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tress a

the
was for
1400 dollars

and the court refus

a new trial on the

cation and of respectable connexions. She had been employed a schoolmis nine or ten years as a school-mistress, in the town where the gainst a parties belonged, and in other towns, and was much respected wealth and in that employment. The defendant had been for many years a influence, representative from the same town, twice a senator from the her of want county, was a magistrate of very respectable character, and the of chastity: most wealthy inhabitant of the town.

The jury found a verdict for the plaintiff for 1,400 dollars dun.ages; damages.

Motion for a new trial, because the damages were excessive. cu to grant

Per Cur. Wilde, J. As to the damages, they are certainly large, perhaps too large, but not so extravagant as to justify the ground of interference of the court. We do not doubt our power to grant damages. new trials, on the ground of excessive damages, in cases of personal torts; and when they are clearly excessive, and greatly disproportionate to the injury proved, we are bound to interpose, But"a strong case must be made out; and this does not appear to us to be such a case, considering the aggravated nature of the charge, and the situation of the parties. The plaintiff being an unprotected female, having nothing whereon to depend but unblemished reputation, and the defendant being a man of wealth and influence, we cannot say that the damages are clearly exorbitant.

Motion overruled.

excessive

2.

CLARK v. BINNEY, March T. 1824, 2 Pick. Mass. Rep. 113*

S. P. TILLOTSON v. CHEETHAM, 2 Johns. N. Y. Rep. 74;
CoFrin v. COFFIN, 4 Mass. Rep. 41; SOUTHWICK V.
STEVENS, 10 Lohns. Rep. 443; COLEMAN V. SOUTIWICK,
9 Johns Rep. 45; BODWELL v. Osgood, 3 Pick. Mass.

Rep. 379,
Action for libel.

A verdict

will not be The court held, that the law was well settled, that no new set aside for trial would be granted, nor would the court interfere in relation excessive

damages un to the amount of damages, unless they were flagrantly outrage- less they ous and extravagant. A case'must be very gross, and the re- grantly out covery enormous, to justify our interposition on a mere question raccousas. of damages. We have no standard by which we can measure jory were

actuated by the just amount, and ascertain the excess.

It is a matter resting passion, pre in the sound discretion of the jury.

judice, &c.

Zient.

1. DEFINITION OF, p. 444.
II. LIENS BY EXPRESS CONTRACT, p. 445.
III. LIENS BY LEGAL RELATION, p. 447.
IV. GENERAL LIENS, p. 454.

V. RIGHTS OF PARTY CLAIMING LIENS, p. 455.
VI. DETERMINATION OF LIENS, p. 456.

I. DEFINITION OF..

1.

Definition.

SUMNER V. HAMLET, Oct, T. 1831, 12 Pick. Mass. Rep. 76.

Stanley & Co. who owned and conducted a manufactory, were indebted to the defendant,and they to secure himthe debt, selected a quantity of flannel, unfinished, and placed it in the care of one Guild, to keep for him in one of the rooms of the factory. Before the flannel was finished, and while it was in the factory it was attached by the plaintiff, as the goods of Stanley & Co. and was suffered to remain there to be finished, and while the goods were being finished, they were removed by the defendant,

The question was, whether the defendant had a lien upon the goods, and whether he had a right to take them out of the hands of an attaching officer.

Per Cur. Shaw, C. J. The only question which the court have thought it necessary to consider in the present case is, whether the defendant had a lien upon these goods, and a right to retain possession of them; and the court are of opinion, that he had. A lien is the right to the custody of property of anoiher, with a right to hold and retain the same against the general owner, as indemnity, or for security for some debt or obligation; Wilsop v. Balfour, 2 Camp. 579. Possession is essential to the creation and continuance of the lien, by a party claiming it, or some other person for his use, or as his agent. Here so long as the claim of the defendant stood upon the executory agreement of Stanley and Co. it did not amount to a lien. But it is proved, by the agreement of that house, that Guild was `authorised to select and set apart, and to hold and retain forty-five pieces of unfinished cloth, for the use of the defendant, that in pursuance of this agreement, and upon the requisition of the defendant, before the attachment, Guild executed this authority and selected the flannel for which this action is brought, gave notice thereof to one of the house, and to his own attendants, and soon after the attachment to one of the attaching creditors. We are of opinion, that the selecting and setting a part of these pieces by Guild, in pursuance of an authority previously given him by the proprietors before the claim of any other person intervened, constituted a lien thereon, for the indemnity and security of the defendant to the same effect as if the same selection and appropriation had been made by the proprietors themselves. And as there was a sufficient contract of pledge, and an actual selection and constructive delivery, in pursuance of that contract, by a delivery to an agent for the defendant, and that possession retained up to the time of the attachment, we are of opinion that the defendant had a lien on the goods, which the plaintiff could not defeat by the attachment.

* A lien is the right of an agent to retain possession of property until some demand of his be satisfied. It is created by the common law, or by the usages of trade, or by express agreement, or particular usage of the partier; 2 Kent's Com. p. 634, referring to Ld. Mansfield's definition in Groen v. Farmer, 4 Burr. 2221.

2.

ALLEN v.' OGDEN, Oct T. 1804, 1 Wash. U. S. C. C. Rep. 174.

JARVIS v. ROGERS, 15 Mass. Rep. 394. Held by the court, Washington, J. that liens depend upon Liens do contracts, express or implied, and none can be implied where contracts the defendant acts adversely to the right of the person for express or

. whom he has paid money.*

3. CLEMSON v. Davidson, March T. 1811, 5 Binney's Penn. Rep.

p. 398.

Held by the court, that possession is essential to a lien on cor- And posses poreal chattels.

is sential.

II. LIENS BY EXPRESS CONTRACT.

1. CUMMINGS v. HARRIS, March T. 1831, 2 Vt. Rep. 244. Trover for sheep.

There is no

lien by im The plaintiff proved a contract, by which the defendant ac

plication * Where the intervention of a jury is necessary to settle the amount, no lien can exist except by express contract; Philips v. Rodie, 15 East. 547. And there is no lien where the transaction is unconnected with the ordinary course of dealing; Walker v. Birch, 6 T. Rep. 258.

+ Where a party has the absolute disposition of property, he may vest in another the right of lien, Hollis v. Claridge, 4 Taun. 807. And a servant acting in the usual Vol. VI.

57

where there knowledged he had received the sheep in question, and was to is a con tract.

keep them a certain period, and shear them at so much per head. The defendant sheared them and delivered the fleeces. The plaintiff also prored a demand of the sheep, and a refusal of the defendant to deliver them up.

Per Cur. Hutchinson, C. J. 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.

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 service 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 as to create a lien, which the law will en force. Here was a personal contract and no lien was created by the terms of it. And the plaintiff is entitled to her sheep.

2. MERRIL v. BARTLETT, Nov. T. 1827, 6 Pick. Mass. Rep. 46. Where two Held by the court, that where two persons, build a ship as tenLuild a ship

ants in common, and one adrances more than his proportion of for cominon, the expenses, he has no lien upon the ship for the balance.

Per Parker, C. J. For all which Sergeant advances towards

as tenants

and one ad Vull.ces

scope of his employment, may create a lien; Hussey v. Christie, 9 East. 433. But a party gaining possession of property by a wrongful act, acquires no lien; Griffith v. Flyde, Sel. N. P. 155. Or by fraudulently misrepresenting facts; Madden v. Kempster, 1 Campb. 12. Or incurring expense upon an article without the consent of the owner; Lemprieel v. Parley, 2 T. R. 485. Per Ld. Eldon. I am of opinion thai, though the statue of limitatiens has run against a demand, if the creditor obtain possession of goods on which he has a hen for a general balance, he may hold them for that demand, by virtue of the lien; Spcars v. Hartley, 3 Esp. 81. And where goods are deposited with a factor for sale, and he agrees to pay the proceeds of the sale to the principal, there is no lien for a general ballance; Walker v. Cald. well, 6 T. R. 258; Lawson v. Dickinson, 8 Mod. 306. And in all cas es where a party enters into a contract inconsistent with the right of lien, he cannot retain the property; Hutton v. Bragg, 2 Marsh. 345. And where the owner of a ship to whom freight was duo, received bills of the shipper, which bo approved; held, that the lien for the freight was gone; Horncastlo v. Farren, 3 B. & A. 497. A person has & lien upon property placed in his possession, as a consideration of his acceptance of a bili which he is liable to pay; Hammond v. Barclay, 1 East. 227.

the share of Edwards, he was his creditor, and he had only the more than same right as other creditors to attach his interest in the ship, has no lien and other property belonging to him. One tenant in common of in the ship a chattel cannot acquire title to the whole.chattel, merely by be- ance. coming creditor of his fellows.

3.

BRADEN, ET AL.V. GARDNER, March T.1827, 4 Pick.Mass. Rep.

p. 456.

ei's.

The defendant owned three-fourths, and one Howland one. Or of a ves

sel and car fourth of a vessel. The defendant drew a bill on the master go of one of for ten thousand dollars, which was paid out of the proceeeds several own of the cargo. Howland assigned his interest in the vessel and cargo to the plaintiffs, and they claimed to have the amount of the bill charged on the several proportions of the proceeds of the vessel and cargo. Howland was indebted to the defendant.

Verdict for plaintiffs.

Per Cur. The defendant seems to consider that he had a lien upon all the proceeds of the vessel and cargo, to secure such advances as he may have made to Howland before the vessel sailed, and even between that time and the assignment of Howland to the plaintiffs, or for any general balance of accounts in his favor; but there is no semblance of a lien in the case.

4.

vances.

dence.

ALLEN V. MEGGUIRE. May T. 1819, 15 Mass. Rep. 490; (461

2d ed.) JARVIS v. Rogers, ib. 392. Per Cur. A factor or other person, in whom confidence is re- goods are

Or where posed has a right to retain having a lien for commissions and ad-delivered But a mere creditor, happening to have in his posses- or confi

upon a trust sion specific'articles belonging to his debtor, has no lien upon them.

Parker, C. J. I have never heard or seen any judicial decision, tending to prove, that if a creditor accidentally gets possession of his debtor's goods; or if his debtor commits them to him on a particular trust or confidence, the creditor has a right to retain them as security for his debt.

III. LIENS BY LEGAL RELATION.

1.

ALLEN V. MEGUIRE, May T. 1819, 15 Mass Rep. 461; S. P.

JAXES V. ROGERS, ib. 414; BARD ET AL. V. STEWART

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