The opinion of the Court was drawn up by
Shepley J.The instructions in this case authorized the jury to find, that the defendant was entitled to a lien upon the horse for his keep and cure. It is insisted for the plaintiff, that they were erroneous. For the defendant, it is contended, that they may be sustained on the ground, that he was an innkeeper.; and the facts proved would be sufficient to entitle him to be so considered by the rules of the common law. In this State no person can lawfully assume that character without first obtaining a license therefor according to the provisions of the statute, c. 36. The seventeenth section of that statute provides, that no person shall be a common innholder, except such person be duly authorized therefor. It is said, that the provisions of this statute should be considered as limited to *443cities, towns and plantations, in which alone licenses can be obtained. That a construction, which would include the unincorporated places in our new settlements, would prevent their legal existence there. Such may be the result, and it may be desirable, that the law should be otherwise; but that would not authorize the Court to except all those parts of the State, when the language is general, and operative over every part of it, without finding any such exception in the statute. If the defendant could be considered as an innkeeper, it is doubtful, whether he would be entitled in that character to a lien in this case. Neither the owner of the horse nor the person, to whom he was entrusted, was entertained at the inn, when the horse was left with him ; and the decided cases are at. variance, whether a lien exists under such circumstances. The case of Mason v. Thompson, 9 Pick. 280, would be favorable; and the case of Grinnell v. Cook, 3 Hill, 485, opposed to it. The defendant may, however, sustain the lien in the character of a farrier, or person having the horse entrusted to him to be kept, and cured. The testimony shows, that the horse was left with him for that purpose, and that ho caused him to be kept and cured. Some difference of opinion will be found in the earlier cases, whether he would, under such circumstances, be entitled to a. lien. 21 Hen. 6, 55; Keil. 50; Benan v. Currint, Sayer, 224; Ex parte Deeye, 1 Atk. 228; Ex parte Ockenden, idem 236. In more modern times the Courts have been favorable to the existence of particular, and less so to general liens. In the case of Savill v. Burchard, 4 Esp. R. 55, Lord Kenyon said, the courts of law, and the understandings of people in gonqral, had gone much in favor of these liens. Tn Jacobs v. Latour. 5 Bing. 130, Best C. J. observed, that as between debtor and creditor, the doctrine of lien was so equitable, that it could not be iiivored too much. That spirit is found pervading the latter treatises and decisions. Kent states, that “the law has given this privilege to persons concerned in certain trades and ‘occupations, which are necessary for the accommodation of the people. Upon this ground common carriers, innkeepers, and farriers, *444had a particular lien by the common law.” And that “ the same right applies to a miller, printer, tailor, wharfinger, or whoever takes property in the way of his trade or occupation to bestow labor or expense upon it.” 2 Kent. 634.
Story also states, that a bailee, for work on a thing, has a lien upon it for the amount of his compensation. Story on Bailm. $ 440. And that salvors, innkeepers, common carriers, farriers, blacksmiths, tailors, shipwrights, and other artisans, have' such a lien. Story on Agency, § 355. That a printer had a lien on the printed sheets for compensation for printing them was decided in the case of Blake v. Nicholson, 3 M. & S. 167. That a miller had upon the meal, which he had ground, in the case of Chase v. Westmore, 5 M. & S. 180. And that a stable keeper had upon a horse sent to him to be kept and trained for the race course, in Benan v. Waters, 3 C. & P. 520. The cure of a lameness or disease to which the horse was subject, would seem to be a service quite ■as meritorious, find as much deserving the favor of the law, as the training him for a race course. Best C. J. did not however found his opinion upon the particular merit of that service but upon the doctrines of the common law. “ For I take it (he says) to be a common law principle, that if a man has an article delivered to him, on the improvement of which he has to bestow trouble and expense, he has a right to detain it until his demand is paid.” These authorities would authorize the instructions in this case, unless the testimony shows, that the defendant, by some act of his own, had waived or destroyed his lien. He cannot properly be considered as having waived, or asf intending to waive it, by his contract with Jefferds to receive the horse in payment of the amount due to him, paying the difference in value, when he obtained no title by that contract, because Jefferds had no authority to make it. By that want of authority the contract became ineffectual and inoperative for any purpose. And if, as some of the witnesses state, the defendant said, he had sold the horse to his brother, while he supposed his own title to be perfect, that would not show any intention to waive his lien. It might *445have defeated it, if there had been proof of an actual sale and delivery. That his brother could have obtained no title by any such attempted sale is apparent, for the defendant could not sell that, which he did not own. The defendant, without any fault on his part, having been led into these inoperative proceedings by the deceit of Jefferds, should not be prejudiced by them. His compensation for the keep and cure of the horse still remained unpaid, and the horse still remained in his possession. Judgment on the verdict.