Sensenbrenner v. Mathews

Eyast, O. J". The shops of the appellant, Schweitzer and Maxwell, although in the same building, were held by them respectively in severalty; and the .right of way of Maxwell, although passing through the shops of the appellant or Schweitzer, was part of his holding and used by him of his own right. The buggy belonging to Maxwell was delivered to him through the right of way by the appellant, after it had been ironed by the latter. It was delivered with the expectation that it should be painted by Maxwell; but Maxwell owed no duty, either to Schweitzer or the appellant, to paint it. The delivery was unconditional, and the buggy must be taken to have been delivered to Maxwell in his right as owner of it. This delivery operated as an absolute waiver of all lien of the appellant for ironing the buggy.' The essence of lien, in such cases, is possession. Lien cannot survive possession; and except in case of fraud, and perhaps mistake, such a lien cannot be restored by resumption of possession. “ Lien is a right to hold possession of another’s property for the satisfaction of some charge attached to it. The essence of the right is possession; and whether that possession be of officers of the law or of the person who claims the right of lien, the chattel on which the lien attaches is equally regarded as in the cus [254] tody of the law. Lieu is neither a jus ad rem nor a jus in re, but a simple right of retainer.” 3 Parsons’ Cont., 234. ' “ The voluntary parting with the possession of the goods will amount to a waiver or surrender of a lien; for, as it is a right founded upon possession, it must ordinarily cease when the possession ceases.” Story’s Ag., § 367. As this disposes of the lien set up by the appellant to support this action, it is immaterial how the respondents came into possession. In replevin, a plaintiff recovers on his own right of possession, not on the weakness of the defendant’s right. By the Court. — The judgment'of the court below is affirmed. *