Cummings v. Harris

After the Court had considered the case, Hutchinson, C. J., delivered their opinion. — The only question this case presents, is, whether the defendant had a lien upon the sheep, by virtue of which he might lawfully retain them till he was paid for their keeping ; for, if he had no such lien, the plaintiff was entitled to such instructions to the jury, as were requested. The usual cases in which the law creates a lien, are, where the person performing services would have no other sure remedy ; as a blacksmith shoeing a horse for a stranger ; or a watchmaker cleaning a watch for a stranger ; or an innkeeper furnishing entertainment for travellers ; and,where the persons applying for these services are not strangers, the usage of their deal may be such, that the law will create a lien. For instance, the course of their deal may be, that payment for the services is always made before the property is taken away. But where the business is done under a personal contract, the law implies no lien ; but the parties may so form their contract asto create a lien, which the law will enforce. H ere was a personal contract; and no lien was created by the terms of it. Of course, the plaintiff was entitled to her sheep, and the defendant had a right of action to recover hi s pay for keeping them. But the defendant had no lien upon the sheep for his pay for such keeping. And, because the court did not so instruct the jury, the Judgement is reversed, and a new trial is granted.