Bigelow v. Heaton

By the Court, Beardsley, J. That the plaintiff had a special property in the flour, in virtue of his lien for the freight, and that this continued so long as the flour remained in his possession, was not denied; nor was it denied that the flour had been, in fact, delivered to the defendant, to whom it was consigned. The judge seems to have held that the continuance of the lien, after such delivery of the flour, might depend upon the mere intent of the plaintiff’s agent, the captain of the boat, by whom the delivery was made; and that notwithstanding such delivery had been made, the lien would continue if the captain intended it should remain. This, I apprehend, cannot be maintained. An agreement between the parties, that the lien should continue, notwithstanding the delivery of the property, would present a different question: but a naked., [498] undivulged intent on the part of the person by whom the flour was delivered into the possession of the consignee, could in no respect qualify that act. A relinquishment of possession by one who has a lien on property, is an abandonment of the hen. This, as a general rule, is entirely settled. By a transfer of the possession the holder is deemed to yield up the security he has by means of the custody of the property, and to trust only to the responsibility of the owner, or other person liable for the charge. (Cross’ Law of Lien, 4, 31, 36, 38, 258; Sweet v. Pym, 1 East, 4; Kruger v. Wilcox, Amb. 252; Dicas v. Stockley, 7 C. & P. 587.) But if the party in whose favor the lien exists, is induced to surrender the possession of the property, by fraud or trick, the lien is not thereby divested. Upon this principle it was held, when this case was formerly before the court, that if the flour had been delivered to the defendant in consequence of his false and fraudulent promise to pay the freight as soon as the delivery was complete, such delivery did not amount to a waiver of the lien of the plaintiff, and he might, notwithstanding, maintain replevin against the defendant for the flour. (6 Hill, 43.) This was then regarded as the main point in the case; yet the judge, on the last trial, refused to instruct the jury, “ that the carrier, by delivering the property, waived his lien, in the absence of fraud.” This instruction, certainly, should have been given, for the principle stated admits of no doubt. There must be a new trial. New trial granted.