
    Lloyd and others against Holly.
    Fairfield,
    June, 1831.
    A., being the general owner of certain hat bodies, which were in the possession of B., who had manufactured them, and who had a lien on them for the balance of his account, amounting to 491 dollars, made and delivered to C., on the 3rd of April, a writing in these words: “For value received, I hereby assign, transfer and sell to C., in payment of my debt to him, all the hat bodies belonging to me, estimated at from 1600 to 2000, in the possession of B.; C. paying to B. whatever balance is justly due to him from me for his labour expended upon said bodies, so far as he has a lien on them, for said balance.” Of this assignment C. gave notice to B. on the 8th of April; and in October following, C. tendered to B. 95 dollars, in satisfaction of his lien, and demanded the property, which B. refused to deliver. Immediately after notice of the assignment, B. attached these hat bodies for his balance against A.; and in November, while they were in the possession of the officer, under such attachment, C. brought trover against the officer. Held, that the assignment to C. was conditional; and that without payment or tender of the balance due to B. no title was acquired by C., and consequently, he could not recover.
    Qu. Whether if a person having a lien on the property of another in his possession, for the balance of his account, attaches that property, in consequence of which it is put in custody of the law, he thereby waives or relinquishes his lien.
    This was an action of trover, for 2000 hat bodies, by writ dated November 4th, 1828.
    The cause was tried at Fairfield, December term, 1830, before Hosmer, Ch. J.
    On the 3rd of April, 1828, William Harrington was the general owner of 1600 of the hat bodies mentioned in the plaintiffs’ declaration; and he, at the same time, owed the plaintiffs a debt of 293 dollars, 18 cents, being the balance of their mutual book accounts. The plaintiffs claimed title to the hat bodies in question under an assignment from Harrington, made on the 3d of April 1828, in the following terms: “For value received, I hereby assign, transfer and sell to Messrs. Lloyd & White, merchants in fur and wool in the city of New-York, all the hat bodies belonging to me, now in the possession of Alfred Pennoyer of Darien in Connecticut: And I hereby authorize them to demand and receive all said hat bodies of said Pennoyer, the number thereof not being known, but estimated at from 1600 to 2000; they paying to said Pennoyer whatever balance is justly due to him from me for his labour expended upon said bodies, so far as he has a lien on said bodies, or a part thereof, for said balance. The said bodies hereby assigned to be appropriated to payment of my debt to said Lloyd & White. Stamford, April 3rd, 1828. [Signed.] William Harrington.”
    
    The hat bodies, which were in the possession of Pennoyer, on the 3rd, remained in his possession until and through the 8th of April, 1828. In the course of that day, the plaintiffs notified Pennoyer of the assignment, giving him to understand, that they should hold him responsible to them for the hat bodies beyond his legal lien thereon.
    On the 11th of October, 1828, the plaintiffs tendered to the defendant the sum of 95 dollars, in satisfaction of the lien on the hat bodies mentioned in the assignment, and demanded them; which he refused to deliver.
    Some time in the month of January 1826, Pennoyer, having a large claim against Harrington for the manufacture of hat bodies, attached certain wool and hat bodies belonging to Harrington in Pennoyer's possession; and afterwards, in the course of the same month, it was agreed between them, that Pennoyer should withdraw his suit, and continue to manufacture hat bodies for Harrington from that time to the 1st of April following, when Harrington was to pay the amount which should then be due to Pennoyer, and on failure of such payment, Pennoyer should have a lien on all the wool and hat bodies of Harrington in Pennoyer’s possession, which should be left with Pennoyer to secure the payment of such debt.
    On the 8th of April, 1828, Pennoyer, after he had received notice of the assignment, prayed out a writ of attachment against Harrington, which, on the oath of Pennoyer, was directed to the defendant, as an indifferent person, to serve; but the certificate of the magistrate who directed it, did not shew, that the oath was administered in the words prescribed by the statute. This writ of attachment, the defendant, by Pennoyer’s direction, levied on the hat bodies, which had been made by Pennoyer, for Harrington, under said agreement, before the 1st of April, 1828, and took them into his possession. Soon afterwards, in the month of April, Pennoyer, for a valuable consideration, assigned his demand against Harrington, which then amounted to 491 dollars, 13 cents, and which had arisen exclusively from the manufacturing of hat bodies, previous to the 1st of April 1828, to Simeon H. Minor Esq. The property so attached remained in the custody of the defendant, from the time of the levy until after the commencement of this suit. In February, 1829, Minor, in the name of Pennoyer, recovered a judgment in said suit against Harrington, for the amount of said debt and costs, and caused an execution issued on such judgment to be levied on the hat bodies, which were sold at the post, on the 1st of April 1829, From January 1828, to the commencement of this suit, Harrington was insolvent.
    Upon these facts sundry points arose, on which the parties respectively prayed for a direction to the jury in their favour; but some of these it is not now necessary to state. Among other matters, (here omitted,) the Chief Justice instructed the jury, That the parting, by Pennoyer, with the possession of the hat bodies,not to a servant or agent to hold for him, but by giving up the uncontroulable possession to another, without notice of the lien upon them, was in law a waiver and extinguishment of the lien: That if Pennoyer had, at the date of the assignment to the plaintiffs, and until notice thereof, a lien on the hat bodies in security of his demand against Harrington, the plaintiffs, by their assignment, were not bound to pay to Pennoyer, or his assignee, any part of his demand, if the lien was waived or extinguished, and did not subsist at the time of their tender: That Pennoyer’s proceeding by attachment was inconsistent with an intentional retainer of the possession and with a continuance of the lien; by the voluntary selection of a new remedy, and the surrendering up of the possession to the defendant beyond his controul.
    The jury gave a verdict for the plaintiffs; and the defendant moved for a new trial for a misdirection.
    
      N. Smith and Betts, in support of the motion,
    contended, (inter alia,) 1. That the writing executed by Harrington, did not vest in the plaintiffs a title as general owners; as this transfer was a conditional one, and the plaintiffs never performed the condition. Wheeler & ux. v. Walker, 2 Conn. Rep. 196.
    2. That Pennoyer had not waived or relinquished his right to have his debt satisfied out of the property. In the first place, this was a conventional lien, in contradistinction from a legal one; and the former is not lost, as the latter generally is, by parting with possession of the property. Secondly if Pennoyer’s lien be considered as a legal one, it was not lost, by the service of a void attachment, as it was a parting with the possession by mistake. Thirdly, if the attachment was not void, still as the property was not given up to another claimant, but was merely delivered into the custody of the law, for Pennoyer’s benefit, there was not such a parting with possession as will defeat even a legal lien, Montague on Liens, passim.
    
    Hawley, contra,
    contended, 1. That the bill of sale from Harrington to the plaintiffs, made them the general owners of the property; and their title, as general owners, does not depend upon paying Pennoyer his demand. They took, by the assignment, precisely Harrington’s interest. Nor could their delay to tender, even while Pennoyer’s lien continued, defeat their title. They did not, by that delay, cease to be general owners. No third person has been deceived by the delay, nor misled by it into the acquisition of a title at war with that of the plaintiffs.
    2. That the defendant had no right to hold the property against the plaintiffs. In the first place, he could not hold by virtue of Pennoyer’s lien; for that was lost by the attachment. Pennoyer voluntarily parted with the possession, not to the defendant as his agent, to preserve the lien, and subject to his order, but for the acquisition of a new security, inconsistent with the lien. The property was put beyond Pennoyer’s controul, and was held in custody of the law, to await judgment, and then to be sold at the post, unincumbered. Bill thirdly, if the lien still subsisted, it furnishes the defendant no defence. Pennoyer’s lien was not transferred to the defendant. He could hold only by virtue of the attachment. A lien is a personal privilege; and none but the person having it, can set it up as a defence. Holly v. Huggerford, 8 Pick. 73.
   Daggett, J.

There appeal's to have been much discussion, at the circuit, of points and principles, which, in the light in which I view the case, are not important to a right decision of it. It was there decided, that the defendant had lost his lien in this property, by his attempted attachment of it, thereby voluntarily resorting to a new remedy. Be that point as it may, the plaintiffs are bound, by the clear principles of law, to prove property in themselves, or they cannot recover. This, in my opinion, they have not done.

The proof consists entirely of a bill of sale or assignment of it, dated the 3rd of April, 1828; there never having been any actual possession of it in the plaintiffs. This bill of sale is very short, and not of doubtful import. It declares, that William Harrington, who then was agreed to be the general owner, did sell to the plaintiffs the hat bodies in question, then in the possession of Alfred Pennoyer and others, with authority to receive the same, “ they paying to said Pennoyer whatever balance is justly due to him from William Harrington for his labour expended upon said bodies, so far as he has a lien on said bodies, or a part thereof, for said labour.” Of this assignment the plaintiffs gave notice to Pennoyer, on the 8th of the same April; and on the 11th of October thereafter, the property being then in the possession of Pennoyer, the plaintiffs tendered to him ninety-five dollars in satisfaction of his lien, and demanded the property, which he refused to deliver. It was not pretended, that this sum was equal to the lien, which Pennoyer had on the property, on the 3rd of April, the date of the assignment or bill of sale.

On the 8th of April, and after the plaintiffs gave notice to Pennoyer of the assignment, the property was attached, by the defendant, as an indifferent person, to whom the writ was specially directed, and taken into his possession, upon a process against Harrington, the vendor, in favour of Pennoyer. Judgment was recovered against Harrington, on that process; and the property was taken, by an execution, which issued on that judgment, and sold at the post. While the defendant was thus in possession of the property, this suit is instituted. It is now said, that this attachment, by which the property was taken, was void. Be it so; still the question recurs, have the plaintiffs shewn any right to it by virtue of the assignment? They insist, that their right became absolute,upon the execution of the instrument; that the word sell imports an unconditional transfer of the property; and that draws after it a constructive possession. I think otherwise. “They paying to Pennoyer his balance,” if not a condition precedent, certainly imports a concurrent act to be done by the plaintiffs, or, at least, an attempt to pay that balance, before any right could vest in them. The word paying, according to the late Chief Justice Swift, in the case of Wheeler v. Walker, 2 Conn. Rep. 196. 199. clearly imports a condition. In the same case, says the present Chief Justice: “The words which constitute a condition, may be various. In particular words there is no magic: their operation depends on the sense they carry.” The same doctrine is recognized in the case of Judd & al. v. Bushnell & al. 7 Conn. Rep. 205.

The parties to this contract might have agreed, that the property should be transferred immediately, and the vendor might have accepted the promise of the plaintiffs to pay the debt due to Pennoyer; but the contract made was different; and the court, in view of it, can only say, that here could be no transfer without payment or tender of the balance due to Pennoyer; and that, in the absence of all proof of such payment or tender, no title has been acquired by the plaintiffs.

Therefore, let there be a new trial.

Williams and Bissell, Js. were of the same opinion.

Hosmer, Ch, J. dissented.

Peters, J. was absent.

New trial to be granted.  