article hired is reasonably fit for the purpose for which it is specifically and avowedly hired.

§ 27. Right of Compensation Where Bailment Is Terminated by the Destruction of the Property or by the Death of the Bailee or the Bailor. Where the property is destroyed or lost through the fault or delay of the bailee, no compensation whatever can be demanded. Where, however, the loss has been due to a cause for which the bailee has not been responsible, full compensation may be received if the work has been completed, and compensation pro tanto for that which has been done if the whole work is incompleted. So, too, although the death of the bailor will generally terminate all bailments but the pledge, and the death of the bailee will terminate all bailments which involve personal or professional skill or responsibility, compensation pro tanto may be recovered. If no such personal skill or capacity is involved, it would seem that such death presumptively terminates the relationship, and compensation pro tanto may be recovered, but that the personal representatives of the deceased may, on the one hand, and at the option of the bailor, be requested and required to finish the work, if they are able so to do, and that on the other, the representatives may demand the privilege if they so desire, and the completing of such work would be of benefit to the estate of the deceased.

§ 28. The Lien of the Bailee. At the common law the bailee for hire, who, by his labor and skill added value to the thing bailed, had a lien on such article for his reasonable charges, while the so-called exceptional bailees, that is to say, the innkeeper, the common carrier, and the public warehouseman, because, it was said they could not refuse to receive the goods and incur the liability cast upon them by their customers, and the warehousemen generally, because of custom and the peculiar nature of the business, were conceded a lien irrespective of the addition of value to the articles bailed. It would seem that originally it was only where there was a duty to receive that a lien was given. Later, however, the privilege was accorded to artisans and

others who added value, and now by the statutes of many of the States, it is given to almost all bailees for hire. Where no such statutes have been passed, the common law, of course, prevails, and in it are to be found some curious distinctions as to what does and to what does not constitute an addition of value. The private carrier not being bound to carry, and adding no value, has been denied the right to a lien. The mere feeding and keeping alive of an animal, as where a livery stable keeper feeds and cares for a horse, or an agister or herder pastures cattle, has been held not to give any lien, while the addition of a horseshoe by a farrier to the foot of a horse, or the training or rendering of veterinary services to such an animal, have been held to confer the privilege. So, too, although the innkeeper was given a lien by the common law, the boarding house keeper had none, as he added no value to the goods. left or stored with him, and, unlike the innkeeper or the common carrier, was under no obligation to receive them. It has been held, however, in many cases that a lien can be claimed by involuntary bailee who cannot well escape the obligation of caring for the article or chattel which has come into his possession and who is permitted to assert a lien so far as necessary to reimburse him for expenses incurred in its necessary preservation. The point is well illustrated in an early Connecticut case where "A sold and delivered a number of swine to B on credit, and B on the next day, claiming to have rescinded the contract, returned them into the possession of A, without his knowledge or con sent, and refused to receive them back when required to do so by A. Whereupon A brought an action against B for goods sold and delivered, to recover the price of the swine, and obtained judgment. In trover of B against A, it was held that A, by bringing suit for the price of the swine, had lost his lien upon them as vendor, but that by their return to him by B he was made a bailee by compulsion, with the duty of incurring expenses in feeding and caring for them, and that as such bailee he had a particular lien upon them for such expense.' These cases are distinguished

from those relating to the finder of lost articles who, as we shall hereafter see, is denied the privilege of a lien for expenses incurred by him, however needful and however beneficial to the owner, for the reason that in the latter case, "the finder voluntarily puts himself to the trouble and expense and need not pick up nor save the lost article at all unless he so desires." The reason for this distinction and the rule, seem to be woefully lacking in humanity and in a sound public policy. The rule seems, however, to be well established. The legislatures of nearly all the States have also, of recent years, as we have before said, added materially to the number of liens and in doing so have considered services rendered rather than value received. In every case, except in that of the pledge, which is a bailment for security rather than for care, custody, or services, the lien at the common law was a retaining lien merely. There was no means of enforcement and no right to sell the goods in order to realize on the claim except the cumbersome procedure of a suit at law upon the debt and the levy of an execution thereunder, or the still more cumbersome procedure of a bill in equity. The lien, in short, was largely a "dog in the manger" lien. This defect the modern statutes have largely remedied. In the absence of statute, contract, or well-established custom, the lien of the bailee is a particular, and not a general, one. It covers the costs and charges incurred in relation to the specific article merely. The common law, indeed, usually recognizes no lien for unpaid balances or amounts or debts incurred in relation to other and different chattels than those on which the lien is sought to be asserted. In considering the subject of liens generally and in reading this paragraph, we should bear in mind the fact that the right to a lien and the right to compensation are by no means the same thing, and that, though many bailees were denied liens at the common law, few of them were denied the right to reimbursement for legitimate charges and expenses and to an appropriate action therefor. Though a boardinghouse keeper, for instance, had no lien for storage on goods left with him, he could nevertheless charge and sue for that

storage; and though the finder of lost articles had usually no lien for expenses incurred in its care and preservation, he could usually charge and sue for such expenses.

§ 29. The Possessory Lien of the Attorney. The attorney at law has, at the common law, a possessory lien on the papers, money and other property of his client, except wills or public records, which come into his possession while acting as such an attorney. It is probable that this lien will today be held to protect his reasonable fees as well as his costs and disbursements, although there is some doubt on this question.22 It should not be confused with the attorney's so-called charging lien on the judgment, although both liens now probably include fees as well as costs and expenses.23

§ 30. Special Agreements Increasing or Modifying Liability. The obligations of the bailee which are usually discussed under the subject of bailments are those which are assumed or implied when there is no specific agreement on the subject. It is evident, however, that by such specific agreement the obligations may be decreased or increased. A bailee, for instance, might agree to store the goods delivered to him in a certain place and in a certain manner, or to return the goods in as good condition as when received, and would be held to his promise. So, too, a fair or other exhibiting society may, as a consideration of the loan or exhibit, turn that which would ordinarily be the liability of a bailee for hire, into that of an absolute insurer. A mere informal promise to return a thing or to return it in good order, would, it is true, ordinarily be construed as merely restating the obligation of the bailee for hire,24 but a promise, to keep or to carry safely, will be held to impose a complete liability for all losses except such as are occasioned by the act of God, the public enemy, the contributory negligence of the bailor, or the inherent defects of the articles themselves.

22 Weeks on Attys., § 372.

23 Weeks on Attys., §§ 370, 384.

24 Lawson on Bail., § 13; Hyland v. Paul, 33 Barb. 241.

The converse of this proposition is, of course, also true, and the liability of the bailee may be modified by a special agreement so as to render him merely liable for fraud or willful negligence to allow an exception in regard to which would hardly be in accord with a sound public policy, or for his gross negligence, which is considered almost as reprehensible as fraud itself. For this agreement no special consideration is necessary. With the exception of the exceptional and extraordinary bailments such as the common carrier, the innkeeper, and the public warehouseman, no duty to receive or accept the bailment is imposed upon the bailee, nor is the bailor on his part under any duty to deliver. The mere delivery and acceptance of the goods, therefore, will constitute a sufficient consideration for any agreement that may be made, either limiting or increasing liability, and no extra and peculiar consideration is necessary in order to support a contract other than and different from that implied from the relationship itself.

Limitation of Liability by Exceptional Bailee. The extent to which the common carrier may, by special contract founded upon a special consideration (and it must be a special contract, founded upon a special consideration), exempt himself from the full measure of liability, is fully discussed elsewhere in this work, and all that need be said here is that in America the right is generally conceded to contract against the extraordinary liability as an insurer, but not against that of a bailee for hire. This rule still renders the carrier liable for all losses which are the result of his negligence whether slight, ordinary, or gross. However, it was adopted with some doubt and with no little intellectual confusion, and the earlier cases, no doubt, held or intended to hold, that all but gross negligence could be contracted against.25 The cases which immediately followed said that exemptions for negligence could not be made, but did not distinguish between that which was gross, slight or ordinary;26 and the result was that the impres

25 Ill. Centr. R. Co. v. Morrison, 19 Ill. 136.

26 Rd. Co. v. Lockwood, 17 Wall. 357.