34 Vt. 468 | Vt. | 1861
The first question in this case is, whether Whipple, the plaintiff’s assignor, had any lien on the property which is the subject of the action, for the price of manufacturing it; and the second, whether if he had a lien, it was of such a character as to enable him to transfer it with the property by assignment to the plaintiff, so that the plaintiff could rightfully hold the property against the defendant. It is conceded that the general property' in the starch manufactured by Whipple was in the defendant.
I. A lien is a right to retain in one’s possession another’s property until some demand due to the person retaining has been satisfied. Hammond v. Barclay, 2 East 235. It is a settled principle that where a party has, in the way of his trade or occupation, bestowed his money, labor, or skill upon a chattel, in the alteration and improvement of its properties, or for the purpose of imparting an additional value to it, he has a lien upon it for a fair and reasonable remuneration, or for the contract price, if the price has been fixed by agreement; and this, though
II. The more important question is, whether Whipple’s lien was of sueli a character as would enable him to transfer it with the property by assignment-to the plaintiff. The rule, as generally stated by text writers, is that the right of lien is a personal-right which cannot be parted with, and that a person who has a lieu can not sell his right to another, nor can he transfer the property over which the lien extends, without losing his right, unless the property has been pledged to secure the payment of money advanced, with an express or implied power of sale. 2 Kent’s Comm., 642 ; Addison on Contract's, 1155. It is said by Burrek, J., in Lickbarrow v. Mason, 6 East 27, in notis, that he who ha3 a lien only on goods has no right to sell or dispose of them, but only to retain them until the original price be paid ; and the same profound jurist says, in Daubigny v. Duval, 5 D. & E. 604, that “alien is a personal right, and can. not be transferred to another.” An innkeeper who has a lien on the horse of his guest for his keeping has no right to sell the horse except by the. custom of London. Jones v. Pearle, 1 Str. 556; The case of an Hostler, Yelv. 67. In Holly v. Huggeford, 8 Pick.
We regard it as well established by the authorities referred to that Whipple’s right of lien was, while the property remained in his possession, a personal privilege which he could not sell or transfer except with the consent of the defendant, who was the general owner of the property; that possession was essential not only to the creation, but also to the continuance, of the lien: and that when Whipple parted with his dominion over the property, and suffered its locality to be changed, so as to put it out of his power to surrender it on demand to the general owner, on payment or tender of the price of manufacturing it, his right of lien was determined and forfeited. The transfer by Whipple' of his right of lien to the plaintiff was consequently inoperative, and passed no right or interest in the property to the plaintiff. A different view of the law of the case having been taken by the county court in the instructions given to the jury, the judgment of that aourt in favor of the plaintiff is reversed, and a new trial granted.