The opinion of the Court was by
Whitman C. J.Exceptions are taken to the Judge’s, instructions to the jury, in general terms, without pointing out any part in particular, which is deemed erroneous. This mode of taking exceptions may be very convenient, so far as the counsel are concerned, as it leaves them to find out, at their leisure, in what particular, if any, the instructions are erroneous. To the Court, nevertheless, it may be somewhat inconvenient, as it will not be apprised of any casual mistake or omission, into which it may, in the hurry of a trial, have been momentarily led, in season to correct or supply it. It may be doubtful whether the Court should in such case consider a party aggrieved, so as to be entitled to have exceptions so taken allowed. At common law it would be necessary that the particular ground of exception should be designated, and in season to put the Court upon consideration of the supposed error, so that it might be corrected in time to prevent an improper effect from it. Possibly the statute, providing for the *219taking of summary exceptions, may admit of the mode adopted in this case; and we proceed to the consideration of the Judge’s instructions as reported. In doing this we do not propose to notice minutely the particular grounds of exception upon which the counsel, in their arguments, have insisted. It will suffice that we take a general view of the case, such as shall substantially amount to a reply to the questions raised.
The plaintiff claims to have had, what he terms, a lien upon the logs, to recover the value of which, this action was instituted. The word lien, in common parlance, is somewhat indiscriminately used, as if it embraced every species of special property, which one may have in goods, the general ownership of which is in another. It originally, and more appropriately, was used to signify the right of detention, which artizans and others, who had bestowed labor upon an article, or done some act in reference to it, had, in some instances, of a right of detention thereof till reimbursed for their expenditures and labor bestowed thereon. Such may be termed a lien at common law. The lien, if it may be termed such, upon which the plaintiff must rely, is not one of this description. In cutting and removing timber from the land of another, at an agreed price, and for the purpose of being sawed into boards, no lien, without a special contract therefor, can be acquired. In the cases of liens of the above description, as at common law, in order to the continuance of the lien, it was and is indispensable, that it should be accompanied by possession. The moment that possession was voluntarily surrendered, the lien was gone. And the authorities cited by the counsel for the defendant are conclusive upon this point; but may be wide of touching the case at bar.
It seems to be admitted, in the arguments of the counsel, that the plaintiff had a lien. If he had, it is important to see how it arose, and, what the particular nature of it may have been. We have seen that it could not have been a lien at common law; and neither party contends that it was. If it existed, then it arose upon a special contract; a contract, which was entered into by the plaintiff with one Jefferds, act*220ing as agent for the proprietors of the land, from which the timber in question was taken, and therein we find a stipulation to such an effect was contained. Although Jefferds now says, that he was not authorized to pledge the timber as security for the pay-for cutting and removing it, the evidence does not show that the owners ever gave the plaintiff any seasonable notice of their dissatisfaction with this particular stipulation in the contract; nor did they in their instructions to Moore, in April, 1836, notice any such objection. They may, therefore, well be considered as hav-ing ratified it. This stipulation will be found • to have created, what may be more properly termed, a mortgage, than a mere lien; for it is manifest, that actual possession by the plaintiff was not to be continued; and that the logs were intended to go into the possession of the general owner, subject to the right of the plaintiff to resume it in case of non-payment for his labor, &c. as had been agreed upon. The stipulation for a term of credit therefor, is clearly indicative of such an understanding between the parties; and it might be inferred from the well known character of such transactions. The term of credit was given for some purpose ; and may well be believed to have been given to enable the general owner to avail himself of funds to meet his liabilities from the sale, or other disposition, of the timber.
The plaintiff, then, having parted with his possession of the logs, after having performed his contract in reference to them, might or might not resume it upon the expiration of the terms of credit. If he saw that the owners were conducting in a manner affording a reasonable prospect of his availing himself of payment, as soon as his necessities would require it, he might suffer them to continue their possession. In this case, it would seem, that he witnessed the negotiation between their agent and Paine, and saw that it was an arrangement professedly made, with a view to enable them to make payments to him; and doubtless expected to realize therefrom the whole amount due him. He accordingly seems to have waited till the termination of that contract, and, not finding his expectations realized, demanded and sought to regain possession of *221the logs. We do not see but he might well do so. He had not, in express terms, relinquished his right to the timber as secured by his contract; and if he looked on, and saw the owners making arrangements to dispose of it, it cannot be doubted, but that it was with an expectation raised by them, that he should have the avails of it to the extent of his claim. They, having disappointed him in this expectation, should not be permitted now to say, that he has relinquished his right to regain possession; nor to withhold from him the value of the timber to the extent of his first demand. No demand, as evidence of a conversion, would seem to have been necessary; for an actual conversion seems to have been abundantly proved. The defendant, Moore; has undertaken, in his contract with Paine, to deal with the limber as being the property absolutely either of himself, or of Wilcox and others ; and, moreover, the defendants now dispute the right of the plaintiff" to any claim upon it. Whether a demand of the timber, therefore, was made upon the agent, or upon the principals, it does not seem important to inquire.
The instructions, in reference to the survey of the timber by Pond, were not erroneous. He bad been mutually agreed upon by the parties to perform that service. They should, therefore, be concluded by what he did, as it did not appear that he acted corruptly, or made any gross mistake.
The supposed mistake, noticed by one of the counsel for the defendants, in ascertaining the amount due to the plaintiff, does not come before us upon this bill of exceptions, and cannot therefore be noticed.
Exceptions overruled.