
    Charles Enoch and another, Plaintiffs and Respondents, v. William C. Wehrkamp, Defendant and Appellant.
    1. An agent to receive consignments of goods for his principal and sell them, and who is indebted to his principal for moneys received on sales of goods sold, has no lien upon goods subsequently consigned for expenses paid on account thereof, unless such expenses exceed the amount of such indebtedness.
    2. The lien of an agent and factor on the goods of his principal for specific expenses, does not exist, when the general balance of account is against him.
    (Before Bosworth, Hoffman, and Pierrepont, J. J.)
    Heard, June 11th;
    decided, July 3d, 1858.
    This is an appeal by the defendant, from a judgment in favor of the plaintiffs entered on a verdict against the defendant, at a trial before Mr. Justice Slosson and a jury, on the 18th of May, 1858.
    This action, is Replevin for fourteen cases of sample fancy goods. The plaintiffs are commission merchants in Paris, and made an agreement with the defendant and one Young, who had formed a copartnership under the firm of Wehrkamp & Young, in Hew York, by which the latter were to act as their agents in Hew York, to receive orders for goods, make sales, &c. The goods in question were consigned by the plaintiffs to Wehrkamp & Young, under this agreement, and afterwards at Wehrkamp’s solicitation, the agency was transferred to him solely. Afterwards, on the 6th of May, 1857, the plaintiffs revoked the agency, and demanded the goods.
    On the 1st of January, 1857, the plaintiffs rendered to Wehrkamp & Young their account current to that time, showing a balance due to the plaintiffs of fr. 7,437 95c., which Wehrkamp & Young duly admitted to be correct. This balance Wehrkamp duly assumed as his individual debt. The defendant as such agent had paid expenses on the goods in question amounting to $462.90, and on that account claimed a particular lien, and that the plaintiff was not entitled to the goods until that sum was repaid. The Court charged that if the balance of account was in favor of the plaintiffs, th¿j^ were'entitled to A ver diet for the goods. To this the defendant excepted. The plaintiffs had a verdict and from the judgment entered thereon the defendant appealed.
    
      C. Bainbridge Smith, for the defendant, appellant.
    I. The defendant, as agent of the plaintiffs, having paid the sum of $462.90 upon the goods in question for duties alone, besides insurance and other charges and expenses thereon, had a particular lien upon them for those advances. (Story on Agency, §§ 354, 375; 2 Kent’s Com., 640, 5 ed.; Chitty on Contracts, 481, note; 3 Chitty Com. Law, 541; Schmidt v. Blood, 9 Wend. R., 268; Bradford v. Kimberly, 3 J. C. R., 431; id., 1 Am. L. C., p. 723; Holbrook v. Wight, 24 Wend. R., 169 ; Knapp v. Alvord, 10 Paige R., 205; Brooks v. Bryce, 21 Wend., 14.)
    1. There are two kinds of lien,, namely, particular and general. (Id.)
    2. A particular lien is a right to retain the property of another on account of labor employed or money expended on that same property. A general lien is a right to retain the property of another on account of a general balance due from1 the owner. (Id.; Whitaker on Liens, p. 7; 2 Kent’s Com., 5 ed-., 640.)
    II. The action at bar being one of tort, the question whether the plaintiffs could set off their alleged general account or indebtedness against the defendant’s particular lien, could neither be pleaded nor litigated therein.
    1. The right of setting off one account against the other did not exist at common law, and is derived from the statute, and admissible only in actions ex contractu. (2 R. S., 354, § 18, sub. 1; Barb. Law of Set-Off, 105; Chitty on Contracts, 730; Bouv. Law Dic., Tit. Set-Off.)
    2. It was clearly an error on the part of the Court in allowing the plaintiffs to set off their general indebtedness against the defendant, if any existed, in extinguishment of his particular lien on the goods in question; for a set-off cannot be pleaded in actions ex delicto, such as tort, trespass, detinue, case or replevin. (Id.; Laycock v. Tufnell, 2 Chit. R., 531; 18 E. C. L. R., 409; Buller’s N. P., 181; Montagu on Set-Off, 18; Osborn v. Etheridge, 13 Wend., 339; 3 Chitty’s Com. Law, 671.)
    
      III. The defendant having had a lien upon the goods, the plaintiffs were not entitled to them before that lien was satisfied. (Cross on Liens, 14, 46; 18 Law Lib., N. S., 29; Whitaker on Liens, 4, 6; Pennock v. Harrison, 3 M. & W., 532; Clarke v. Fell, 1 N. & M., 244.)
    1. The statutes of set-off do not apply to actions of tort. (Cases cited; Downer v. Eggleston, 15 Wend. R., 55, 56.)
    
      2. In. cases of lien, the whole property on which it exists, being considered as a pledge, may be detained until the lien is discharged. (Whitaker on Liens, pp. 4, 6.)
    3. The right of lien, and right of set-off may be co-existent, yet the latter cannot be pleaded in answer to the lien without a specific agreement between the parties to that effect. In such case, in order to extinguish the debt for which the lien arises, the set-off must be construed as a payment; but without such specific agreement, the party claiming the lien cannot be deprived of it, however much he may be indebted to the owner of the property in question. (Cross on Liens, p. -14; 18 Law Lib., N". S., p. 29.)
    4. There is no pretence that the plaintiffs overpaid, or offered to satisfy the defendant’s lien in any other manner than by setting off their pretended general indebtedness against -him.
    5. The defendant, when a demand of the goods was made of him, refused to deliver them up, but on what ground he placed his refusal, if any, does not appear. “ A party having a lien does not waive it by omitting to mention it when a demand is made.” (White v. Gainer, 2 Bing., 23; id., 9 E. C. L. R., 302; Owen v. Knight, 4 Bing., 54; id., 33 E. C. L. R., 279; Scarf v. Morgan, 4 M. & W., 273 ; Cross on Liens, 46; Everett v. Coffin, 6 Wend. R., 603,)
    
      Jer. Larocque, for the plaintiffs (respondents).
    I.' The charge was correct
    1. The factor who pays charges for his principal in the factor-age business, with money of his principal in -his hands, arising from the same factorage business, in judgment of law, pays them with the money of his principal.
    
      2. The balance of account arising from the factorage business is, in fact, the precise thing for which the factor has a lien.
    3. The question would be a different one if the-principal should seek to discharge the lien by a cross indebtedness not arising in the same business. (Smith’s Mercantile Law, 340; Law Lib. N. S., p. 202; 2 Kent’s Com., 640; Weldon v. Gould, 3 Esp. N. P., 268; Bryce v. Brooks, 26 Wend., 376; Cross on Lien, 260, 277; 18 Law Lib. N. S., 172, 182.)
    II. If the first point is well taken, the refusal to charge that the defendant was entitled to a verdict was of course correct.
   By the Court.

Pierrepont, J.

—It is admitted that the §462.90 was paid by the defendant? But it clearly appears from the evidence in the case, which was properly submitted to the jury, that the defendant paid these charges of $462.90, while debtor to the plaintiff, in a larger sum on general account. The defendant had no particular" or other lien upon the goods of the plaintiffs, on account of having paid the charges and duties upon them, he having, at the time, money of the plaintiffs in his hands to a larger amount. It makes no difference that the plaintiffs did not advance the money for this specific purpose. The defendant had the plaintiffs’ money, and, in presumption of law, he used it to pay these charges, and on no principle can he be said to have acquired a lien upon the goods in question which the plaintiff was bound to discharge before taking the property.

The case was properly submitted to the jury, and their verdict is clearly in accordance with the law and the evidence.

Judgment affirmed, with costs,  