
    HILLSBOROUGH, OCTOBER TERM, 1796.
    Boynton v. Emerson.
    W. was indebted to B. in $-upon a note, payable, in neat stock, at a certain place in S., on a certain day, the stock to be appraised by indifferent men. At the time and place appointed, the creditor did not appear; but the stock was appraised, and turned out into the highway. E. took the creatures into his possession to prevent their starving. This was in December, 1791. At sundry times, the original debtor, W., and E. requested B. to take the cattle away, which he as often, refused, declaring he would have nothing to do with them. He sued W. on the note, but became nonsuit. In 1795, having delivered up the note, he demanded the cattle of E., who refused to deliver them, unless paid for keeping.
    On trover for the cattle by B. against E., held, that lie- could not recover; the property did not vest in him ; if it did, he abandoned.
    
      Quaere, of E.'s lien for expenses of keeping.
    This was an action of trover, for the conversion of two four-year old oxen, two cows, and one steer.
    The defendant pleaded not guilty.
    The evidence of the property in the plaintiff, and conversion by the defendant, was, in substance, as follows: —
    The plaintiff held a note against one Peter Wright, of Stoddard, for the payment of a certain sum, by a certain day, in neat cattle, to be delivered at a certain place in Stoddard, and to be appraised by indifferent men. At the time and place mentioned in the note, the creditor did not appear.. The debtor produced the cattle; they were appraised according to the contract, and were sufficient, according to the appraised value, to discharge the note. The cattle being turned into the highway, and it being winter-time, and the former owner refusing to take care of them, the creditor living in Massachusetts', the defendant, to prevent their starving, took them into his care. This was in December, 1791, and they remained with defendant till the action brought (except such as he had killed or sold). The action commenced in 1795. Soon after the appraisal, the former debtor and the defendant sent word to the creditor, and requested him to take the cattle, which he refused: this was repeated, and again refused. In 1791, 1792, 1798, or 1794 (it is not recollected which), the creditor commenced a suit upon the note, against the debtor, Wright, in Massachusetts, in which, after advising with counsel, he became nonsuit. Afterwards, he delivered up the note he held against Wright, and sent a messenger to Emerson, the defendant, demanding the cattle, but refusing to pay for the keeping. The defendant refused to deliver them unless he would pay for the keeping.
    This was the amount of the evidence offered by plaintiff and defendant.
    It was contended by Bigelow, counsel for the plaintiff,
    that this evidence proved the property in him, and that the demand (which was on May 23,1795, before the commencement of the suit) and the refusal was evidence of conversion in defendant, sufficient to maintain this action.
    
      J. Smith, counsel for the defendant, rested the defence on two points.
    1. That this evidence did not prove property in plaintiff.
    2. That the defendant was not bound to deliver up the cattle till payment, or offer of payment, for the keeping.
    I. Property in the plaintiff.
    It was admitted that the appraisement and delivery by the debtor, Wright, was a complete bar to any action on the note.
    But it was contended that this did not, at all events, vest the property in the creditor.
    It was admitted that there are cases where consent to a contract is to be presumed, and that this was one of the cases; but this presumptive assent is destroyed by positive proof of dissent; and nothing could be clearer than the evidence of dissent in the present case. He repeatedly declared they were not his cattle; he would have nothing to do with them. He would not accept them. He commenced a suit against Wright, on the note; and, from 1791 to May, 1795, was uniform in his refusal to accept the property. Now, it will not be denied that property cannot vest against the will of a person expressly manifested. Before property can change its owner, there must be the concurrence of two wills, — that of the former owner to part with it, and' that of the new proprietor to accept of it.
    Till Boynton had notice of the appraisal, he might be considered as the owner; after that, he could not be in any sense. They could not be taxed to him. Emerson could not compel him to pay for sustenance of them.
    Perhaps it is going too far to say that the property could be considered as in him till his dissent. It would be more proper to say that, upon his consent, the property should be considered as in him, and, by a hind of postliminii, to have been all along in him.
    The delivery and appraisal of the cattle was no more than a tender by the debtor; and the property of the thing tendered no more vested in the creditor than the property of money tendered, which is not accepted, vests in the creditor. From the nature of the contract, the custody of the article tendered is sometimes with the person making the tender. This is the case with money; the tender is not complete till renewed in court. But, where a specific article is tendered, the person offering need not retain the possession; for he is under no necessity to renew the offer. In the latter case, the creditor, having had one offer of fulfilment, shall not be indulged with another; as this would subject the debtor to great inconvenience, and, sometimes, total loss of the property. He is estopped from demanding the article again; not because the property is in him by the former offer, but because the defendant shall not be vexed, after having done every thing to fulfil in his power.
    • But, upon either of these grounds, — that the property did not vest at all, or that it vested sub modo till dissent expressed, — the instant that dissent was expressed, the plaintiff ceased to have any property in the cattle mentioned in his declaration, anil, of course, cannot maintain this action. For, if he has not an absolute property, he has none at all; there being no pretence of any qualified property in this case.
    But, if it should be considered that the property did absolutely vest in the plaintiff by the proceedings of his debtor, yet his absolute denial of property, refusal to receive it, and refusal to pay for keeping, is complete evidence of an abandonment. 2 Blaekst. 9. The owner of any chattel may abandon it; in which case he shall never claim it again.
    According to the foregoing principles,— that the property was devested from Wright and never vested in the plaintiff, or became devested upon his refusal to accept, or abandonment,— the right of the plaintiff to maintain the action is destroyed; but it may be added that the defendant, as the first finder of property which at one time belonged to nobody, acquired a title by occupancy. 2 Blaekst. 9, 402.
    II. But should it be admitted that the property of the cattle in question was in the plaintiff on May 23,1795, — the time of the demand made, — yet it is contended that he cannot maintain this action, not having tendered a reasonable sum for the keeping'.
    It is not pretended that any of the cases in the books declare that a person, circumstanced like the defendant, has a lien on the goods in his custody, but it is apprehended that the principles of the bases will apply.
    Here the defendant was under a moral obligation to relieve and sustain the cattle, and the cattle themselves seem to be the fund out of which he is to be paid. His obligation to relieve is certainly as great, and it is for the honor of our law and of humanity to say that it is as legal, as that on an innkeeper to receive the horse of his guest.
    The case, in 2 Blaekst. Rejn 1117, of the dog, may easily be distinguished from the present. They may be considered as agreeing in this, that the animals, in both cases, strayed to the keeper; but the obligation to keep a dog, — an animal which is hurtful to society, — and animals of the description of those in the plaintiff’s writ, is extremely different. 2 Blaekst. 298, n. 11.
   The Count

instructed the jury to find for the defendant, which they did.

One of the Court only was with the defendant on the second point. 
      
      
        Boynton v. Emerson is cited with approval in the well-known case of Weld v. Hadley, 1818, 1 N. H. 295, 328. That case goes farther than Boynton v. Emerson; for the defendant there was the debtor himself, who had successfully pleaded the tender in a suit on the contract.
      
        Weld v. Hadley has been disapproved of by prominent text-writers. 2 Kent, Com. 509; 2 Pars. Cont. 5th ed. 654, n. w; 2 Chit. Cont. 11th Am. ed. 1210, 1211.
      There are also numerous expressions of judicial opinion adverse to Weld v. Hadley; hut a very large proportion of these occur in suits on the contract, where the question of title to the property tendered was not directly in issue. Por dicto in cases of this description, see Bell, J., in Miles v. Roberts, 1856, 34 N. H. 245, 256; Thompson, J., and Kent, J., in Coit v. Houston, 1802, 3 Johns. Cas. 243, 249, 258; Slingerland v. Morse, 1811, 8 Johns. 370, 374; Savage, C, J., in Lamb v. Lathrop, 1834, 13 Wend. 95, 97; McConnell v. Hall, 1820, Brayt. 223, 227; Barney v. Bliss, 1824, 1 D. Chip. 399, 406-409 (see also Hall, J., in Seward v. Heflin, 1848, 20 Vt. 144, 148); Palmer v. Harper, 1833, Wright (Ohio), 383 (decided under statute); Bradshaw v. Davis, 1854, 12 Tex. 386, 353-355; Hambel v. Tower, 1863, 14 Iowa, 530, 532; Peters, J., in Smith v. Loomis, 1828, 7 Conn. 110, 114-116; Blackford, J., in Mitchell v. Merrill, 1827, 2 Blackf. (Ind.) 87, 89; Stevens, J., in Johnson v. Baird, 1833, 3 Blackf. (Ind.) 182, 186, 187; Dorman v. Elder, 1834, 3 Blackf. (Ind.) 490, 492; Rogers, J., in Case v. Green, 1836, 5 Watts, 262; Coulter, J., in Zinn v. Rowley, 1846, 4 Penn. St. 169, 171; Curtiss v. Greenbanks, 1852, 24 Vt. 536 (where the question related to the validity of a tender of money); Bibb, C. J., in Mitchell v. Gregory, 1809, 1 Bibb, 449, 453.
      
        Leballister v. Nash, 1844, 24 Me. 316, and Des Arts v. Leggett, 1858, 16 N. Y. 582, are both cases where the title to the property tendered was directly in issue, and opinions were intimated adverse to Weld v. Hadley ; but in neither case was the precise point in Weld v. Hadley before the Court. In Leballister v. Nash (trover by the creditor against a third person), there was no refusal to accept. In Des Arts v. Leggett, Strong, J., took the ground that the debtors had been, at all times after the tender, willing that the creditors should have the benefit and control of the property, and had carefully avoided any thing which would interfere with any use of the property by the creditors. Under this view of the facts, it was held that the defendants, who were third persons, could not question the creditor’s title to the property. As all the judges are stated to have concurred in the opinion delivered by Strong, J., it would seem that the very forcible criticisms upon Weld v. Hadley, in the opinion of Com-stock, J., pp. 592-594 (though also concurred in by the other judges), must be regarded as dicta. '
      In Shelden v. Skinner, 1830, 4 Wend. 525, the debtor was held liable in trover for abandoning the property (turning the hogs into the street) after the tender. But see the contrary dicta of Comstock, J., in Des Arts v. Leggett, ubi sup. 591, 592.
      The view held by most of the opponents of Weld v. Hadley seems to be that the tender ipso facto vested the property in the creditor; but it seems to have been thought by some that it did not vest until the debtor had successfully set up the tender as a defence to the contract. See Scott, J., in McJilton v. Smizer, 1853, 18 Mo. 111, 116, 117. And it has sometimes been held, that a plea of tender of specific articles in the creditor’s absence should aver that the defendant has been always, and yet is, ready to deliver the articles. See Tiernan v. Napier, 1823, Peck (Tenn.), 212; Nixon’s Adm’rs v. Bullock, 1836, 9 Yerg. 414; Miller v. McClain, 1837, 10 Yerg. 245; Walters v. M’Allister, 1818, 4 Hayw. (Tenn.) 299. (Contra, 2 Kent, Com. 508; 2 Pars. Cont. 5th ed. 653, n. v.) In Garrard v. Zachariah, 1828, 1 Stew. (Ala.) 272, a plea of tender and refusal was held good, without an averment that the defendant abandoned the articles, or kept them ready to be delivered to the creditor on demand.
      The report of Rix v. Strong, 1773, 1 Root, 55 (referred to in Weld v. Hadley, 329), is as follows: “ Action of trover for a number of horses. Plea : not guilty, to the jury.
      “ The facts were: Rix had a note against one Bacon, for £24 10s. payable, in horses, at a certain time and place in Lebanon. Bacon tendered the horses at time and place, and Rix refused them, and brought an action upon the note; to which Bacon plead the tender of the horses, and prevailed. Rix then looked after his horses, and found that the defendant had taken them away. lie went and demanded them, and brought this action.
      “ And verdict and judgment was for the plaintiff to recover; for, as the tender was legal, the property of the horses was vested in the plaintiff.”
      It may perhaps be urged that, in Boynton v. Emerson, there was stronger evidence of .the creditor’s “ abandonment ”_of the property than in Rix v. Strong.
      
     