a stranger for taking the cow from the pasture. Bass v. Pierce, 16 Barb. (N. Y.) 595.

1. No Lien at Common Law-England.— Chapman v. Allen, Cro. Car. 271; Yorke v. Grenaugh, 2 Ld. Raym. 866; Judson v. Etheridge, I C. & M. 743; Jackson v. Cummins, 5 M. & W. 342; Wallace v. Woodgate, 1 C. & P. 575, 11 E. C. L. 477; Bevan v. Waters, 3 C. & P. 520, 14 E. C. L. 424.

Alabama.-Hickman v. Thomas, 16 Ala. 666. California.-Lewis . Tyler, 23 Cal. 364. Colorado.-Auld v. Travis (Colo. 1895), 39 Pac. Rep. 357.

Connecticut.-Fishell v. Morris, 57 Conn.

547.

Georgia.-Jackson v. Holland, 31 Ga. 339. Illinois.-Millikin v. Jones, 77 Ill. 372. Iowa.-McDonald v. Bennett, 45 Iowa 456; Munson v. Porter, 63 Iowa 453.

Kansas.-Kelsey v. Layne, 28 Kan. 218, 42 Am. Rep. 158.

Maine.-Miller v. Marston, 35 Me. 153, 56 Am. Dec. 694; Allen v. Ham, 63 Me. 532.

Massachusetts.-Goodrich 7. Willard, 7 Gray (Mass.) 183; Goell v. Morse, 126 Mass. 480; Vinal v. Spofford, 139 Mass. 126.

New Hampshire.-Cross v. Wilkins, 43 N. II. 332.

New York.-Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663; Fox v. McGregor, II Barb, (N. Y.) 41; Bass v. Pierce, 16 Barb. (N. Y.) 595; Bissell . Pearce, 28 N. Y. 252; Jackson v. Kasseall, 30 Hun (N. Y.) 231.

North Carolina.-Mauney v. Ingram, 78 N. Car. 96.

South Dakota.-Wright v. Sherman, 3 So. Dak. 290.

Tennessee.- -Saint 2. Smith, I Coldw. (Tenn.) 51; McGhee 7. Edwards, 89 Tenn. 506.

Vermont.-Cummings v. Harris, 3 Vt. 244, 23 Am. Dec. 206; Wills v. Barrister, 36 Vt. 220; Ingalls v. Vance, 61 Vt. 582.

Lien Allowed in Pennsylvania.-The Pennsylvania courts have held, in the face of the great weight of authority to the contrary, that an agistor who pastures cattle for hire has a common-law lien on the animals for their keep. Megee v. Beirne, 39 Pa. St. 50; Hoover v. Epler, 52 Pa. St. 522; Mathias v. Sellers, 86 Pa. St. 486, 27 Am. Rep. 723; Yearsley v. Gray, 140 Pa. St. 238. See remarks of Gibson, C. J., in Steinman v. Wilkins, 7 W. & S. (Pa.) 466, 42 Am. Dec. 254, quoted in note infra, this title, Reasons for Denying Lien.

Lien Not Created by Usage.-A lien is not created by the force of usage prevailing in particular localities, unless such usage or custom has become established, and is so general that a presumption of knowledge by the parties can be said to arise. Saint . Smith, I Coldw. (Tenn.) 51. See generally the title

USAGES AND CUSTOMS.

2. Jones on Liens, § 641; Jackson v. Cummins, 5 M. & W. 342; Cross 7. Wilkins, 43 N. H. 332; Jackson v. Kasseall, 30 Hun (N. Y.) 231; Wright v. Sherman, 3 S. Dak. 290; McGhee v. Edwards, 87 Tenn. 506; Cummings v. Harris, 3 Vt. 245, 23 Am. Dec. 206; Wills . Barrister, 36 Vt. 220; Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663. In this last case Bronson, J., said in his opinion: The right of lien has always been admitted where the party was bound by law to receive the goods, and in modern times the right has been extended so far that it may now be laid down as a general rule, that every bailee for hire who by his labor and skill has imparted an additional value to the goods, has a lien upon the property for his reasonable charges. This includes all such mechanics, tradesmen and laborers as receive property for the purpose of repairing, or otherwise improving its condition. But the rule does not extend to a livery-stable keeper, for the reason that he only keeps the horse, without imparting any new value to the animal. And besides, he does not come within the policy of the law, which gives the lien for the benefit of trade. Upon the same reasons the agistor or farmer, who pastures the horses or cattle of another, has no lien for their keeping, unless there be a special agreement to that effect."

The Usual Cases in Which the Law Creates a

Lien are where the person performing services would have no other sure remedy, as a blacksmith shoeing a horse for a stranger, or a watchmaker cleaning a watch for a stranger, or an innkeeper furnishing entertainment for travelers; and where the persons applying for these services are not strangers, the usage of their deal may be such that the law will create a lien. For instance, the course of their deal may be that payment for the services is always made before the property is taken away. But where the business is done under a personal contract, the law implies no lien; but the parties may so form their contract as to create a lien, which the law will enforce. Here was a personal contract, and no lien was

created by the terms of it. Of course, the plaintiff was entitled to her sheep, and the defendant had a right of action to recover his pay for keeping them, but the defendant had no lien upon the sheep for his pay for such keeping. Per Hutchinson, J., in Cummings 7. Harris, 3 Vt. 245, 23 Am. Dec. 206.

Doctrine Denying Lien Questioned in Pennsylvania. In a general review of the doctrine of liens in Steinman v. Wilkins, 7 W. & S. (Pa.) 466, 42 Am. Dec. 254, Gibson, C. J., said in his opinion: "From the case of a chattel bailed to acquire additional value by the labor or skill of an artisan, the doctrine of specific lien has been extended to almost every case in which the thing has been improved by the agency of the bailee. Yet in the recent case of Jackson v. Cummins, 5 M. & W. 342, it was held to extend no further than to cases in which the bailee has directly conferred additional value by labor or skill, or indirectly by the instrumentality of an agent under his control; in supposed accordance with which it was ruled that the agistment of cattle gives no lien. But it is difficult to find an argument for the position that a man who fits an ox for the shambles, by fattening it with his provender, does not increase its intrinsic value by means exclusively within his control. There are certainly cases of a different stamp, particularly Bevan v. Waters, 3 C. & P. 520, 14 E. C. L. 424, in which a trainer was allowed to retain for fitting a race-horse for the turf. In Jackson v. Cummins, 5 M. & W. 342, we see the expiring embers of the primitive notion that the basis of the lien is intrinsic improvement of the thing by mechanical means; but if we get away from it at all, what matters it how the additional value has been imparted, or whether it has been attended with an alteration in the condition of the thing? It may be said that the condition of a fat ox is not a permanent one; but neither is the increased value of a mare in foal permanent; yet in Scarfe v. Morgan, 4 M. & W. 270, the owner of a stallion was allowed to have a lien for the price of the leap. The truth is, the modern decisions evince a struggle of the judicial mind to escape from the narrow confines of the earlier precedents, but without having as yet established principles adapted to the current transactions and convenience of the world.

***Chief Justice Best declared, in Jacobs v. Latour, 5 Bing. 130, 15 E. C. L. 388, that the doctrine of lien is so just between debtor and creditor that it cannot be too much favored. In Kirkman v. Shawcross, 6 T. R. 17, Lord Kenyon said it had been the wish of the courts in all cases and at all times to carry the lien of the common law as far as possible; and that Lord Mansfield also thought that justice required it, though he submitted when rigid rules of law were against it."

This opinion was quoted with approval in Hoover v. Epler, 52 Pa. St. 522. See also Kelsey v. Layne, 28 Kan. 218, 42 Am. Rep. 158; Lord v. Jones, 24 Me. 439, 41 Am. Dec. 391; Harris v. Woodruff, 124 Mass. 205, 26 Am. Rep. 658.

1. Lien Allowed for Special Services-Story on Bailments, § 289; 2 Kent Com. 634-635; Bevan v. Waters, 3 C. & P. 520, 14 E. C. L. 424, M. & M. 235, 22 E. C. L. 301; Scarfe v. Morgan, 4 M. & W. 270; Forth v. Simpson, 13 Q. B. 680, 66 E. C. L. 680; Lord v. Jones, 24 Me. 439, 41 Am. Dec. 391; Mason v. Thompson, 9 Pick. (Mass.) 280, 20 Am. Dec. 471; Harris v. Woodruff, 124 Mass. 205, 26 Am. Rep. 658; Towle v. Raymond, 58 N. H. 64. See also Grinnell v. Cook, 3 Hill (N.Y.) 485, 38 Am. Dec. 663; Jacobs v. Latour, 5 Bing. 130, 2 Moo. & P. 20, 15 E. C. L. 388; Jackson v. Holland, 31 Ga. 339; Elliott v. Martin (Mich. 1895), 63 N. W. Rep. 525. Compare Allen v. Ham, 63 Me. 532. In this last case it was held that no lien attaches for shoeing a horse or for the taxes assessed on him which were paid by the agistor.

2. Miller v. Marston, 35 Me. 153.

3. Agistor may Acquire Lien by Special Contract. Hanover on the Law of Horses, § 425; Wallace v. Woodgate, I C. & P. 575, 11 E. C. L. 477; Richards v. Symons, 8 Q. B. 90, 55 E. C. L. 90; Lewis v. Tyler, 23 Čal, 364; Jackson v. Holland, 31 Ga. 339; Millikin v. Jones, 77 Ill. 372; Goodrich v. Willard, 7 Gray (Mass.) 183; Perkins v. Boardman, 14 Gray (Mass.) 481.

A contract to pay the agistor's charges "before moving the cattle" will create such a lien. McCoy v. Hock, 37 Iowa 436.

4. Wallace v. Woodgate, 1 C. & P. 575, II E. C. L. 477; Richards v. Symons, 8 Q. B. 90, 55 E. C. L. 90.

1. Statutory Liens.-See Case v. Allen, 21 Kan. 217. The statutes vary widely in terms. In some states the lien is given to liverystable keepers alone, while in others it is given to agistors as well. Some of the statutes create a lien only in favor of those whose regular business it is to board horses, or keep and pasture cattle, while others extend the lien to isolated cases of such boarding and pasturing. 1 Jones on Liens, § 646.

Circumstances held Not to Constitute Waiver of Lien. In Willard v. Whinfield (Kan. 1896), 43 Pac. Rep. 314, it is held that where an agistor leaves the stock that he is feeding and caring for to be herded temporarily by another party, and they are driven off during his temporary absence by the owner, or one having a special ownership in them, the agistor will not lose his lien if, within a reasonable time, he demands the return of the stock.

The Laws of Scotland give a lien to agistors. 2 Bell Com. 10.

2. See the titles LIENS and LIVERY-STABLE KEEPERS.

3. Thornton v. Kelly, 11 R. I. 498. "The term agreed is a technical word, and is synonymous with 'contracted.'''' McKisick v. McKisick, Meigs (Tenn.) 433.

Importing a Concluded Agreement.-In Ives v. Hazard, 4 R. I. 14, 67 Am. Dec. 500, it was held that the words "I agree to sell," etc., in a contract for the sale of land, imported a concluded agreement, and not a mere offer to sell. The court said: "The counsel for the respondent contend that the words of the memorandum import an offer to sell, and nothing more. We think the language imports an agreement to sell. The language is, I agree to sell;' the consideration is expressed, and the time when possession is to be given is fixed by the memorandum. The mention of the time when possession is to be given, and when the price of the land is payable, indicates that the parties deemed the agreement a concluded one." See also Baldwin v. Humphrey, 44 N. Y. 609; Richards v. Edick, 17 Barb. (N. Y.) 263; Thorton 7. Kelly, 11 R. J. 498; Martin v. Adams, 104 Mass. 262. Compare McGrath v. Boston, 103 Mass. 371; Browne v. Warner, 14 Ves. Jr. 159.

Same--Agree to Rent. "The question whether a written instrument is a lease, or only an agreement for a lease, depends on the intention of the parties to be collected from the whole instrument. Bacon v. Bowdoin, 22 Pick. (Mass.) 401. The form of expression, 'we agree to rent or lease,' is far from being decisive upon this question, and does not necessarily import that a lease is intended to be given at a future day. On the contrary, those

words may take effect as a present demise, and the words 'agree to let' have been held to mean exactly the same thing as the word 'let,' unless there be something in the instrument to show that a present demise could not have been in contemplation of the parties. Doe v. Benjamin, 9 Ad. & El. 644, 36 E. C. L. 228. The test seems to be that if the agreement leaves nothing incomplete it may operate as a present demise. Doe v. Ries, Bing. 178, 21 E. C. L. 261. The agreement relied upon by the plaintiffs contains no stipulation for a lease at any future time, and there is nothing to show that any more formal document was contemplated. It is not prospective or executory, and it does not indicate that anything remained to be done on the part of the plaintiffs. It gave to the defendants an immediate right of possession. Staniforth v. Fox, 7 Bing. 590, 20 E. C. L. 249; Jackson v. Ashburner, 5 T. R. 163; Jenkins v. Eldredge, 3 Story (U. S.) 325." Kabley v. Worcester Gas, Light Co. 102 Mass. 392. See also Weed v. Crocker, 13 Gray (Mass.) 219; Chapman v'. Bluck, 4 Bing. N. Cas. 187, 36 E. C. L. 317; Averill v. Taylor, 8 N. Y. 44; Western Boot, etc., Co. v. Gannon, 50 Mo. App. 646.

Importing a Consideration.-See also the title FRAUDS, STATUTE OF. The word agree imports a consideration. Schneider v. Turner, 27 Ill. App. 231; Andrews v. Pontue, 24 Wend. (N. Y.) 289; Davies v. Wilkinson, 1 Jur. Am. Dec. by Halst. and Doorh. 372. See also Ives v. Hazard, 4 R. I. 27, 67 Am. Dec. 500. But see Newcomb v. Clark, I Den. (N. Y.) 228, and compare Packard v. Richardson, 17 Mass. 134, 9 Am. Dec. 123.

Agreed Imports the Assent of Both Parties.-If, in a written contract signed by two, it is said that it is agreed that one shall furnish the other with certain property at a specified price, this imports a promise by the latter to accept and pay; for agreed is to be deemed the word of both parties. Barton v. McLean, 5 Hill (N. Y.) 256.

"Agreed, ex vi termini means that it is the agreement of both parties (whether both sign it or not), each and both consenting to it." Aikin v. Albany, etc., R. Co., 26 Barb. (N. Y.) 298. See also Elderton v. Emmens, 6 C. B. 175, 60 E. C. L. 174; Pordage v. Cole, 1 Saund. 319.

Same-Free Pass.-See also the title TICKETS AND FARES.

Plaintiff accepted a free ticket from a railroad on which was indorsed: "The person accepting this free ticket assumes all risks, etc., and expressly agrees,” etc. In an action for personal injuries, it was held that plaintiff could not recover. The court, by Gould,

J., said: "There being made some question whether the indorsement on the ticket (the person accepting this free ticket assumes all risks, etc., and expressly agrees,' etc.) is a contract on the part of the passenger with the company; it seems necessary to say that the word agreed means the concurrence of two parties, and that the act of acceptance binds the acceptor as fully as his hand and seal would. (Co. Litt., § 217, note; Barton v. McLean, Hill (N. Y.) 259; Worrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330; Van Rensselaer v. Smith, 27 Barb. (N. Y.) 140, and cases there cited.) The point is too well settled to admit of debate." Wells v. New York Cent. R. Co., 24 N. Y. 183.

The Words Agreed and Undertook" Amount to a Promise." In the first, second and third counts it is alleged that the defendant, in consideration of certain things done by the plaintiff, agreed and undertook to effect an insurance on the plaintiff's house. The words agreed and undertook' amount to a promise. It is not necessary that the word "promised " should be used, the word agreed being equivalent to it. Mountford v. Horton, 2 B. & P. R. 62." Bodley v. Roop, 6 Blackf. (Ind.) 158.

Same-Where there Is No Act to be Done Except by One of the Parties.-In Dawes v. Tredwell, 18 Ch. Div. 359, the court said: "The rule is that where you have such words as it is hereby agreed and declared between and by the parties to these presents,' that some one will do an act or make a payment, and that some one is a party to the deed, it is a covenant by him with the others, not a covenant by all of them. Anything more absurd than to hold it a covenant by all of them could not be imagined. Suppose you had these words, 'Provided always it is hereby agreed and declared between and by the parties to these presents that the said A B shall pay £5,000 to the said C D on the 6th of January next,' it would be absurd to say that this amounts to covenant by C D, the recipient of the money, that A B shall pay him, as well as a Covenant by A B that he will pay him. If, therefore, we find that no act is to be done except by one of the parties, these words only amount to a covenant by that one party with the others." See also In re De Ros, 55 L. J. Ch. Div. 73; Butcher v. Butcher, 14 Beav. 222; In re D'Estampes, 53 L. J. Ch. 1117; Randel v. Chesapeake, etc., Canal Co., I Harr. (Del.) 172.

a

connection it is applicable to both parties, it may be referred to that party upon whom the doing or not doing the thing agreed upon, devolved. Randel 7. Chesapeake, etc., Canal Co., I Harr. (Del.) 172. See also Dawes v. Tredwell, 18 Ch. Div. 359.

Same-In the Sense of Grant.-In a deed containing the following clause: "And the said grantors agree that no building shall be erected on said lot next east of said granted premises nearer to the west line of said lot than four feet, being the east line of the premises hereby conveyed," it was held that the word agree must be read to mean "grant," and attached an easement in fee to the grantees. Hogan v. Barry, 143 Mass. 538.

Imports Legal Agreement.-Where a pleading alleged that a party agreed to do a certain thing, it was held that this would be taken to mean that he agreed to do the thing in a valid and legal manner. Thus, if a parol agreement was insufficient, it would be presumed that the agreement was in writing. The court said: Agreed, as here used, is synonymous with promised' or 'undertook.' Packard v. Richardson, 17 Mass. 131, 9 Am. Dec. 123. But defendant says the amount and manner of payment was fixed by the original written contract, and its terms could not be changed by a subsequent parol promise. The complaint does not plead the subsequent agreement as an oral one, and it cannot be assumed that it was oral. The presumption is the other way. It alleges that the defendant agreed. If, under the circumstances, an oral promise could not constitute an agreement, then an oral promise is not meant nor pleaded. If a written promise only would be valid as an agreement, then the effect of the allegation is to plead a written promise; otherwise, the defendant would not have agreed, and for the purpose of this objection the allegation must be taken as true. Upon the trial, if plaintiff's seek to alter the terms of the original written agreement by a subsequent promise, they must show such promise in writing, but the allegation is sufficient to let in such proof." Jenkinson v. Vermillion, 3 S. Dak. 238.

In the Sense of "Find"-Jury Trial.--A verdict that the jury, after deliberation, agree that the said defendant is guilty, was held sufficient. The court said: "The word 'find' is more commonly used, but the word agree, where employed with reference to the verdict of a jury, particularly in criminal cases, means precisely the same thing. Both signify that the jury, upon consideration of the evidence, have determined that the accused is guilty or not guilty of the crime charged. The word agree is almost invariably used when the jury are addressed upon the subject of their verdict. Mr. Chitty says (1 Chitty's Crim. Law, 635), that when the jury have come to a unanimous determination with respect to their verdict, and return to the box to deliver it, the clerk then calls them over by their names and asks them whether they agree on their verdict; and it certainly cannot be a bad answer, if they reply that they do agree, and state what that agreement is."" Benedict v. State, 14 Wis. 423.

Treaty-Agreed upon Terms of Peace.-In

Hylton v. Brown, I Wash. (U. S.) 351, it is said that terms of peace are agreed upon when the ministers have come to an understanding as to the terms of the treaty and have reduced them to writing; and that they are concluded when the agreement thus understood has received its last form by being signed and duly executed by the ministers. See also the title TREATIES.

Judgment Agreed to.-A judgment which recited a hearing and purported to have been rendered upon the evidence, was indorsed “agreed to. It was held that this did not constitute a consent judgment, especially as the alleged stipulation of consent was not made a part of the bill of exceptions. The words “agreed to” might mean nothing more than that the judge agreed to the judgment as properly expressing the judgment ordered by the court. San Francisco Sav. Union 7. Myers, 76 Cal. 624.

Same-Dismissed Agreed-The words "dismissed agreed," entered as the judgment of a court, do not of themselves import an agreement to terminate the controversy, nor imply an intention to merge the cause of action in the judgment. The court said: "Whatever may be the effect given by the courts of Kentucky to a judgment entry dismissed agreed, it is manifest that the words do not of themselves import an agreement to terminate the controversy, nor imply an intention to merge the cause of action in the judgment. Suits are often dismissed by the parties; and a general entry is made to that effect, without incorporating in the record, or even placing on file, the agreement. It may settle nothing, or it may settle the entire dispute. If the latter, there must be a proper statement to that effect to render it available as a bar. But the general entry of the dismissal of a suit by agreement is evidence of an intention, not abandon the claim on which it is founded, but to preserve the right to bring a new suit thereon if it becomes necessary. It is a withdrawal of a suit on terms, which may be more or less important." Haldeman v. U. S., 91 U. S. 584.

to

Assumpsit and Debt.-In an action of assumpsit upon a contract, which is set out in hæc verba in the declaration, the use of the word agreed, in an averment as to the extension of the time of performance of the contract, does not make the count one in debt. North v. Kizer, 72 Ill. 173.

Assumed and Agreed.-An allegation in the complaint in an action to foreclose a mortgage, that the grantees of the mortgagor, who were made defendants, "assumed and agreed" to pay the mortgage debt, is not the statement of two distinct propositions, but the word "assumed" as used in the allegation is synonymous with the word agreed; and a denial in the answer by such grantees, that they "assumed and agreed" to pay the mortgage debt, is not a conjunctive or evasive denial,

but is sufficient to raise an issue as to such allegation; and a finding of fact, based upon a supposed admission of the pleadings as to their assumption and agreement to pay the debt, is erroneous. Jones v. Eddy, 90 Cal. 147. It Is Mutually Agreed.-Where a printed receipt containing the words "it is mutually agreed " was given by a common carrier to a shipper on the taking of goods to be sent to a certain place, it was held that a loss of the goods beyond the line of the company which gave the receipt must be paid for, as the shipper did not know that the company's line only extended to a certain point; there could be no mutual agreement in such a case. Mosher v. Southern Express Co., 38 Ga. 37.

66

1. Testatrix gave the residue of her personal estate "in trust for such of my nieces as shall be living at my death, my desire being that they shall distribute such residue as they think will be most agreeable to my wishes." Jessel, M. R., observed: "What is that but to make them judges of the mode of distribution, and place the residue at their absolute disposal?" Stead v. Mellor, 5 Ch. Div. 225. 2. United States Statute.-Congress has provided that the preliminary proceedings against persons accused of a violation of a criminal enactment shall be "agreeably to the usual mode of process against offenders in such state." In U. S. v. Rundlett, 2 Curt. (U. S.) 41, the court, by Curtis, J., said: "My opinion is that it was the intention of Congress by these words, ‘agreeably to the usual mode of process against offenders in such state,' to assimilate all proceedings for holding accused persons to answer before a court of the United States, to proceedings had for similar purposes by the laws of the state where the proceedings should take place; and, as a necessary consequence, that the commissioners have power to order a recognizance to be given to appear before them in those states where justices of the peace, or other examining magistrates, acting under the laws of the state, have such power. * * * The prisoner is not only to be arrested and imprisoned, but bailed, agreeably to the usual mode of process in the state." This is approved in U. S. 7. Horton, 2 Dill. (U. S.) 97. See also the titles BAIL; UNITED STATES COMMISSIONERS; and ENCYC. PL. AND PR., title PRELIMINARY EXAMINATION.

3. Sage 7. Wilcox, 6 Conn. 86. In that case, the court said: "In Wain v. Warlters,

East 17, it was said by Lord Ellenborough, that the word agreement, in a loose and incorrect sense, is sometimes used as synonymous with promise' and 'undertaking,' but in its more proper and correct sense, as signifying a mutual contract or consideration between two or more parties. But the word agreement, with much deference to the learned and able jurist, I affirm is, beyond all comparison, used more frequently to denote a mutual