the lien. Lewis v. Starke, 18 Miss. 120. See, also, Clark v. Draper, 19 N. H. 419; Muir v. Cros8, 10 B. Monr. (Ky.) 277; Succession Kercheval, 14 La. Ann. 457; Thorpe Brothers v. Durbon, 45 Iowa,

192.

If a party having a lien on goods causes them to be taken in execution at his own suit, he thereby destroys his right of lien, although the goods were never removed from his premises. Jacobs v. Latour, 5 Bing. 130; S. C., 2 M. & P. 201. See Outcalt v. Durling, 25 N. J. Law, 443; Evans v. Warren, 122 Mass. 303. And a lien will be destroyed not only by parting with possession, but by attempting to retain it otherwise than as security. Bean v. Bolton, 3 Phil. (Penn.) 87. Thus, if a person has a lien on goods for the price of carriage to a place of deposit, his subsequently claiming them as his own, and refusing, on that ground, to deliver them to the owner, is a waiver of the lien. Picquet v. M'Kay, 2 Blackf. (Ind.) 465. So, if a party has a specific lien on the goods of another, and, when required to deliver them up, claims a lien upon them for a sum either greater than or different from that for which he is entitled to hold them, his lien is gone (Scarfe v. Morgan, 4 Mees. & W. 270; S. C., 1 H. & H. 292), but if he claims to hold them both for the sum to which he is entitled, and also for a further sum to which he is not entitled, his lien in respect of the former remains, and the owner ought, on such refusal, to tender that sum. Id. Where a party claims to detain goods upon two causes of lien, in such a way as to dispense with tender of either, he is guilty of a conversion, unless he can sustain both. Kerford v. Mondel, 28 L. J. Exch. 303. And where a party who has a specific lien on goods refuses to deliver them up, unless the amount of a general balance is paid, it is unnecessary for the owner to tender the sum due in respect of those goods, in order to support trover. Jones v. Tarleton, 9 Mees. & W. 675.

So, if A delivers a chattel to B, under a contract by the latter to perform certain work thereon at a fixed price, and, before such work is completed, A countermands the order and demands the chattel from B, at the same time tendering a sum sufficient to pay for the work actually done, he will be entitled to maintain trover therefor without tendering the contract price. Lilley v. Barnsley, 1 Car. & K. 344.

If A, having repaired a carriage for B, allows him to take it away from time to time, he cannot afterward detain it for the amount of the repairs. Hartley v. Hitchcock, 1 Stark. 408. So, a lien for the keeping of a horse, created by agreement, will not hold against a mortgage subsequently executed and recorded, if the owner is afterward permitted to use the horse at his pleasure. Perkins v. Boardman, 14

Gray, 481. But under a statute of Pennsylvania, giving a lien to livery-stable keepers, it is held that where it is a part of the ordinary course of business to deliver the horses to the driver as often as they are needed, the loss of custody does not defeat the stable keeper's lien. Young v. Kimball, 23 Penn. St. 193.

If, on a sale of property subject to a lien, the holder of the lien agrees to pay for the property a sum additional to the amount of such lien, the sale is an extinguishment of the lien. Foltz v. Peters, 16 Ind. 244. And where a note is given for a debt, a part of which is secured by a lien, and a part not so secured, and the note is prosecuted to judgment, the lien is lost. Coburn v. Kerswell, 35 Me. 126.

A sale made to enforce a statutory lien divests the property sold of that lien. Schmidt v. Gatewood, 2 Rich. (S. C.) Eq. 162.

But a specific lien, once obtained by levy or otherwise, cannot be divested by subsequent legislation. McKeithan v. Terry, 64 N. C. 25; Sluder v. Rogers, id. 289. And it is held that the mere manual delivery of an article by a carrier to the consignee does not, of itself, operate necessarily to discharge the lien of the carrier for freight; but the delivery must be made with the intent of parting with the lien. One hundred and fifty-one Tons of Coal, 4 Blatchf. (C. C.) 368.

A lien on property is not removed by the bankruptcy of the party. Roach v. Bennett, 24 Miss. 98.

A client cannot compromise a case out of court, so as to deprive his attorney of his lien for his fee without his consent. Pleasants v. Kortrecht, 5 Heisk. (Tenn.) 694. See, also, Hunt v. McClanahan, 1 id. 503.

§ 14. Who may sue for injury to. While property remains in the possession of the bailee, who is entitled to, and still maintains his lien thereon, he alone can maintain an action of trespass for a forcible injury to the property. Wilson v. Martin, 40 N. H. 88. And when a party holds a lien on property which he claims is wrongfully in the possession of a third party, he is entitled to an action for the recovery of its possession, or for a wrongful conversion. Wingard v. Banning, 39 Cal. 543; Gafford v. Stearns, 51 Ala. 434. And the general owner may maintain an action of trover for the conversion of the property (Nash v. Mosher, 19 Wend 431); and a wrong-doer cannot set up the lien which a bailee has for the price of labor done on the goods of another, to defeat the action of the owner. Bradley v. Spofford, 23 N. H. 444.

§ 15. Who may be sued for injury to. holding the lien, for a forcible injury to the

Trespass by the party property, has been sus

tained even against the general owner. Cowing v. Snow, 11 Mass.

415.

§ 16. Damages recoverable. In an action by the lien-holder, to recover the possession or for a wrongful conversion of the property to which the lien attaches, the measure of damages is stated to be the amount of the lien, not exceeding the value of the property. Wingard v. Banning, 39 Cal. 543.

A tender of the charges must be made before suit by the owner, where a lien exists, unless the goods have been parted with, in which latter case all that can be claimed by the defendant is a mitigation of damages by way of recoupment. Saltus v. Everett, 20 Wend. 267. See ante, Vol. 2, 431.

CHAPTER XCI.

MALICIOUS PROSECUTION.

ARTICLE I.

OF THE ACTION IN GENERAL.

Section 1. Nature of the action and where it lies. The action for malicious prosecution belongs, as its name indicates, to a class of actions in which malice is the principal element, and it lies to recover the damages sustained by the plaintiff by reason of a prior action having been brought against him by the defendant, from malicious motives and without probable cause.

An action brought in the name of another person, without his authority, is a groundless and unlawful suit, and for the damage done to the defendant in such a suit, he may recover against the person by whom it was brought. Foster v. Dow, 29 Me. 442. Ante, Vol. 1, 37, 143. The criminal law was not designed to assist in the collection of debts, and he who attempts to so use it must expect to smart for it. Kelley v. Sage, 12 Kans. 109, 112. Post, 346, 347.

The original action or prosecution may have been either civil or criminal, but in either case, in order to sustain an action to recover the damages resulting from such action or prosecution, it must affirmatively appear that it was prosecuted through malicious motives, and without probable cause. Cook v. Walker, 30 Ga. 519; Dickinson v. Maynard, 20 La. Ann. 66; Heyne v. Blair, 62 N. Y. (17 Sick.) 19; Medcalfe v. Brooklyn Life Ins. Co., 45 Md. 198; Burris v. North, 64 Mo. 426; Scott v. Shelor, 28 Gratt. 891; Glaze v. Whitley, 5 Oregon, 164; Willis v. Knox, 5 S. C. 474; Harkrader v. Moore, 44 Cal. 14; Dietz v. Langfitt, 63 Penn. St. 234; Burnap v. Albert, Taney, 244.

It must also appear that such original action or prosecution had been terminated by a judgment or adjudication in the plaintiff's favor, or had been abandoned before the commencement of the action to recover the damages resulting from the prosecution. O'Brien v. Barry, 106 Mass. 300; S. C., 8 Am. Rep. 329; Brown v. Randall, 36 Conn. 56; VOL. IV.-43

S. C., 4 Am. Rep. 35; Cardival v. Smith, 109 Mass. 158; S. C., 12 Am. Rep. 682; Hall v. Fisher, 20 Barb. 441; Hamilburgh v. Shepard, 119 Mass. 30; Gillespie v. Hudson, 11 Kans. 163; Feltt v. Davis, 49 Vt. 151; Batchelder v. Frank, 49 id. 90; Hibbing v. Hyde, 50 Cal. 206; Moulton v. Beecher, 1 Abb. N. C. 192; 52 How. 182. Post, 347, § 6.

Wherever these three essentials concur, and a malicious and unfounded prosecution has been commenced and terminated, an action to recover the damages resulting therefrom is maintainable. As to this, there is no conflict of authorities. It remains, then, to be considered what character and extent of legal interference with the rights of another will support the action; what is deemed want of probable cause, and how that want is evidenced; what degree of malice must underlie the original prosecution; what is a sufficient determination of such prosecution to give the right of action; who must be made plaintiff or defendant in the action to recover the damages sustained; and, finally, what damages are recoverable.

If a person

§ 2. Wrongfully prosecuting a criminal action. maliciously and without any reasonable or probable cause puts the criminal law in force, and thereby another person is prejudiced or injured in property or person, there is such a conjunction of injury and loss as to lay the foundation for an action to recover the damages arising from the wrongful act. Churchill v. Siggers, 3 El. & Bl. 937.

An action for malicious prosecution lies, when a person, knowing that a certain act does not constitute a crime, procures the indictment of another for such act as a crime. Dennis v. Ryan, 5 Lans. (N. Y.) 350; S. C., 65 N. Y. (20 Sick.) 385; 63 Barb. 145.

So, the action lies when a person, believing that an act would constitute a crime, falsely and maliciously accuses the other of such act and procures his indictment or arrest. Dennis v. Ryan, 5 Lans. (N. Y.) 350; S. C., 63 Barb. 145; 65 N. Y. (20 Sick.) 385; Shaul v. Brown, 28 Iowa, 37; S. C., 4 Am. Rep. 151; 1 Am. Lead. Cas. 281; ; Anderson v. Buchanan, Wright (Ohio), 725; Farlie v. Danks, 20 Eng. Law & Eq. 115; Streight v. Bell, 37 Ind. 550; Collins v. Love, 7 Blackf. 416; Barton v. Kavanaugh, 12 La. Ann. 332:

So where a person falsely and maliciously prosecutes another for a crime before a court having no jurisdiction of the offense, an action for malicious prosecution will lie. Morris v. Scott, 21 Wend. 281; Sweet v. Negus, 30 Mich. 406; Stone v. Stevens, 12 Conn. 219; Hays v. Younglove, 7 B. Monr. 545. But contra, see Painter v. Ives, 4 Nebr. 122; Bodwell v. Osgood, 3 Pick. 379, 383; Turpin v. Remy, 3 Blackf.

210.