Smith v. Marden , 60 N.H. 509 ( 1881 )

The first section of the lien law (G. L., c. 139) gives a boarding-house keeper a lien upon the baggage of his guest, even if the baggage is, in a certain sense, in the constant possession of its owner, and although it is not continually in the house. Whatever may be the legal rights of any interested party when the baggage, or a part of it, carried out of the house by the boarder, in the usual or unusual course of his business, has been sold by him, or attached by his creditors, there may well be a lien of some kind as against the boarder, and third persons having no title or right of possession: and some right of lien the legislature intended to establish. There is no such constructive notice of the lien, for four, sixty, or ninety days, as in other cases under the lien law; but it was the purpose of the legislature to give a lien on the boarder's baggage, at least as against him and third persons having no title or right of possession, although, to some extent, the lien would generally be a shifting one. It is consistent with some change of apparel. It is adapted to the nature of the subject-matter, and the boarder's reasonable and expected use of his property. And there may as well be an unrecorded lien on a milch cow, pastured in the usual manner, as on a boarder's baggage, subject to his customary use.

If a purchaser or attaching creditor would have had no constructive notice of the plaintiff's lien, during the pasture season or any part of it, or afterwards, there is no reason why the plaintiff should have no lien, during that season, as against the defendant who has no interest in conflict with the plaintiff's. The daily right of the owner to take the cow from the pasture, for a usual and proper purpose, is as consistent with a lien, as the daily right of a boarder to carry various articles of his baggage from his boarding-house. In neither case did the legislature intend to withhold all security from the creditor, or to deprive the debtor of all possession and use of his property.

Mrs. Munroe was not the tenant or occupant of the plaintiff's pasture. By their contract he assumed some obligation in regard to the sufficiency of the fence. And there is no authorized distinction on which it can be held that the plaintiff was not a person to whom the cow was "intrusted to be pastured," within the meaning of the law. The statute does not expressly exclude a lien when the contract is to pasture or board an animal a month, a week, a day, or parts of successive days, or when the owner is to have the use and possession of it a part of every day; and there is not satisfactory evidence of an intent to leave the creditor, in such cases as this, without equitable security. There is no question between the plaintiff and Mrs. Munroe's administrator. It does not appear that there is an administrator, or that the plaintiff infringed any one's right by taking the cow into his possession, at the death of the owner, before the end of the pasture season. From his possession, the defendant took the cow without right. However qualified the plaintiff's lien may be, it is a security which the defendant cannot dispute. The plaintiff did not relinquish the possession to which, by virtue of his lien, he was entitled as against the defendant.

Judgment for the plaintiff.

STANLEY and BLODGETT, JJ., did not sit: the others concurred.