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bring it within the principles which justify the lien claimed by the defendants, and, therefore, judgment for the plaintiffs must be entered upon the verdict for their damages for the detention of the goods replevied, and for their costs.
C. Loss of Lien.
JONES v. PEARLE.
(Reported 1 Stra. 557.) In trover for three horses, the defendant pleaded, that he kept a public inn at Glastenbury, and that the plaintiff was a carrier and used to set up his horses there, and £36 being due to him for the keeping the horses, which was more than they were worth, he detained and sold them, prout ei bene licuit; and on demurrer judgment was given for the plaintiff, an innkeeper having no power to sell horses, except within the city of London. 2 Roll. Abr. 85 ; 1 Vent. 71 ; Mo. 876 ; Yel. 67. And besides, when the horses had been once out, the power of detaining them for what was due before did not subsist at their coming in again. Wilkins v. Carmichael Doug. 105; Co. Bank. Laws 516, 3 ed.
M'COMBIE v. DAVIES.
(Reported 7 East, 5.) This action of trover for tobacco having gone to a second trial, in consequence of the opinion of the court delivered in Trinity term last, 6 East, 538, when it was considered that the defendant's taking an assignment of the tobacco in the King's warehouse by way of pledge from one Coddan, a broker, who had purchased it there in his own name for his principal, the plaintiff (after which assignment the tobacco stood in the defendant's name in the warehouse, and could only be taken out by his authority), and the defendant's refusing to deliver it to the plaintiff after notice and demand by him, amounted to a conversion. The defence set up at the second trial was, that the plaintiff being indebted to Coddan his broker in £30 on the balance of his account; and he having a lien upon the tobacco to that amount while it continued in bis name and possession, the defendant who claimed by assignment
The delen Coddan his b the tobaccocendant who
1 Robinson v. Baker, 5 Cush. 137; accord. Contra, semble, Waugh v. Denham, 16 Ir. C. L. 405; and King v. Richards, 6 Whart. 418.
from Coddan for a valuable consideration stood in his place and was entitled to retain the tobacco for that sum; and therefore that the plaintiff not having tendered this £30 ought to be nonsuited. Lord E'lenborough, C. J., however, being of opinion that the lien was personal, and could not be transferred by the tortious act of the broker pledging the goods of his principal, the plaintiff recovered a verdict for the value of the tobacco.
The Solicitor-General now moved to set aside the verdict, and either to enter a nonsuit or have a new trial ; upon the ground that the defendant who stood in the place of Coddan, and was entitled to avail himself of all the rights which Coddan had against his principal, could not have the goods taken out of his hands by the principal without receiving the amount of Coddan's claim upon them. And in answer to the case of Daubigny v. Duval, 5 Term Rep. 604 (which was suggested as establishing a contrary doctrine), he observed that Lord Kenyon was of opinion at the trial, that the principat could not recover his goods from the pawnee, to whom they had been pledged by the factor, without tendering to the pawnee the sum advanced by him, which was within the amount of the factor's lien upon the goods for his general balance; and that his Lordship seemed to retain that opinion when the case was moved in court, though the rest of the bench differed from him. But
LORD ELLENBOROUGH, C. J., said, that nothing could be clearer than that liens were personal, and could not be transferred to third persons br any tortious pledge of the principal's goods. That whether or not a lien might follow goods in the hands of a third person to whom it was delivered over by the party having the lien, purporting to transfer his right of lien to the other, as his servant, and in his name, and as a continuance in effect of his own possession; yet it was quite clear that a lien could not be transferred by the tortious act of a broker pledging the goods of his principal, which he had no authority to do. That in Daubigny v. Duval, though Lord Kenyon was at first of opinion that there ought to have been a tender to the pawnee of the sum for which the goods had been pledged by the factor, within the extent of his lien, in order to entitle the plaintiff to recover; yet after the rest of the court had expressed a different opinion, on which he at that time only stated his doubts, he appears in the subsequent case of Sweet and another, Assignees of Gard v. Pym, 1 East, 4, to have fully acceded to their opinion; for he there states that “ the right of lien has never been carried further than while the goods continue in the possession of the party claiming it.” And afterwards he says, “In the case of Kinloch v. Craig, 3 Term Rep. 119, afterwards in Dom. Proc. ib. 786, where I had the misfortune to differ from iny brethren, it was strongly insisted that the right of lien extended beyond the time of actual possession ; but the contrary was ruled by this court, and afterwards in the House of Lords.”
His Lordship then, after consulting with the other judges, declared