The Compiled Statute, chap. 33, sec. 14, provides that when any goods of the value of more than twenty dollars, shall be unlawfully taken or unlawfully detained from the owner, or the person entitled to the possessiooi thereof, &c., such owner or other person may cause them to be replevied, &c.
One ground of defence in this case is, that the plaintiff was not the owner, nor entitled to the possession of the cow in ques-. tion, by reason of the contract with Edward Sprague, one of the directors of the Union Store. The contract recited in the report, purports to be an absolute transfer by sale and the receipt of payment therefor, but it provides that the cow “is to remain in William Wills’ possession as long as said Sprague thinks best.”
The cow, after said contract, remained, and at the time of the taking and detention of her by the defendant, was in the pos*223session of the plaintiff, in pursuance of said provision of the contract, — so that stopping here, it would seem that the plaintiff was so entitled to the possession of the property as to entitle him to maintain replevin for the unlawful taking or detention of her by any other person. «
But it was further shown in the case that, though the contract in writing purported an absolute sale, still the transaction was in point of fact a conveyance by way of security for a debt, with an agreement of defeasance upon paying the specified amount of the indebtedness.
This agreement of defeasance was verbal, but it is not claimed, as it indeed could not well be, that such a parol agreement of defeasance might not be shown, and be effectual to characterize and show the true intent and legal effect of the transfer.
In this view, Sprague’s title was that of mere mortgagee, and the possession could properly remain in the mortgagor, unless the mortgagee saw fit to take the possession, and thus convert the mortgage into an executed pledge.
The matter of possession was wholly between Sprague and Wills, imless some person had a right to supervene upon the property as being that of Wills, by reason of his retaining the possession, notwithstanding the contract of transfer by Wills to Sprague, or by reason of some right to the property itself as that of Wills which could not be defeated by any disposition that Wills' might make of it.
We regard this ground of defence therefore untenable, deeming it clear that Wills’ right of possession was ample to entitle him to have this suit against the defendant, provided the taking or detention by the defendant was unlawful.
This brings us to the question, whether the taking or detention by the defendant was unlawful. And this depends on the existence of the lien which ho asserted on the cow, as security for the payment for having kept and boarded her for the plaintiff.
If such lien existed it was by force of law applicable to the fact of his having kept and boarded the cow for the plaintiff, for the case negates any lien by reason of any contract in that behalf.
*224On- this point the burden is on the defendant of establishing the alleged lien, by virtue of which he claims to defend this suit; and in this respect the report of the referee is the only resource,
¥e can only take cognizance of the facts therein found and reported;
Those facts, in our apprehension, not only, fail to serve the defendants purpose, but affirmatively show that he had no lien upon the cow.
1st. The report shows that the keeping of the cow by the defendant, and his payment to others .for keeping her, was made matter of charge in a general running account between him and the plaintiff, and this was constantly varying, so that, in March 1856, the defendant was owing the plaintiff about $30. And the referee reports that he is unable to find, upon an examination of the accounts of the parties and the testimony in the* case, that upon their accounts, including the charges for keeping the cow, amounting in all to $31.75, there was any balance due to the defendant. Unless it be found that the plaintiff was owing the defendant for keeping the cow, of course there exists no ground for a lien.
There is no debt or charge for which a lien could in any event be asserted, — in other words, there is nothing for which a lien is needed.
This, then, must be conclusive agaihst the defence. It would seem moreover, that the fact itself of the defendant’s turning the keeping of the cow into the current of general deal, and putting it in with, and upon the same footing as other matters of charge, having no relation to the cow, upon which he was receiving pay by current credits to the plaintiff, or charges by him, is altogether inconsistent with the idea of an implied lien on the cow, to meet and secure the charges for her keeping.
But there is still another view which is fatal to the defence ; and that is, that the law gives no iien on the cow for the agisting thereof. • The cases, to which reference was made by the defendant’s counsel, establish only that factors, bailees for hire, carriers and inn-keepers, artizans and mechanics* have a lien on the property entrusted to them for expenditures or charges in *225respect thereto, or for work expended thereon, and this for reasons peculiar to such classes "of persons — none of which reasons exist as to the agistors of cattle.
The case of Cummings v. Harris, 3 Vt. 244, in the opinion delivered by Hutchinson, Ch. «T., will indicate the law and its reasons on this subject.
And in the note to 2 Kent Com. 365, it is said, “ This lien does not extend to agistors of cattle and livery stable keepers, without a special agreement, or the horse be taken for training,” and several cases are cited. 1 Sw. Dig. 538, states the law in the same way.
1 In relation to the exception taken to the overruling of the motion of the defendant to. set aside the report, it is sufficient to say, that, so far as the motion was based on matters which were addressed to the discretionary powers of the county, court, the decision of the county court is not subject to revision in this court.
So far as tlie motion was based on matters of law governing the rights and liabilities of the parties in respect to the subject matter of the litigation, the views of the court upon the main case, equally apply to this exception.
On the whole, therefore, we think the judgment should be affirmed.