Agister's lien. The general property in the horses, carrying with it the right of possession, was in the defendant by virtue of the mortgages, subject of course to the right of redemption in Robinson — Leach v. Kimball,34 N.H. 568, Brackett v. Bullard, 12 Met. 308, 4 Kent's Com. 138, and Bank v. Jones, 4 N.Y. 497; and it is clear that, so far as regards any supposed power of the mortgagor to defeat this right of possession, and, in effect, abrogate this right of property by subjecting it to a lien, he stands in no different position from that of a bailee. The only question in the case, then, appears to be, whether the statute giving a lien for the agisting of cattle, c., is capable of such a construction as will permit any one having in his possession the animals of another to subject them to a lien for their keeping as against the owner, without his knowledge, acquiescence, or consent, express or implied. And I am of opinion that it is not.
The act provides that "Any person, to whom any horses, cattle, sheep, or other domestic animals shall be entrusted to be pastured or boarded, shall have a lien thereon for all proper charges due for such pasturing or board, until the same shall be paid or tendered." Gen. Stats., ch 125, sec. 2.
Now, if the whole construction of this act be made to turn on the word "entrusted," it undeniably follows that it make no difference how the person entrusting animals to be boarded or pastured came by them, nor what his right to them is. A thief, a bailee, and an absolute owner are in this respect all put on the same footing. A sale of stolen goods by the thief passes no title against the owner, and the same is in general true with respect to a sale by a bailee, unless he has been so clothed with the indicia of title by the owner, or held out as authorized to sell in such way that the loss ought by reason of his own acts to fall upon the owner rather than on an innocent purchaser. The maxim, Nemo plus juris in alium transferre potest quam ipse habet, is one of very general application, and the rule in this country, to which of course there are exceptions, is, that the title of the true owner cannot be lost without his own free act and consent. 2 Kent's Com. 324; Kingsbury v. Smith, 13 N.H. 109; Hyde v. Noble,13 N.H. 494; Farley v. Lincoln, 51 N.H. 580; — and see quite a forcible *Page 290 discussion of the whole subject by Senator VERPLANCK, in Saltus v. Everett, 20 Wend. 267.
The idea that a lien may be created by a contract of the possessor of animals for their keeping, the owner being in no way privy to such contract, when no rights whatever, as against the owner, could be conferred or created by a contract of sale, seems anomalous, to say the least. Such a thing would, as it seems to me, be a violation of the fundamental rights of property guaranteed by the constitution; and if the legislature had undertaken by this act to create a lien, to arise on such a state of facts, I think it would be the duty of the court, as more than intimated by FOSTER, J., in Jacobs v. Knapp, 50 N.H. 82, to hold the act, so far, unconstitutional and void.
But I do not think any such intention is to be found in the statute. In giving this specific lien I think the legislature used the word in its legal and generally accepted sense, and that implies same privity between the owner, or person having the right of disposing of the goods, and him in whose favor the lien is claimed; and that by "entrusted" is meant entrusted by the owner or other person having authority to pledge the animals for such a purpose, — that is, to suspend the owner's right or possession until the charges are paid.
Cases where it has been held that a common carrier, who innocently receives goods from a wrong-doer, without the consent of the owner, express or implied, has no lien upon them for their carriage as against such owner, seem to cover the whole ground and more. 2 Redf. Railw. 171; Robinson v. Baker, 5 Cush. 137; Stevens v. B. W. Railroad, 8 Gray 262. The recent English case of Threfall v. Boswick, Law Rep., 7 Q. B. 711,* has reference to an inn-keeper's lien, and, in my judgment, is not applicable to the case before us here.
The whole reasoning of FOSTER, J., in the carefully-considered opinion of the court delivered by him in Jacobs v. Knapp, is against the position of this plaintiff; and that case must, as it seems to me, be regarded as quite a direct authority upon the question raised in the present.
Upon these views it is obvious that the plaintiff is not entitled to recover, upon the facts stated in the case; and the ruling and charge of the court, under which his right to recover was made to depend upon whether or not the horses were entrusted to him to be boarded, without reference either to the defendant's right and interest in them as mortgagee, or the nature and extent of Robinson's right and title, cannot be sustained.
* S.C. Law Rep. 10, Q. B. 210, published since this decision was announced.