Small v. Robinson

Appleton, C. J., This is an action of replevin for a pair of wheels and other parts of a hack, upon which the defendant claims a lion, by reason of work done by him upon them. The plaintiff is the owner of the hack. It was left for repairs by one Staples, who was in possession under a contract of purchase, the terms of which were unperformed. The defendant was aware of the plaintiff’s title. The presiding justice found that the plaintiff had never given Staples any authority to subject the hack to a lieu for repairs, and ruled that no such authority was to be implied, as a matter of law, from the relation of the parties. “ A lien,” observes Shaw, C. J., in Hollingsworth v. Dow, 19 Pick. 228, “ is a proprietary interest, a qualified ownership, and, in general, can only be created by the owner, or by some person by him authorized.” Here the fact of authority is negatived. [428] The plaintiff never became the debtor of the defendant, and never ' authorized the imposition of any lien on his property. Globe Works v. Wright, 106 Mass. 207. A mortgagor of horses cannot, without the knowledge, acquiescence and consent of the mortgagee, intrust the horses to be boarded so as to subject them to a lien for keeping, as against the mortgagee. Sargent v. Usher, 55 N. H. 287. Cushing, C. J., in the case last cited, says, “ I have seen no case in which it has been held that a party who permits another to have possession of his personal property, by so doing in law, constitutes that other his agent to sell or pledge the property.” So a bailee can give no lien upon property bailed, as against the owner. Gilson v. Gwinn, 107 Mass. 126. The defendant could acquire no title from Staples, when he had none. The exceptional case of the inn-keeper rests upon the principle that as he is by law bound to receive a guest and his goods, and might be liable to indictment for not so receiving them, he shall have a lien on such goods as he is bound to receive, whether owned by his guest or not. Exceptions overruled. Walton, Barrows, Yirgin and Libbey, JJ., concurred.