The opinion
W. Allen, J.
In the first case, the only exception is to the refusal of the court to rule that the plaintiff was entitled to recover. If it was competent for the court to find, upon the facts stated in the exceptions, that the petitioner had waived his lien, the ruling was right.
If it can be assumed that the petitioner had a lien, which was in force when he had possession of the horse at Medfield in August, we think the court might have found a subsequent waiver and release of the lien. The petitioner had, more than a month before, ceased to keep the horse, and the possession which he then had was not that which a stable-keeper has of a horse that he boards, but was only under his lien; and the considerations urged to show that a stable-keeper does not lose his lien by allowing the owner of a horse kept by him to use the horse, and to have possession of him for that purpose, do not apply; it was a possession held merely to protect the lien, and any relinquishment of it to the owner would release the lien.
There was evidence that might have satisfied the judge who tried the case, that the respondent took possession of the horse at Medfield with the assent of Cahill, the agent of the petitioner ; that it was left in his possession by Cahill; that the petitioner himself consented that it should remain in the possession of the respondent for a time, he promising to send it to the petitioner the next day; and that, when the respondent returned to Medfield from Boston, it was with the understanding of both parties that he should keep the possession of the horse until the next day.
What particular inferences of fact the judge who tried the case may have drawn from the facts and evidence stated in the exceptions we do not know. We cannot say that it appears that inferences may not have been drawn which would have made the conclusion that the petitioner had waived his lien necessary. See Perkins v. Boardman, 14 Gray, 48l. Walker v. Staples, 5 Allen, 34 .
This decision covers the second case.
Exceptions overruled.