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 62 HARVARD LAW REVIEIV.

The career of the agistor's lien is also interesting. That such a lien existed before the days of implied contracts is intrinsically probable, and is also indicated by several of the books.^ But in Chapman v, Allen' (1632), the first reported decision involving the agistor's right of detainer, there happened to be an express con- tract, and the lien was accordingly disallowed. When a similar case arose two centuries later in Jackson v. Cummins,* this prece- dent was deemed controlling, and, as the old distinction between express and implied contracts was no longer recognized, the agistor ceased to have a lien in any case. Thus was established the modern and artificial distinction in the law of lien between bailees for agistment and ** bailees who spend their labor and skill in the improvement of the chattels " delivered to them.*

The value of the discovery of the implied promise in fact was exemplified further in the case of a parol submission to an award. If the arbitrators awarded the payment of a sum of money, the money was recoverable in debt, since an award, after the analogy of a judgment, created a debt. But if the award was for the per- formance of a collateral act, as, for example, the execution of a release, there was, originally, no mode of compelling compliance with the award, unless the parties expressly promised to abide by the decision of the arbitrators. Tilford v. French* (1663) is a case in point. So, also, seven years later, " it was said by Twisden, J., that if two submit to an award, this contains not a reciprocal promise to perform; but there must be an express promise to ground an action upon.*' * This doctrine was abandoned by the time of Lord Holt, who, after referring to the ancient rule, said : " But the contrary has been held since ; for if two men submit to the award of a third person, they do also thereby promise ex^)ressly to abide by this determination, for agreeing to refer is a promise in itself." 7

��1 2 Roll. Ab. 85, pi. 4 (1604) ; Mackemey v, Erwin (1628), Hutt. loi ; Chapman v, Allen (1632). 2 Roll. Ab. 92, pi. 6, Cro. Car. 271, s. c.

« 2 Roll. Ab. 92, pi. 6, Cro. Car. 271, s. c.

« 5 M. & W. 342.

^ The agistor has a lien by the Scotch law. Schouler, Bailments (2 ed.), § 122.

(161 2), I Roll. Ab. 7, pi. 3; Browne v. Downing (1620), 2 Roll. R. 194; Read v. Palmer (1648), Al. 69, 7a • Anon., i Vent. 69.
 * I Lev. 1 13. 1 Sid. 160, i Keb. 599, 635. To the same effect, Penruddock v, Monteagle

7 Squire v, Grevell (1703), 6 Mod. 34, 35. See similar statements by Lord Holt in Allen V. Harris (1695). ' ^* ^^X* '^^ ; Freeman v. Barnard (1696), i Ld. Ray. 248; Purslow V, Baily (1704), 2 Ld. Ray. 1039; Lupart v, Welson (1708), 11 Mod. 171.