private concern, be confided to more than one agent, it is requisite that all join in execution of the power, and they are jointly responsible for each other; though the cases admit the rule to be different in a matter of public trust, or of power conferred for public purposes; and if all meet in the latter case, the act of the majority will bind. (c) 5

*634 III. Of the agent's right of lien.

The lien here referred to is the right of an agent to retain possession of property belonging to another, until some demand of his is satisfied. It is created either by common law, or by the usage of trade, or by the express agreement of particular usage of the parties. (a) A lien, said C. J. Tindal, (b) only can arise in one of three ways: 1. By an express contract; 2. By a general course of dealing in the trade in which the lien is set up; 3. From the particular circumstances of the dealing between the parties.

A general lien is the right to retain the property of another, for

are fully discussed in a note. The principal is liable to third persons in a civil suit for frauds, or misfeasances, or neglect of duty in his agent, or in those whom his agent employs, though the principal did not authorize or assent to it. The liability runs through all the stages of the service. Story on Agency, ch. 17, §§ 452, 454. In Sproul v. Hemmingway, 14 Pick. 1, in the case of a brig towed at the stern of a steamboat employed in the business of towing vessels in the Mississippi, and through the negligence of the master and crew of the steamboat, the brig was brought into collision with a vessel lying at anchor, and did damage to it, it was held that the owner of the brig was not liable for the damage, and on the ground that the master and crew of the steamboat were not in any sense his agents, and that there was no negligence or misconduct on the part of the master and crew of the towed brig.

(c) Grindley v. Barker, 1 Bos. & Pull. 229. Towne v. Jaquith, 6 Mass. 46. Green v. Miller, 6 Johns. 39. Baltimore Turnpike, 5 Binney, 484. Patterson v. Leavitt, 4 Conn. 50. The King v. Beeston, 3 Term Rep. 592. Lawrence J., in Withnell v. Gartham, 6 Term Rep. 388. M'Cready v. Guardians of the Poor, 9 Serg. & Rawle, 99. First Parish in Sutton v. Cole, 3 Pick. 244, 245. Ex parte Rogers, 7 Cowen, 526. Jewett v. Alton, 7 N. Hamp. 253. Downing v. Rugar, 21 Wendell, 178. Johnston v. Bingham, 9 Watts & Serg. 56. Story on Agency, 2d edit. §§ 41-44. Vide supra, p. 293. (a) Lord Mansfield, in Green v. Farmer, 4 Burr. 2221. (b Furgusson v. Norman, 5 Bing. (N. C.) 76.

5 This is so declared by statute in New York. Rev. St. of N. Y. 5th ed. p. 869, sec. 29. But in Perry v. Tinen, 22 Barb. (N. Y.) 137, and Horton v. Garrison, 23 Barb. (N. Y.) 176, it was held that the statute is subject to the necessary qualification, that if one is notified to attend and refuses, it is the same as if he had attended and dissented from the act of the majority.

a general balance of accounts; but a particular lien is a right to retain it only for a charge on account of labor employed or expenses bestowed upon the identical property detained. The former is taken strictly, but the latter is favored in law. (c) The right rests on principles of natural equity and commercial necessity, and it prevents circuity of action, and gives security and confidence to agents.

Where a person, from the nature of his occupation, is under obligation, according to his means, to receive, and be at trouble and expense about the personal property of another, he has a particular lien upon it; and the law has given this privilege to persons concerned in certain trades and occupations, which are necessary for the accommodation of the public. Upon this ground, common carriers, innkeepers, and farriers, had a particular lien by the common law; (d) for they were bound, as Lord Holt said, (e) to serve the public to the utmost extent and ability of their employment;1 and an action lies against them if they refuse without adequate *reason. But though the * 635 right of lien probably originated in those cases in which there was an obligation arising out of the public employment, to receive the goods, it is not now confined to that class of persons; and in a variety of cases, a person has a right to detain goods delivered to him to have labor bestowed on them, who would not be obliged to receive the goods, in the first instance, contrary to his inclination. It is now the general rule, that every bailee for hire,

(c) Heath J., 3 Bos. & Pul. 494. Tindal C. J., 4 Carr. & Payne, 152. Morgan, 4 Mees. & W. 270.

Scarfe v.

(d) Naylor v. Mangles, 1 Esp. 109. Yorke v. Greenough, 1 Salk. 388. 2 Lord Raym. 866, S. C. Chambre J., 3 Bos. & Pull. 55. Rushforth v. Hadfield, 7 East, 224. 21 Hen. VI. 5. Keilw. 50. Popham C. J., Yelv. 67. Carlisle v. Quattlebaum, 2 Bailey (S. C.) 452. This lien does not extend to agisters and livery-stable keepers, without a special agreement, or the horse be taken for training. Lord Holt, in Yorke v. Grenaugh, supra. Bevan v. Waters, 3 Carr. & Payne, 520. Wallace v. Woodgate, 1 Carr & Payne, 575. See also Judson v. Etheridge, 1 Crompt. & Meeson, 743; Grinnell v. Cook, 3 Hill (N. Y.) 492. Jackson v. Cummins, 5 Mees. & W. 342. Nor does the innkeeper's right of lien extend to the person of his guest, or to his wearing apparel. Sunbolf v. Alford, 1 Horn & Hurlstone's Exch. 13. 3 Mees. & W. 248, S. C. (e) Lane v. Cotton, 12 Mod. 484. 1 Lord Raym. 646.

1 A lien is given to keepers of boarding-houses in New York by statute, Laws 1860, p. 771, who, at common law, are not under the responsibilities of innkeepers. Holder v. Soulby, 8 C. B. (N. S.) 254.

1

who, by his labor and skill, has imparted an additional value to the goods, has a lien upon the property for his reasonable charges. (a) A tailor or dyer is not bound to accept an employment from any one that offers it, and yet they have a particular lien, by the common law, upon the cloth placed in their hands to be dyed, or worked up into a garment. (b) The same right of a particular or specific lien applies to a miller, printer, tailor, wharfinger, warehouseman, or whoever takes property in the way of his trade or occupation, to bestow labor or expense upon it; and it extends to the whole of one entire work upon one single subject, in like manner as a carrier has a lien on the entire cargo for his whole freight. The lien exists equally, whether there be an agreement to pay a stipulated price, or only an implied contract to pay a reasonable price. (c) The old authorities, which went to establish the proposition that the lien did not exist in cases of a special agreement for the price, have been overruled, as contrary to reason and the principles of law; and it is now settled to exist equally, whether there be or be not an agreement for the price, unless there be a future time of payment fixed; and then the special agreement would be inconsistent with the right of lien, and would destroy it. (d)

(a) Grinnell v. Cook, 3 Hill (N. Y.) 491.

(b) Hob. 42. Yelv. 67. Green & Farmer, 4 Burr. 2214. Close v. Waterhouse, 6 East, 523, in notis.

(c) A lien at common law signifies the right of detention in persons who have bestowed labor upon an article, or done some act in reference to it, and who have this right of detention till reimbursed for their expenditure and labor. Whitman C. J., 24 Maine, 219.

(d) Blake v. Nicholson, 3 Maule & Selw. 168. Chase v. Westmore, 5 Ibid. 180. Crawshay v. Homfray, 4 B. & Ald. 50. Burdict v. Murray, 3 Vermont, 302. The statute laws of the states generally give a lien to mechanics and others on buildings, for labor bestowed and materials furnished in the erection of them, as well as a remedy personally against the owner who employed them.2 This is the case in Maine, Massachusetts,

1 The lien extends to all goods delivered under the contract, and is not confined to the portion on which the labor was bestowed. Morgan v. Congdon, 4 Comst. 551. An innkeeper has no lien upon a horse put in his stable, unless belonging to a guest. Fox v. McGregor, 11 Barb. (N. Y.) 41. Hickman v. Thomas, 16 Ala. 666. As to his lien on goods belonging to his guest, see Broadwood v. Granara, 28 Eng. L. & Eq. 443; Snead v. Watkins, 37 Itid. 384 A carrier receiving goods from a wrong-doer has no lien against the true owner. Stevens v B. & W. R. R. 8 Gray, 262.

2 The legislation of the several states exhibits a progressive inclination to extend the right of lien for the security of the claims of mechanics and laborers. By a statute in Connecticut.

1

If goods come to the possession of a person by finding, and he has been at trouble and expense about them, he has a

Connecticut, New York, (Act of New York, May 7, 1844,3) New Jersey, Pennsylvania. Ohio. In Ohio, the purchaser of a steamboat, with notice of a debt created on account of it by the original owner, takes the boat, subject to such debt. Steamboat Waverley v. Clements, 14 Ohio, 28. Indiana, Illinois, Kentucky, Mississippi, Tennessee, South Carolina, Alabama, Louisiana, Missouri, Michigan, &c. The New York Statutes of April 20, 1830, ch. 330, and of April 13, 1832, ch. 120, give, as to the city of New York, under contracts written or by parol, between the owner and builder, a lien on the moneys due from the owner to the contractor for the same. This privilege does not extend to the master-builder or contractor. He must rely on his contract with the owner of the ground. The New York statutes are remedial only to the creditors of the original contractors. 22 Wendell, 395. The lien by the New York Act of April 24th, 1844, ch. 220, is extended to persons under a contract with the owner or his agent, who shall perform labor or furnish materials upon any building or lot in the city. The lien to be upon the building and lot, and the mode of relief is prescribed; and by the Act of May 7, 1844, ch. 305, the same provision is extended to the several cities, and to some specified villages throughout the state. So also in South Carolina, the lien does not extend to sub-contractors, who undertake a part of the work from the original undertaker. 1 M'Mullan, 431. So, in Canada, a mason has a special privilege in the nature of a mortgage, upon buildings erected by him, and for repairs, and lasting for a year and a day. Jourdain v. Miville, Stuart (Lower Canada) 263. The Statute of Pennsylvania, of 16th June, 1836, gives a proceeding in rem, and the building itself is regarded as the principal debtor, and the ground as only an appurtenance to it, and sold with it. Bickel v. James, 7 Watts, 1. Purdon's Dig. 683. In the case of an unfinished house sold, and a mortgage taken from the purchaser, who afterwards went on and finished the house, the material men who finished the house and furnished the materials, were held entitled to priority of payment over the mortgagee. 2 Serg. & Rawle, 138. The mechanic's lien, under the Act of Pennsylvania of 1806, was on the building, without regard to the owner, and a sale under it would carry the right of the remainder-man, and reversioner and tenant. But the Act of 1840, confined the sale under the mechanic's lien to the title vested in the person in possession at the time the building was erected. O'Conner v. Warner, 4 Watts & Serg. 223. See, further, Hilliard's Abridgment of the American Law of Real Property, vol. i. 354-361 where, the laws and

every person having a claim to the amount of twenty dollars, for labor or material used in the erection of any building, is given a lien on the building and land; and such lien may be foreclosed as a mortgage. Acts of Conn. 1849, ch. 33.

There is a similar provision which extends also to vessels, in Vermont. Laws of Vermont, 1849. The laws of Rhode Island have a like provision, which includes canals, turnpikes, and railroads. Acts of R. I. 1847. Corresponding enactments are contained in the laws of Maine and Wisconsin. Laws of Maine, 1849, ch. 72. Laws of Wisconsin, 1849, ch. 120. 8 This Act extended to the cities of the state only, but has been repealed.

4 The New York Act of 1844 has been repealed, and in lieu thereof an Act was passed July 11, 1851, ch. 513, by which Act a lien is given to every person who shall, by virtue of any contract with an owner or his agent, or in pursuance of any agreement with such contractor, perform labor or furnish materials to any house or other building in the city. This statute has been expounded in a series of able decisions, in the New York Court of Common Pleas, reported in E. D. Smith's Reports.

*636 * lien upon the goods for a compensation in one case only, and that is the case of goods lost at sea, and it is a lien for salvage. (a) This lien is dictated by principles of commercial necessity, and it is thought to stand upon peculiar grounds of maritime policy. (b) It does not apply to cases of finding upon land; and though the taking care of property found for the owner be a meritorious act, and one which may entitle the party to a reasonable recompense, to be recovered in an action of assumpsit, it has been adjudged, (c) not to give a lien in favor of the finder; and he is bound to deliver up the chattel upon demand, and may then recur to his action for a compensation. If the rule was otherwise, says C. J. Eyre, ill-designed persons might turn boats and vessels adrift, in order that they might be paid for finding them; and it is best to put them to the burden of making out the quantum of their recompense to the satisfaction of a jury. The statute of New York (d) gives to the person who takes up strayed cattle, the right to demand a reasonable charge for keeping them; and, independent of that provision, there is no lien upon goods found.1

A general lien for a balance of accounts is founded on custom, and is not favored; and it requires strong evidence of a settled and uniform usage, or of a particular mode of dealing between

decisions in the several states respecting the lien of mechanics are fully collected and stated; and I take this occasion to observe, that this last work is one of great labor and intrinsic value. The New York law is deemed insufficient to satisfy contractors and furnishers of materials, and they are desirous to have it more extensive and efficient, and to prevent the transfer of the property until their claims are secured, and that the law be made to apply to all parts of the state."

(a) Hartford v. Jones, 2 Salk. 654. 1 Lord Raym. 393, S. C. Hamilton v. Davis, 5 Burr. 2732. Baring v. Day, 8 East, 57.

(b) Story J., 2 Mason, 88.

(c) Nicholson v. Chapman, 2 H. Blacks. 254.

(d) Laws of New York, sess. 30, ch. 2.

5 By an Act passed April 17, 1854, ch. 402, any person who may perform labor on any house, or building, or appurtenances, in certain counties therein named, and any resident of either of said counties who may furnish materials, is entitled to a lien. And by an Act passed in 1858, ch. 204, the provisions of the Act of 1854 are extended to all the counties of the state, except New York and Erie. For those counties special Acts exist.

1 If a certain reward be offered for the recovery of a lost article, the finder has a lien for the reward. Wentworth v. Day, 3 Metcalf, 352. But not if the reward offered be indefinite. Wilson v. Guyton, 8 Gill, 213. See, however, Baker v. Hoag, 7 Barb. (N. Y.) 113, where this limitation of the doctrine of Wentworth v. Day is not allowed.