57 Conn. 547 | Conn. | 1889
The plaintiff brought an action of replevin against the defendant for a horse, a wagon, a harness, a whip and two robes. The trial court rendered judgment that he retain possession of all the chattels but the horse, and that he should return the horse to the possession of the defendant. From that judgment the plaintiff appeals.
The defendant claimed the right to detain the horse in his possession until the debt of $48 was paid, by virtue of his lien thereon for its keeping and feeding. The plaintiff, on the other hand, asked the court to rule that the lien of the defendant on the horse for its keeping and feeding was divested when the horse was taken from his immediate possession, without objection on his part, by the owner of the horse, and by such owner sold and delivered to the plaintiff, an innocent purchaser for value; and that the lien did not revive when the horse was returned to the defendant’s stable by the plaintiff. The court did not so rule, but rendered judgment for the return of the horse as above stated.
A lien is the right which a creditor has of detaining in his possession the goods of his debtor until the debt is paid. To the common law idea of a lien it is necessary that the creditor should have the actual possession of the goods over which the lien is claimed and that the debt should have been incurred in respect to the very goods detained. As possession is the foundation of the common law lien, any parting with the possession operates as a waiver or forfeiture of it. “A lien is a mere right to retain possession of a chattel, which right is immediately lost on the possession being parted with.” Cockbukn, C. J., in Donalds v. Suckling, L. R., 1 Q. B., 612. See also Story on Bailments, § 311,
It is admitted by the defendant’s counsel that he would have no right of lien except for the statute. Gen. Statutes, § 8047. This statute gives a lien in cases where the common law does not give one. Miller v. Marston, 35 Maine, 153; Goodrich v. Willard, 7 Gray, 183; Judson v. Etheridge, 1 Crompt. & Mees., 724. Jackson v. Cummings, 5 Mees. & Wels., 342; Parsons v. Ginzell, 2 Com. Bench, 544. But there is no intimation in the statute that it uses the word “lien” in any different sense from that which it has in the common law. On the contrary the statute seems to use that word in its precise common law meaning. It creates a lien in favor of the “keeper”—that is, the one in possession—of animals. It says that' the animals, naming the kind, “shall be subject to a lien for the price of such keeping in favor of the person keeping the same until such debt is paid.”
This is the exact idea of the common law, the right of a creditor to detain the property of his debtor in his possession till the debt is paid.
In all cases where statutes have created any right of security on the property of a debtor in the nature of a lien, not depending on possession, they have provided carefully for a registration of the transaction.
The contract between Bohan and the defendant, as interpreted by their usage, was such that Bohan had the right to take the horse at any time from the stable for the purposé of using it. The plaintiff claims that a livery stable keeper who holds a horse at the constant disposal of the owner is the mere servant of the owner and does not have any such possession as would invest him with the right of lien. We do not decide the point. On the finding Ave must assume that Bohan rightfully took the horse from the defendant’s stable and sold it to the plaintiff. This was a transaction which divested the lien. Whatever right the defendant might have had to detain the horse as against Bohan, we are of opinion he had none against the plaintiff.
In this opinion the other judges concurred.