Ames v. Palmer

May, J. In this case the jury were instructed that it was incumbent on the plaintiff to satisfy them, by proof, that he had a right of property in the goods sued for, and the right of immediate possession; and that, if they were satisfied from the evidence in the case, that the carrier had a lien for the freight, which had not been paid or waived, then the action could not be maintained. Upon the rendition of the verdict, the jury being inquired of by the Court, stated that they found for the defendants, upon the ground that the freight had not been paid and the claim of the carrier had not been waived. That a common carrier has a lien upon the goods transported by him, and a right to retain the possession, as against the general owner, until his reasonable charges are paid; and that the plaintiff, in an action of trover, cannot recover without proof of property in himself, and the right of immediate possession, is not questioned by the learned counsel in defence. Such is the law. It is, however, contended that the right to retain possession of the goods transported, which, by the common law, attaches to a common carrier, to enforce the payment of his charges, is of such a nature that it does not deprive the general owner [201] of the right to immediate possession, as against a wrongdoer; and constitutes no bar to the possession of the property, unless set up by the authority of the party holding such lien. Upon examination of the authorities we are of opinion that these positions are well maintained. It has been repeatedly decided, both in England and in this country, that the lien of a factor is a personal privilege which is not transferable, and that no question upon it can arise except between the principal and factor. Daubigny & als. v. Duval & al., 5 D. & E. 604; McCombie v. Davies, 7 East, 5; Jones v. Sinclair, 2 N. H., 319; Holly v. Huggeford, 8 Pick. 73. In this State the same principle has been adopted in relation to a statute lien. Pearsons v. Tinker, 36 Maine, 384. In the case of Holly v. Huggeford, just cited, it was argued in defence, that the lien of the factor so destroyed the right of possession in the general owner, that he could not maintain an action of trespass against an officer who had attached the goods as the property of the factor, but the Court decided that such a position was untenable; and Parker, C. J., says, that “ the lien of a factor does not dispossess the owner until the right is exerted by the factor. It is a privilege which he may avail himself of, or not, as he pleases. It continues only while the factor himself has the possession; and, therefore, if he pledges the goods for his own debt, or suffers them to be attached, or otherwise parts with them voluntarily, the lien is lost, and the owner may trace and recover them, or he may sue in trespass if they are forcibly taken ; for his constructive possession continued notwithstanding the lien.” No reason is apparent why the same consequences should not attach to the lien of a common carrier as to that of a factor. In both cases the nature of the lien is the same. Both are common law liens; and such a lien has very properly been defined to be the right of detaining the property, on which it operates, until the claims which are the basis of the lien, are satisfied. Hammond v. Barclay, 2 East, 235; Oakes v. Moore & al. 24 Maine, 214. The object of those liens being the same, their effect must be the same. Ubi eadem ratio ibi idem [202] jus. The lien, therefore, of a common carrier, does not deprive the owner of the goods of his right to immediate possession, as against a tort feasor. The Judge presiding at the trial, therefore, erred in instructing the jury, that if they were satisfied that the carrier had a lien for the freight, which had not been paid or waived, the plaintiff could not recover. Exceptions sustained and new trial granted. Tenney, C. J., and Hathaway, Appleton and Goodenow, J. J., concurred.