"bestowed as aforesaid, and the costs of such adver"tisement and sale, and shall pay over the surplus, if any, to the person entitled thereto on application being made by him therefor " (11). It will be observed that this statute confers no right of lien, but only a right of sale in cases in which the right of lien already exists. An innkeeper undoubtedly has a right of lien upon horses brought to the inn by his guest, but, as has already been noted, the livery stable keeper has no such common law right for the mere keep of the horse, although he may acquire a lien in respect of special services such as horse training. The section above quoted would, however, apply to confer a power of sale upon the stable keeper in cases in which, by contract express or implied, a lien has been created. Waiver of lien. Continuance of possession is indispensable to the existence of a lien at common law, and the abandonment of the custody of the property over which the right extends divests the lien. The lien-holder in such case is deemed to surrender the security he has upon the property, and to rely upon the personal responsibility of the owner. If. however, a sale of the property be made by the owner while it is in the possession of the person holding it under the lien, and without his participation or consent, the sale will not divest it, and the purchaser in that case will take it subject to the incumbrance (12). In the State of New York it has been held that a livery stable keeper waives his lien by transferring his stable to a purchaser and delivering up with the possession of the stable a customer's horse upon which he (11) R.S.O. 1897, c. 187, s. 2 (2). (12) Marseilles Mfg. Co. v. Morgan 12 Neb. 66; 10 N.W. Rep. had a lien, under a new arrangement with the purchaser by which the further expense of keeping the horse was charged by the latter to the customer (13). It was considered that the purchaser became, under such an arrangement, the owner's agent, and that the purchaser's possession was the owner's possession, and this voluntary surrender was a relinquishment of the former stable keeper's lien, which could only be preserved by some understanding made at the time, by which the purchaser was to hold the property for the benefit of the lien claimant and for the preservation of his lien (14). A continuing right of possession of the animal must accompany the services rendered by a trainer for which he claims a lien on a horse which he has trained, in order to render such lien valid; and a trainer who had delivered up possession of a horse which he had been training to the administratrix of the owner from whom he had received it, and who afterwards resumed possession under a new agreement with the administratrix to take care of the horse, was held to have lost any lien he might have had (14a). If the owner agrees by the contract that the agistor. shall have a lien upon the animal, the lien so created will not be lost by the fraudulent removal of the animal from the agistor's custody, and the latter may re-take possession for the purposes of the lien (15). (13) Fitchett v. Canary 38 N.Y. 531; 14 N.Y. Supp. 479. (14) Jones on Liens 2nd ed. 701. (14a) Reilly v. McIllmurray (1898) 29 Ont. R. 167. (15) Wallace v. Woodgate 1 C. & P. 575; Richards v. Symons 8 Q.B. 90. Manitoba Statutory lien of stable keeper. By the Manitoba Stable Keepers' Act" (16) every livery stable keeper and keeper of a boarding or sale stable shall have for the value or price of any food, care, attendance or accommodation furnished for an animal a lien thereon and on any vehicle, harness, furnishings or other gear appertaining thereto or any personal effects of which he holds possession belonging to any person who is indebted to him for stabling, boarding or caring for such animal; and, in addition to all remedies provided by law, shall have the same rights and privileges for exercising and enforcing such lien, in so far as the same may be applicable, as boarding house keepers and innkeepers have under the Manitoba Innkeepers' Act (17). The stable keeper may only exercise the right of detention before the animal, or other effects mentioned, has been removed out of his custody and possession and not afterwards (18). The right of detention has priority, by virtue of an amending Act passed in 1899 (19), over any existing lien, chattel mortgage, bill of sale or other charge or encumbrance of whatsoever nature or kind affecting the animal. If the owner does not reclaim and obtain the release of any such animals and effects within one month from the commencement of the detention, the person detaining may cause them to be sold by public auction, and after paying himself the amount for which he has a lien and paying the costs of sale he shall pay over to the owner of such animals and effects the balance, if any, of the price thereof (20). If the owner (16) R.S. M. (1891), c. 91. (17) R.S. M. 1891, c. 73. (18) R.S. M. 1891, c. 91, s. 3. (19) Stat. Man. 1899, c. 18, s. I. (20) R.S.M. 1891, c. 91, s. 4; Stat. Man. 1899, c. 18, s. 2. cannot be found then the balance is to be handed over to the Clerk of the County Court of the judicial division within which the stable is situate to be kept by the Clerk for one year; after which time, if the owner "do not appear or claim the amount so kept," the same shall be paid over to the Provincial Treasurer, and form part of the Manitoba Consolidated Revenue Fund (21). Unless the animal is sooner released, the stable keeper exercising his right of lien must keep the animal and other effects detained, for the full period of three months before he can legally sell them (22). The same privileges, rights and exemptions apply to persons leaving animals, furniture, vehicles and the gear thereunto belonging to be be kept boarded or cared for at a livery, boarding or sale stable as are made to apply to lodgers and boarders under the Manitoba Distress Act (23); and they will therefore be liable to be distrained for rent due by the stable keeper to his landlord, only to the extent of the charges due to the stable keeper in respect thereof (24). The keeper must have a copy of The Stable Keepers' Act" of Manitoba conspicuously posted up in the office of the stable and in at least two other conspicuous places in the stable (25); and it is only upon compliance with this provision that he is entitled to the benefit of the Act (26); but the copies are required to be posted up only when the horses, etc., are brought to the stable and it is not (21) R.S.M. 1891, c. 91, s. 5. (26) R.S.M. 1891, c. 91, s. 7; R.S. M. 1891, c. 73, s. 8. material that they should be kept posted up through the whole period of detention (27). N. W. Territories Statutory lien of stable keeper. By an Ordinance of the Legislature of the North West Territories (28) it enacted that every livery stable, boarding stable or sales stable keeper shall have a lien on the animals and the vehicle, harness, etc., left in his possession, for the value or price of any food, care, attendance or accommodation furnished for any such animal or effects, and, in addition to all other remedies provided by law, may detain in his custody and possession any animal, vehicle, harness, furnishings or other gear appertaining thereto and the personal effects of any person who is indebted to him for stabling, boarding or caring for such animal (29). And by the interpretation clause of the Ordinance it is declared that the expression "livery stable keeper " means and includes any person who for a money consideration or the equivalent thereof carries on the business of letting or hiring out carriages, sleighs or other vehicles, or horses or other animals, whether with or without a carriage, sleigh or other vehicle, and whether accompanied by an employee of the livery stable keeper or not; that the expression "boarding stable keeper" means and includes any person who, for a money consideration or its equivalent, stables, boards or cares for animal; and that the expression "sales stable keeper means and includes any person who stables, boards or cares for any animal other than his own, with the intention of selling or disposing of the same, and who receives or is to receive payment for such services (27) Dudley v. Henderson (1886) 3 Man. R. 472. (28) No. 40 of 1897, Con. Ord. N.W.T. 1898, c. 57. (29) Con. Ord. N.W.T. c. 57, s. 3. any |