quently, can resort to it alone for compensation. If the defendants are the agents of the New York & Michigan Line, they are bound by the contract of affreightment which that line made; and to entitle them to freight (had it not been paid in advance), they should show that contract strictly and fully performed, by a delivery of the goods to the consignees named in the contract. It is not sufficient that the goods arrive at the port of destination, but there must be a delivery of them to perfect the right to freight. Ab. on Sh. 273. It is a general and an acknowledged rule, that the voyage must be performed according to the contract, before the ship owner or master can demand his freight. Conveyance and delivery of the cargo are conditions precedent, and must be fulfilled. A partial performance is not sufficient, unless delivery be dispensed with, or prevented by the owner. Palmer v. Lorrillard, 16 Johns. R. 356.

If the goods came to the hands of the defendants or their principals, without the agency of those who control the New York & Michigan Line, with or without fraud, as by finding them in a storehouse, or on a wharf at Whitehall, Albany, Buffalo, or elsewhere, it would not vary the

case.

If goods came to the possession of a person by finding, and he has been at trouble and expense about them, he has a lien upon the goods for compensation, in one case only, and that is the case of goods lost at sea; then there is a lien for salvage. This lien is allowed upon principles of commercial necessity, and is thought to stand upon peculiar grounds of maritime policy, and does not apply to cases of finding upon land. 2 Mason R. 88; 2 Kent's Com. 635, and numerous cases there cited.

But it is insisted by the plaintiffs that a lien can only be created when the relation of debtor and creditor exists between the parties.

A lien is defined to be a tie, hold, or security upon goods or other things, which a man has in his custody, till he is paid what is due him. 2 Pet. Dig. 692.

In the case of the United States v. Barney, it was held that a lien cannot exist against the government; for liens are only known or admitted in cases where the relation of debtor and creditor exists, so as to maintain a suit at law for the debt or duty which gives rise to the lien, in case the pledge be destroyed or the possession lost. An innkeeper cannot, therefore, upon the ground of a lien, justify the arrest and detention of the horses employed in the transportation of the public mails. 2 Pet. Dig. 693; 3 Hall's Law Jour. 128. In Oppenheim v. Russell, 3 B. & P. 49, Justice Heath says: "There is a certain privity of contract between the consignor of goods and the carrier, and it is evident that there is this privity of contract from this consideration, that if the consignee cannot be found, or refuse to receive the goods, the carrier may come upon the consignor for the carriage of the goods, which he could not do, unless there was a privity of contract between them." Is not the principle decided in these cases perfectly conclusive of the rights

refuse to deliver them, trover lies at the suit of the owner. In Hoffman v. Carrow, 22 Wend. 318, the court say: "The doctrine of our decision is, that the original and true owner of moveable property who has not, by his own act or assent, given a color of title or an apparent right of sale to another, may recover its value from any one having it in possession, and refusing to deliver it up to him."

If it be said for the defendants that Allen, the master of the vessel on which the goods were originally shipped, or Eddy & Bascomb, the wharfingers and forwarders to whose care at Whitehall they were consigned, delivered them to the defendants, or to those from whom they received them, it may be replied, that if such were the fact it would not affect the rights of the plaintiffs, or the liabilities of the defendants, under the facts found by the special verdict in this case.

The jury have found that the plaintiffs contracted with the New York & Michigan Line to transport their goods to Detroit, and paid them the stipulated price for the carriage, in advance. The only power over the goods which that line derived from their contract with the plaintiffs was to safely carry and deliver them at the place of consignment. They had no authority to transfer them to any other line, and make the plaintiff's chargeable for the freight. And the defendants, under such a transfer, could acquire no right to compensation for freight as against the plaintiffs.

Nor had Eddy & Bascomb, from any fact appearing in the case, any authority to forward the goods, from Whitehall, by any conveyance other than that which the plaintiffs had directed, and which appeared upon the bill of lading that accompanied the goods. A special authority must be strictly pursued; and whoever deals with an agent constituted for a special purpose, deals at his peril, when the agent passes the precise limits of his power. 2 Kent's Com. 631. No one can transfer to another a better title than he has himself, or a greater interest in personal property than he or the person for whom he acts possesses. Hoffman v. Carrow, before cited.

To create a lien, it is necessary that the party vesting it should have the power to do so. A person can neither acquire a lien by his own wrongful act, nor can he retain one, when he obtains possession of goods without the consent of the owner, express or implied. 5 T. R. 606; 1 Saund. Pl. & Ev. 326; 2 Stark. Ev. 360; Andrew v. Dietrich, 14 Wend. 31.

It is quite clear that from no delivery made of the goods in question, by the original carriers, to the Merchants' Line, can any contract be implied that the plaintiffs would pay them for the freight, and thus lay the foundation for the lien claimed.

But if it be admitted that the owners or agents of the New York & Michigan Line, delivered the plaintiffs' goods to the defendants, or to those for whom they acted, they must be presumed to have received them as the agents of that line, and to have transported them from Albany to Detroit, for and on account of that line; and they, conse

quently, can resort to it alone for compensation. If the defendants are the agents of the New York & Michigan Line, they are bound by the contract of affreightment which that line made; and to entitle them to freight (had it not been paid in advance), they should show that contract strictly and fully performed, by a delivery of the goods to the consignees named in the contract. It is not sufficient that the goods arrive at the port of destination, but there must be a delivery of them to perfect the right to freight. Ab. on Sh. 273. It is a general and an acknowledged rule, that the voyage must be performed according to the contract, before the ship owner or master can demand his freight. Conveyance and delivery of the cargo are conditions precedent, and must be fulfilled. A partial performance is not sufficient, unless delivery be dispensed with, or prevented by the owner. Palmer v. Lor

rillard, 16 Johns. R. 356.

If the goods came to the hands of the defendants or their principals, without the agency of those who control the New York & Michigan Line, with or without fraud, as by finding them in a storehouse, or on a wharf at Whitehall, Albany, Buffalo, or elsewhere, it would not vary the

case.

If goods came to the possession of a person by finding, and he has been at trouble and expense about them, he has a lien upon the goods for compensation, in one case only, and that is the case of goods lost at sea; then there is a lien for salvage. This lien is allowed upon principles of commercial necessity, and is thought to stand upon peculiar grounds of maritime policy, and does not apply to cases of finding upon land. 2 Mason R. 88; 2 Kent's Com. 635, and numerous cases there cited.

But it is insisted by the plaintiffs that a lien can only be created when the relation of debtor and creditor exists between the parties.

A lien is defined to be a tie, hold, or security upon goods or other things, which a man has in his custody, till he is paid what is due him. 2 Pet. Dig. 692.

In the case of the United States v. Barney, it was held that a lien cannot exist against the government; for liens are only known or admitted in cases where the relation of debtor and creditor exists, so as to maintain a suit at law for the debt or duty which gives rise to the lien, in case the pledge be destroyed or the possession lost. An innkeeper cannot, therefore, upon the ground of a lien, justify the arrest and detention of the horses employed in the transportation of the public mails. 2 Pet. Dig. 693; 3 Hall's Law Jour. 128. In Oppenheim v. Russell, 3 B. & P. 49, Justice Heath says: "There is a certain privity of contract between the consignor of goods and the carrier, and it is evident that there is this privity of contract from this consideration, that if the consignee cannot be found, or refuse to receive the goods, the carrier may come upon the consignor for the carriage of the goods, which he could not do, unless there was a privity of contract between them." Is not the principle decided in these cases perfectly conclusive of the rights

of the parties to this suit? It seems to me to be a proposition too plain to be controverted. That one man cannot, by his own act, make another his debtor, without his consent, will not be questioned. Consequently, it is not sufficient to create the relation of debtor and creditor, that the plaintiff should have rendered services to the defendant, without also showing that the defendant assented to the services, and expressly or impliedly agreed to remunerate the plaintiff for them. tholomew v. Jackson, 20 Johns. 28, is a strong case upon this point. The action was assumpsit, for removing a stack of wheat, without the knowledge of the defendant, to prevent its being burned. The court, in their decision of the case, adopt this language: "The plaintiff' performed the service without the privity or request of the defendant, and there was, in fact, no promise, express or implied." Everts v. Adums, 12 John. 352, where the plaintiff furnished medicines for a town pauper, and sought to charge the overseers of the poor, and Dunbar v. Williams, 10 Johns. 249, where the plaintiff provided medicines to defendant's slave, without the knowledge of the owner, and numerous kindred cases, are to the same effect.

Schmaling v. Thomlinson, 6 Taunt. 147, bears directly upon the question involved in this case. The action was for commission, work and labor, and money paid for shipping and forwarding the goods of the defendants from London to Amsterdam. The defendants employed Aldibert, Becker & Co. to perform the business, and they employed the plaintiffs, who had no communication with, or knowledge of the defendants. The plaintiffs forwarded the goods as directed. The court decided there was no privity between the plaintiffs and defendants; that the defendants looked to Aldibert, Becker & Co. for the performance of their business, and Aldibert, Becker & Co., and they only, had a right to look to the defendants for payment. There the forwarder delivered the goods and sued for the carriage, &c. Here the defendants refused to deliver the goods, and insisted on their right to a lien. The principle involved, however, is the same in both cases, if it be admitted that

there must be a debt to sustain a lien.

Finally, on a full and careful consideration of 41°