If the goods replevied were taken from the possession of the defendant Lambert, and he had a lien upon them for money paid for customs duties, the action cannot be maintained, unless this lien was discharged or waived before the action was brought. The neglect to pay the amount of the duties, or to make a tender of the amount, is not excused because it would be useless in the sense that, if such a payment or tender had been made, the defendants would still have refused to surrender the goods. A tender of the amount cannot be said to be useless, although the defendants do not accept it, because the plaintiffs must have the right of immediate possession in order to maintain the action, and, if a lien is not waived, it must be discharged before the plaintiffs can have this right.
The next question is, whether the exceptions disclose any evidence for the jury that the defendants had a lien. If trover had been brought, the value of the goods at Grand Cayman would have been the measure of damages. But, in replevin, it has often been found impossible to prevent the plaintiff from obtaining the benefit of an increase in the value of the property caused by the defendant, although the defendant, in expending money upon the property, has acted in good faith.
If money has been expended, it cannot be recovered unless it has been expended at the express or implied request of the other party, and, except perhaps in the case of innkeepers, a lien upon *406goods cannot be created without the express or implied assent of the owner. In the case at bar, the master and the owner of the schooner would not have had against the plaintiffs a lien upon the goods for freight, and, if they would not, the defendant Lambert could not acquire such a lien by paying the freight. Robinson v. Baker, 5 Cush. 137. Stevens v. Boston & Worcester Railroad, 8 Gray, 262. Clark v. Lowell & Lawrence Railroad, 9 Gray, 231. Gilson v. Gwinn, 107 Mass. 126. Storms v. Smith, 137 Mass. 201.
The United States have probably a lien against the owner for duties upon imported goods in their custody, although the importation has been made by, and on account of, a person who came wrongfully into the possession of the goods, and the duties must be paid, if the goods are entered for consumption and are withdrawn from the custody of the United States; but this lien is not transferred to the person who pays the duties and receives the goods. The general rule is, that no lien can be implied in favor of a person who acts adversely to the rights of the owner. Cases cited supra. Lempriere v. Pasley, 2 T. R. 485. Alen v. Ogden, 1 Wash. C. C. 174.
The defendant Lambert puts his claim, however, upon the ground that the plaintiffs, by their conduct, are estopped from denying that he had a lien, or from denying that the duties were paid for their use and at their request. The instructions given by the - court are not merely that, if a tender would have been useless, the failure to make it would not prevent the plaintiffs from maintaining the action, but they involve also the question of a waiver of a tender by a general and absolute refusal to surrender the goods. The principles invoked on both sides are essentially those of equitable estoppel. Each party contends that the other neglected to speak when it was his duty to speak, whereby the other was intentionally misled into doing or omitting to do what otherwise he would not have done or omitted. These equitable principles are enforced in actions at law when they go to the whole action. Mexal v. Dearborn, 12 Gray, 336. Thompson v. Rose, 16 Conn. 71. Everett v. Saltus, 15 Wend. 474; S. C. 20 Wend. 267.
When the facts on which a lien rests are as well known to the plaintiff as to the defendant, and the defendant simply refuses *407to give up the property without alleging any reason, we do not think that a lien, if one exists, is thereby waived. Everett v. Coffin, 6 Wend. 603. White v. Gainer, 2 Bing. 23. Avery v. Hackley, 20 Wall. 407, 412.
It may be that, if the lien is unknown to the plaintiff, and the defendant knows or has reason to know this, it is the defendant’s duty, when a demand is made upon him for the property, to give the plaintiff notice of the lien, if he rélies upon it; and it has been often held that, when the defendant puts his refusal to surrender property upon a ground which is inconsistent with a lien, he cannot defeat an action by setting up a lien of which the plaintiff was ignorant at the time he brought the action. Still, even in these cases, there may be a distinction between waiving the necessity of a tender as a condition precedent to the right of action, and losing the right to have a claim upon property satisfied in some manner. Hudson v. Swan, 83 N. Y. 552.
Under the pleadings, the burden was on the plaintiffs to prove property, general or special, in the goods replevied, and the right of immediate possession; but it may well be doubted whether the defendants, under their answer, can rely upon a lien, if they have one. The defendants deny that they unlawfully took the goods, but do not deny that they unlawfully detained them, except by alleging that the goods “were the property of and belonged to the defendants, and were not the property of the plaintiffs, and the defendants were and are entitled to the possession thereof.” The fair construction of this answer is, that the defendants say they are entitled to the possession of the goods, because they say that the goods are their property. Such an allegation might perhaps be held to raise only the issues of property in the goods and of possession as dependent upon property. The refusal of the court to rule as requested, and the rulings given, however, do not appear to have been put upon the form of the pleadings, and, as the questions argued are of substantial importance, we are unwilling to decide the case upon this ground.
The exceptions state all the evidence introduced by either party “ in regard to Lambert’s acts or connection with the matter, or of the dealings or interviews of the plaintiffs with him; ” and that “ the counsel for the plaintiffs stated in argument *408that the plaintiffs were willing to repay to Lambert the duties upon said molasses paid by him.” If the plaintiffs or their agénts knew or believed that Lambert, in good faith, claimed the goods as consignee of a supposed owner other than themselves, and they, believing themselves to be the owners, and intending to claim the goods, stood by and permitted him to pay the duties witho.ut disclosing their claim, and with the intention of replevying the goods after the duties were paid, we think that Lambert was equitably entitled to have the amount of the duties paid to him before the plaintiffs were entitled to possession, and that he thereby acquired an equitable lien upon the goods; and we also think that the evidence recited in the exceptions does not show that this lien has been waived or lost. Willmott v. Barber, 15 Ch. D. 96. Ramsden v. Dyson, L. R. 1 H. L. 129, 141, 168, 170. Rennie v. Young, 2 DeG. & J. 136. Wendell v. Van Rensselaer, 1 Johns. Ch. 344. Niven v. Belknap, 2 Johns. 573. Pickard v. Sears, 6 A. & E. 469. Gregg v. Wells, 10 A. & E. 90. Dewey v. Field, 4 Met. 381. Hinchley v. Greany, 118 Mass. 595. Griffin v. Lawrence, 135 Mass. 365.
If the defendant Lambert had this lien, it was the duty of the plaintiffs to discharge it by paying the amount of the duties before they replevied the goods. The effect of an offer to do this, if Lambert refused to state to them the amount, and they were thus prevented from tendering the exact amount due, need not be considered. If the instructions requested ought not to have been given without some modification such as has been suggested, yet the instructions given were erroneous, and there must be a new trial. We are not now,required to determine whether, if on a new trial the defendant Lambert should obtain a verdict, and it should be established at the trial that his only right to retain the goods was as security for the payment of the amount of the duties, he would be entitled to a judgment for a return, if the plaintiff, after the verdict, paid this amount to him or into court for him.
Exceptions sustained.