale in payment of the amount due to him, and the costs of such advertising and sale, and must pay the surplus (if any) to the person entitled thereto on application being made therefor (66).

The obligations of the keeper of a café or restaurant, as regards the effects of guests, are in Quebec province similar to those of an innkeeper (67).

Waiver of lien.-If an innkeeper allows a guest to depart with his goods while indebted to him, he thereby gives him credit, and he cannot afterwards detain them on their return to his inn as against a third person owning the same, except for debts which arose after the goods were returned (68). But if the goods over which the innkeeper has a right of lien are the property of the guest and the latter removes them after such right has accrued, but afterwards returns bringing the goods with him, the right of lien will revive (69).

An innkeeper who accepts security from his guest

(65) R.S. Que. 1888, art. 5820.

(66) R.S. Que. 1888, art. 5820; Civil Code Que. art. 1816a.

67) Dunn v. Beau (1897) 11 Que. S.C. 538.

(68) Hartley v. Hitchcock 1 Stark. 408; Jones v. Thurloe 8 Mod.

172.

(69) Huffman v. Walterhouse (1890) 19 Ont. R. 186; Mulliner v. Florence 3 Q.B. D. 484.

for hotel charges does not necessarily waive his lien by so doing (70).

A hotelkeeper who seizes his guest's baggage by locking up the room assigned to the guest does not, by afterwards granting permission to the guest to remove some specified articles and by allowing him free access to the room for that purpose, abandon such seizure and detention as regards the other effects; and the owner who removes any baggage as to which the permission does not extend is guilty of stealing the same under sec. 306 of the Criminal Code of Canada (71).

(70) Angus v. McLachlan 23 Ch. D. 330.

(71) The Queen v. Hollingsworth (1886) 2 Can. Cr. Cas. 291, per Rouleau J. (N.W.T.)

CHAPTER XIV.

LIENS ON HORSES AND CATTLE.

Subject to what liens.- Horses and cattle may be,. as chattels, the subject of various classes of liens; but those to which special reference will be made in this chapter are the liens of livery stable keepers, horse breeders and agistors of cattle. Livery stable keepers and agistors of cattle have no lien at common law for the keeping of horses or cattle (1); but they may have for charges for exercising and training a horse to run at races, or the like special services (2). And the owner of a stallion has a lien upon a mare for the charge for serving the mare (3).

A livery stable keeper does not come within the rule giving a lien for the benefit of trade, nor is it considered that the feeding and taking care of the animal imparts any new value to it so as to justify a lien upon that ground (4). Livery stable keepers are not under the strict liability as insurers which the law imposes. upon common carriers and innkeepers; with the latter classes the strict liability is imposed "by reason of the necessity of the thing" (5); but with livery stable keepers, bailiffs, factors and such like, it is considered to be unreasonable to charge any of them with a trust

(1) Jones on liens sec. 641.

(2) Bevan v. Waters 3 C. & P. 520; Forth v. Simpson 13 Q. B. 680.

(3) Scarfe v. Morgan 4 M. & W. 270.

(4) Grinnel v. Cook 3 Hill (N.Y.) 485.

(5) Coggs v. Bernard 1 Smith's L.C. 8th ed. 199, 2 Ld. Raym. 917.

further than the nature of the thing puts it in his power to perform it (6).

His obligation to take reasonable care of the thing entrusted to him involves in it an obligation to take reasonable care that any building in which it is deposited is in a proper state so that the thing therein deposited may be reasonably safe in it (7). A lien may, of course, be created by agreement between the stable keeper and the horse owner (8), but a neglect of any of the duties before mentioned will give rise to a counterclaim for the damages incurred to be off-set against the lien claim.

A horse trainer has a lien for his charge in keeping and training a horse, provided he holds possession of the horse (9), but if the horse be so far under the control of the owner as to be put under the charge of his servants from time to time during the training, there will be no lien, for the reason that such control by the owner deprives the trainer of that continued possession essential to liens (10).

A horse-shoer or farrier is under the like legal obligation to shoe a horse, as a common carrier is to convey goods (10a); and this would appear to entitle him to a lien on the horse, but the right has been

(6) Ibid, per Lord Holt; Readhead v. Midland, L.R. 4 Q.B. 379; Francis v. Cockrell, L. R. 5 Q.B. 184, 501.

(7) Searl v. Laverick (1874), L. R. 7 Q.B. 122.

(8) Yorke v. Grenaugh, 2 Ld. Raym. 866; Orchard v. Rackstraw 9 C.B. 698; Judson v. Etheridge, 1 C. & M. 743

(9) Reilly v. McIllmurray (1898) 29 Ont. R. 167; Bevan v. Waters, 3 C. & P. 520, M. & M. 236; Scott v. Mercer (Iowa) 67 N.W. Rep. 108.

(10) Forth v. Simpson, 13 Q.B. 680.

(10a) Lane v. Cotton 1 Salk R. 17.

doubted in Ontario (106). In the United States it is held that a farrier has a lien for shoeing a horse (10).

Power of sale. A livery stable keeper, with whom a horse is left to be taken care of, is given, in Ontario, a statutory power to sell a horse for its keep only in case he already has a lien on the same. The statute provides as follows:

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"Where an innkeeper, boarding house keeper, lodging house keeper or livery stable keeper has by "law a lien upon a horse or other animal for the price "or value of any food or accommodation supplied to "such animal, or for care or labour bestowed thereon, he shall, in addition to all other remedies provided by law, have the right, in case any part of such price "or value remains unpaid for the space of two weeks, "to seli by public auction such horse or other animal "on giving two weeks' notice by advertisement in a newspaper published in the municipality in which the inn, boarding house, lodging house, or livery “stable is situate, or in case there is no newspaper published in the municipality, in a newspaper published nearest to such inn, boarding house, lodging house, or livery stable, of the intended sale, "stating (if known) the name of the person or persons "who brought such horse or other animal to the inn, boarding house, lodging house, or livery stable, "the amount of the indebtedness, a description of "the horse or other animal, and the name of the "auctioneer; and after the sale, the innkeeper, "boarding house keeper, lodging house keeper, or "livery stable keeper may apply the proceeds therof "in payment of the amount due to him in respect of "food or accommodation supplied or care or labour

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(10b) Nicolls v. Duncan (1854) 11 U.C.R. 332.

(10c) Lord v. Jones 24 Me. 439; Cummings v. Harris 3 Vt. 244.