of damages by the plaintiff against the defendant, in an action for a libel published in another number of the same paper, and containing the same libelous charges. Tillotson v. Cheetham, 3 Johns. 56.

Evidence of the plaintiff's general bad character in respect to the subject-matter of the charge is admissible in mitigation of damages. Melton v. State, 3 Humph. (Tenn.) 389; Sayre v. Sayre, 1 Dutcher (N. J.), 235; Smith v. Smith, 8 Ired. (N. C.) 29; Wright v. Schroeder, 2 Curtis, 548; Buford v. McLuny, 1 Nott & McCord (S. C.), 268; Adams v. Smith, 58 Ill. 417. And see Kimball v. Fernandez, 41 Wis. 329. This may be shown, under the general issue, notwithstanding that there is also a plea in justification. Young v. Bennett, 4 Scam. (Ill.) 43. And such testimony may be presented, after the plaintiff has introduced evidence to rebut that given by the defendant, in support of his justification. Stone v. Varney, 7 Metc. 86. But in the absence of a plea of justification, or other plea assailing the character of the plaintiff, or putting it in issue, evidence reflecting thereon should be excluded. Howe Machine Co. v. Souder, 58 Ga. 64.

Where, in libel, the defendant charges that the plaintiff falsely accused him of crime, and the falsehood of the plaintiff's accusation is shown by the defendant in mitigation of damages, the plaintiff may introduce evidence in rebuttal, to show its truth. Woodburn v. Miller, Cheves (S. C.), 194.

CHAPTER XC.

LIEN.

TITLE I

OF LIENS IN GENERAL.

ARTICLE I.

OF LIENS AND THEIR NATURE.

Section 1. Definition and nature. A lien is a right to hold. Wilson v. Balfour, 2 Camp. 579. It is neither a jus ad rem, nor a jus in re, but a simple right of retainer. Meany v. Head, 1 Mas. (C. C.) 319. In common parlance the word lien is somewhat indefinitely used, as including every species of special property which one may have in goods, the general ownership of which is in another. But it was originally and more appropriately used to signify the right of detention, which artisans and others who had bestowed labor upon an article, or done some act in reference to it, had, in some instances, till reimbursed for their expenditures and labor bestowed thereon. And such may be termed a lien at common law. Oakes v. Moore, 24 Me. 214. Or, as more comprehensively defined, a lien at common law is the right which one person possesses, in certain cases, of detaining property placed in his possession belonging to another, until some demand which the former has be satisfied. Hammonds v. Barclay, 2 East, 227; Bean v. Bolton, 3 Phila. (Penn.) 87. The essence of the right is possession. Hamlett v. Tallman, 30 Ark. 505.

By the common law, liens exist only in cases where the party entitled thereto has either actual or constructive possession of the property. Jordan v. James, 5 Ohio, 88; Shaw v. Neale, 4 Jur. (N. S.) 695. But in the maritime law, and in equity, liens exist independently of possession. Ex parte Foster, 2 Story (C. C.), 131. Sec, also, Donald v. Hewitt, 33 Ala. 534, 547.

As between debtor and creditor, the doctrine of lien is said to be so equitable that it cannot be favored too much; but as between one class

of creditors and another, there is not the same reason for favor. Jacobs v. Latour, 5 Bing. 130; 2 Moore & P. 201.

§ 2. How acquired or created. Liens exist by common law, or are created by usage, by statute, or by express agreement. Green v. Farmer, 4 Burr. 2214; S. C., 1 W. Bl. 651; Allen v. Ogden, 1 Wash. (C. C.) 174; Frost v. Ilsley, 54 Me. 345; Jarvis v. Rogers, 15 Mass. 389; Chambers v. Davidson, L. R., 1 P. C. 296; S. C., 4 Moore's P. C. C. (N. S.) 158; Driver v. Jenkins, 30 Ark. 120.

Liens which exist by the common law most frequently arise in cases of bailment. The general principle is, that where the law compels a person, such as an innkeeper, or common carrier, to take the care and custody of goods, he shall have a lien on the property for his reasonable and just charges therefor; and the same rule applies to a person who, by his labor and skill, has imparted an additional value to the goods. Grinnell v. Cook, 3 Hill, 491; Townsend v. Newell, 14 Pick. 332. But one who merely provides food and takes the care of an animal, as an agistor or a livery-stable keeper, has no lien on the property, unless there be a special agreement to that effect. Jackson v. Cummins, 5 M. & W. 342; Lewis v. Tyler, 23 Cal. 364; Willis v. Barrister, 36 Vt. 220; Goodrich v. Willard, 7 Gray, 183; Millikin v. Jones, 77 Ill. 372. Sometimes a lien arises where there is strictly no bailment. Thus, when goods carried at sea are in imminent danger of being lost, it is frequently at the hazard of the lives of those who save them, that they are saved. Therefore, from considerations of public policy and commercial necessity, the law supports a lien in the case of salvage. Nicholson v. Chapman, 2 H. Bl. 254. But the finder of a thing which is lost on land, unlike the salvor of property at sea, has no lien upon it for the recompense which he may reasonably deserve for the trouble and expense incurred in its preservation. Baker v. Hoag, 7 N. Y. (3 Seld.) 555; Forster v. Juniata Bridge Co., 16 Penn. St. 393. Still, if the owner of property lost has offered to any person who should find and restore it, a reasonable compensation for his trouble and expense, and a person, relying upon such promise, undertakes to secure the property, and does in fact rescue it, and is ready to deliver it to the owner upon being paid for his labor and expenses, he is entitled to receive his compensation before he parts with the possession of the property. Wentworth v. Day, 3 Metc. 352; Wilson v. Guyton, 8 Gil. (Md.) 213; Cummings v. Gann, 52 Penn. St. 484. Ante, Vol. 1, 100, 101; Vol. 3, 611, 612.

Liens frequently arise from the usages of trade, or the manner of dealing between the parties. Jarvis v. Rogers, 15 Mass. 389, 394. But it is held that the usage must be so general that the party deliver

ing the goods may be presumed to have known it, and to have made the right of lien a part of the contract. Oppenheim v. Russell, 3 Bos. & P. 42, 50; see Leuckhart v. Cooper, 3 Bing. N. C. 99. And it seems that much stronger proof of general usage is required in those occupations in which there is no choice to accept or reject the employment, as in the occupation of an innkeeper or common carrier. Rushforth v. Hadfield, 6 East, 519; 7 id. 224; Kirkman v. Shawcross, 6 Term R. 14. But where a custom has been frequently proved and allowed to exist in any particular trade, the court will not permit it to be disregarded. Naylor v. Mangles, 1 Esp. 109; Spears v. Hartly, 3 id. 81; 3 Pars. on Cont. 240. Liens which arise by usage are commonly general liens. Id.; see post, 319, § 3.

Liens created by statute are usually based upon justice and public convenience and are designed to meet those cases where the possession is not with the consent of the owner of the property, or where exclusive possession is impossible. And the same virtue exists in a statute lien, in which possession does not pass, as exists in common law liens, accompanied by possession. Grant v. Whitwell, 9 Iowa, 152; Beall v. White, 94 U. S. (4 Otto) 382. But a lien created by a mere act of legislation has none of the elements or properties of a contract, and may, therefore, be destroyed by an act of legislation. Martin v. Hewitt, 44 Ala. 418; Frost v. Ilsley, 54 Me. 345.

That the legislature has the power to authorize hogs and cattle taken damage feasant, to be impounded by the owner of the premises and detained until the damages and costs are paid, and to give such owner a lien on the animals to secure such damages and costs, see Cook v. Gregg, 46 N. Y. (1 Sick.) 441; Rood v. McCargar, 49 Cal. 117. A national bank has the power to make a by-law creating a lien on the stock of every stockholder for his liabilities to the bank. Re Dunkerson, 4 Biss. 227.

Where a statute provided that any person to whom cattle were intrusted to be pastured should have a lien thereon for their keeping, it was held that an agistor, to whom cattle had been intrusted by the mortgagor of them, without the knowledge or consent of the mortgagee, had no lien on them as against the latter. Sargent v. Usher, 55 N. H. 287; S. C., 20 Am. Rep. 208.

A lien may be acquired by the express agreement of the parties (Chapman v. Allen, Cro. Car. 271; Richards v. Symons, 8 Q. B. 90); as where goods are placed in the hands of a person for the execution of some particular purpose upon them, with an express contract that they shall be considered as a pledge for the labor or expense which the execution of that purpose may occasion. Or it exists where prop

erty is merely pawned or delivered for bare custody to another, for the sole purpose of being a security for a loan made to the owner on the credit of it. Whitaker on Liens, 27. See post, tit. Pledge. And where a number of tradesmen enter into an agreement not to receive goods of any one, for the purposes of their trade, unless such goods may be held subject to a general lien for the balance due them, and a bailor with notice of this agreement leaves his goods, the lien attaches. Kirkman v. Shawcross, 6 Term R. 14. But it is otherwise where the tradesman is obliged by law to receive the goods of any one who offers; in such case, express assent of the bailor must be shown, in order to give the lien. Mere notice is insufficient. Id. And see Oppenheim v. Russell, 3 Bos. & P. 42.

When a party has a lien on goods or chattels, created by a valid verbal agreement with the owner, and the goods have been delivered to him pursuant to the terms of the contract, his right to retain them until his lien is satisfied is not affected by any subsequent mortgage, or other incumbrance, executed or created by the owner; and he may maintain detinue against any one who disturbs his possession. Gafford v. Stearns, 51 Ala. 434. Ante, Vol. 2, 535.

Personal, and even transitory and fluctuating property, may be the subject of a lien, at the pleasure of the contracting parties; but generally, explicit words are necessary to effect a lien, where it is not raised by operation of law or equity. Williams v. Price, 5 Munf. (Va.) 507. Under a written contract to keep sheep for a certain period, and to wash, shear, and do up their wool, for a certain sum, the keeper has no lien on the sheep for his pay. Cummings v. Harris, 3 Vt. 245. A contract for a lien on an unplanted crop is void at law. Hamlett v. Tallman, 30 Ark. 505. But see ante, Vol. 2, 171, and post, 325.

It is a well-settled doctrine of the common law that, in order to create a lien on a chattel, the party claiming it must show the just possession of the thing claimed; and no lien exists where the party claiming it acquires possession by wrong, or by misrepresentation. Madden v. Kempster, 1 Camp. 12; Lempriere v. Pasley, 2 Term R. 485. Thus, one who, in order to obtain the wrongful possession of property, pays the claim of a person having a lien upon it, acquires thereby no lien to the property for the sum so paid, as against the rightful owner. Guilford v. Smith, 30 Vt. 49. Nor can a lien arise, where, from the nature of the contract between the parties, it would be inconsistent with the express terms, or the clear intent of the contract. For example, if the goods were deposited in the possession of the party for a particular purpose, inconsistent with the notion of a lien, as to hold them or the proceeds for the owner, or a third person.