#### Thomas Sumner *versus*Theodore Hamlet.

Where certain manufacturers of cloth agreed to give to the defendant, one of their creditors, security for his demand, and for that purpose authorized one of their workmen to select and hold a certain number of pieces of cloth for the use of the defendant, and some weeks afterwards this workman, at the requisition of the defendant, selected the pieces and removed them to another room in the factory, where he worked, and gave notice thereof to one of the manufacturers and to his own attendants, it was *held,*that the defendant had acquired a lien which was valid against an attachment subsequently made on the same goods by another creditor of the manufacturers.

In order to maintain such lien, it is not necessary that the goods should be removed from the premises of the manufacturers $ it is sufficient that they are so far in the custody of the special bailee as that he can at all times have the legal custody of them, and give notice of the lien to any purchaser or attaching creditor, and remove the goods if such removal should be necessary for the safety of his principal.

It is no obstacle to the acquisition and maintenance of such lien, that the goods, when selected and set apart, are unfinished, and are to be finished by the special bailee at the expense of the pledgers.

Trespass for taking and carrying away fifty pieces of white flánnel, the property of the plaintiff. At the trial before *Shaw*C. J. it appeared, that on November 24, 1829, the plaintiff, being a deputy sheriff, attached at the suit of Swett & Atwell, a factory, together with the machinery and stock contained therein, at Dracut, as the property of Sewell Stanley and Co., viz. Sewell Stanley, Sylvan Stanley and John D. Clapp, who were proprietors of the factory, carrying on the same for their own account. The stock consisted of raw materials, a few finished goods, and materials *78more or less wrought, in all the various stages of the process of manufacturing into flannel. After the attachment, by con sent of the parties, viz. the attaching creditors, the debtors and the officer, the factory was put into operation, for the purpose of finishing the unfinished goods, the attaching creditors paying the workmen for their labor.

Several days after the attachment, and while the goods were under keepers appointed for that purpose by the plaintiff as the officer who had made the attachment, the goods in question, to wit, forty-five pieces of flannel, were taken and removed from the factory under the following circumstances. These goods were finished off after the attachment, under the direction of Guild, the finisher of the establishment, baled up ready for market, and placed upon the lower floor of the factory, where goods were usually placed when finished preparatory to their delivery. This being the situation of the goods, six or eight persons, by the order or request of the defendant, entered the factory in the presence of the officer’s keeper, in the day time, and took away the goods, the keeper remonstrating against it but not having sufficient force to resist it.

The defence relied upon was, that if the plaintiff had a right to attach unfinished goods in the process of manufacture, still that the defendant had a lien upon the goods in question or a special property therein, that the attachment, as against him, was unlawful and void, and that he had a right to take possession of and remove these goods.

The proof in support of this defence was, that in August 1829, about three months before the attachment, Stanley & Co. being indebted to the defendant about 400 or 500 dollars, he wished for payment, which they could not then make. He was not satisfied without security, and they agreed to give him security on goods. For this purpose they selected forty-five pieces of unfinished flannel, and placed them in the care of Guild, to keep for the defendant. It was further understood by all the parties, that if Guild should give up the particular forty-five pieces thus selected, to Stanley & Co., when finished, to be sent to market for them, he was authorized to selec. any other forty-five pieces of like quality, to hold as security for the defendant. A teceipt of Guild, dated August 31, *791829, as also a bill of parcels of the flannels, were in the case. Afterward, in October, Stanley & Co. not being able to pay the defendant, it was agreed that they should make a note of 400 dollars, to be negotiated at the Lowell bank, that the defendant should indorse it, and that he should have the like security to indemnify him against such indorsement, that he before had for the money due. The note was made and negotiated accordingly, and 300 dollars paid to the defendant towards his debt. This arrangement was communicated to Guild. He was authorized to hold forty-five pieces of flannel under the like conditions, and he agreed to be responsible for such number of pieces to the defendant. No new receipt was given. The forty-five pieces originally selected in August, had been given up to Stanley & Co. and sent to market. According to the agreement in August, it was considered that Guild was to have the sole control of the forty-five pieces. There were usually on hand from fifty to one hundred and twenty pieces. The workmen could not work advantageously in the finishing department, without having as many as fifty pieces on hand. Some time in the early part of November, the defendant applied to Guild to know if he had forty-five pieces of flannel finished, and Guild told him he had not. The defendant wanted them, was fearful about his security, and wanted his pay ; and Guild also wanted to get up his receipt. Guild then told the defendant, that he would take forty-five pieces and finish them immediately for the defendant; and after the defendant had gone away, Guild and his men selected forty-five pieces from the weaving room, as they came from the loom, and doubled them and took them down to the mill, and told two of his workmen that they were for the defendant, and that .he wanted them to be finished by thanksgiving day. He went on finishing these pieces, and at the same time keeping along with his other work, but had not got them finished by thanksgiving day. He mentioned to Clapp, one of the firm of Stanley & Co., that he was finishing the goods foi the defendant, and Clapp said he would see about it. This was on the day on the evening of which the attachment was made. Guild testified that he told Atwell the same evening that there were forty-five pieces belonging to the defendant, *80but that he did not point them out particularly. Atwell testi hud that Guild did so tell him, but not. on the same evening. Guild went on dressing and finishing these pieces till Monday, four or five days after the attachment. Part of them were baled up on Saturday, and the remainder on Monday morning, and all were marked T. H. with red chalk, as the defendant’s initials, and placed in the lower room of the factory, as before stated, and were delivered by Guild to one Burt, by the defendant’s direction and for his use, and were then removed as before stated.

The circumstances under which Guild worked in the factory, were these. He was paid for dressing and finishing, by the piece, he paying his own workmen. The employers were to find all the materials used in the process. The work was done principally in the lower room of the factory. There was a machine shop on the same floor, but a part of the room was set off as a finishing shop and the work was principally done there. The fulling was done in the cellar, the bluing and bleaching, in a small detached building, and the drying, upon the tenter bars standing on grounds adjoining. The employers did not consider that they had a right to interfere with the apartments and apparatus used by Guild, so as tó interrupt his work. The course of business was, when the work came from the loom in the weaving loft, to have it examined and an account taken of it, and then it went to the dressing room. The weavers were paid by the piece. No charge of the goods was made to Guild, and no account kept with him, except that he was credited for the amount of his work. If any question arose as to the quantity, recourse was had to the weaving book. A distinct business was carried on by one Alker, in 'a separate apartment of the same factory. In the lower story of the factory was a bed in which one Gage and Milton Stanley usually slept. Gage was in the employment of Alker, and Milton Stanley was carrying on some business for himself; but neither of them was in the employment of Stanley & Co. The keys of the factory, in the night time, were usually left with Gage and Milton Stanley.

Upon these facts several questions were raised ; among others, whether the agreement of Stanley & Co. with the defend-*81an and with Guild, and the authority to Guild to select forty-five pieces and hold them for the defendant, and the selection made a short time before the attachment, under the circumstances, constituted an hypothecation of the goods or created a lien or special property therein, so as to give the defendant a right of possession against the attaching creditors ; and if so, whether he had a right to take the goods, in the manner proved, out of the custody of the officer or his keeper, notwithstanding the attachment.

Judgment was to be entered on a nonsuit or default, or a new trial was to be ordered, as the Court should determine.

*Joseph Locke*and Peabody,

for the plaintiff, contended that the defendant had no lien on the goods, for want of an actual or constructive possession. There was a.mere agreement between Stanley & Co. and the defendant, which was not carried into effect, The pieces of flannel originally delivered to Guild for the defendant, were given back to Stanley & Co. and were sold on their account. The agreement cannot be sustained, against creditors. It was a floating contract which was to attach to different pieces of flannel successively, for the use of the defendant, until there should be danger of creditors interfering. Whether it is regarded as a pledge or as a conditional sale, there must be a delivery of the goods. *Hammonds*v. Barclay, 2 East, 227 ; *Wilson*v. Balfour, 2 Campb. 579 ; *Gladstone*v. Birley, 2 Meriv. 404 ; *Smith*v. Plummer, 1 Barn. & Aid. 582; *Gurney*v. *Sharp,*4 Taunt. 242; 6 East, 27, note; *Westwood*v. *Bell,*4 Campb. 349 ; *Hervey*v. *Liddiard,*1 Stark. Rep. 123; *M'Combie*v. *Davies,*7 East, 5. The contract was imperfect, because goods not in existence cannot be sold or pledged, inasmuch as they cannot be delivered. *Mucklow*v. *Mangles,*1 Taunt. 318. So while any thing remains to be done upon the goods by the vender or pledger, (as in the present instance, to finish the flannels,) the property does not pass. *Hanson*v. *Meyer,*6 East, 614; *Owenson*v. *Morse,*7 T. R. 64 ; *Rugg*v. *Minett,*11 East, 210; *Shepley*v. *Davis,*5 Taunt. 617; *Zagury*v. *Burnell,*2 Campb. 240; *Rapelye*v. *Mackie,*6 Cowen, 250. It may be said that Guild had a separate apartment in the factory; that, however, does not alter the case, for the *82flannels were to be finished at the expense of the debtors. ®ut TM ^act Guild worked as the servant of Stanley & Co. and in their factory, and he had no control of the apartment "n question, to the exclusion of Stanley & Co. The place where these goods were attached, was- the same in which the finisher always put goods to be carried to market.

*81*Oct*22a,

*82Even if the defendant might have brought an action for these goods, he had no right to take them by violence out of the possession of the keeper employed by the officer ; more especially as it does not appear that any evidence of his title was shown to the keeper. *Shumway*v. Rutter, 8 Pick. 448.

*Hoar,*contra, cited on the last point,

*Commomoealth*v. *Kennard,*8 Pick. 133. In regard to the lien, he cited *Bar* rett*v. *Pritchard, 2*Pick. 512; *Cadogan*v. *Kennett,*Cowp. 432; *Brooks*v. *Powers,*15 Mass. R. 244 ; *Badlam*v. *Tucker,*1 Pick. 397 ; *Baldwin*v. *Jackson,*12 Mass. R. 131 ; *Train*v. *Wellington,*ibid. 495 ; *Tuxworth*v. *Moore,*9 Pick. 347.

*April term, at Concord*

Shaw C. J.

drew up the opinion of the Court. The only fluest¡on which the Court have thought it necessary to consider in the present case, is, whether the defendant had a lien upon these goods, and a right to retain the possession of them ; and the Court are of opinion that he had. A lien is a right to the custody of the property of another, with a right to hold and retain the same against the general owner, as indemnity, or for security of some debt or obligation. *Wilson*v. *Balfour, 2*Campb. 579. Possession is essential to the creation and continuance of a lien, by the party claiming it, or some other person for his use, or as his agent. Here, so long as the claim of the defendant stood upon the executory agreement of Stanley & Co., it did not amount to a lien. But it is proved that by the agreement of that house, Guild was authorized to select and set apart, and to hold and retain forty-five pieces of unfinished cloth, for the use of the defendant, that in pursuance of this agreement, and upon the requisition of the defendant before the attachment, Guild executed this authority, and selected the particular forty-five pieces, for which this action is brought, gave notice thereof to one of the house and to his own attendants, and soon after the attach-*83merit, to one of the attaching creditors. We are of opinion, mat the selecting and setting apart of these pieces by Guild, in pursuance of an authority previously given him by the proprietors, before the claim of any other person intervened, constituted a lien thereon, for the indemnity and security of the defendant, to the same effect as if the same selection and appropriation had been made by the proprietors themselves.

We are also of opinion, that the *lien*thus created was maintained by the possession of Guild. Whatever was the nature of his general relation to the proprietors of the manufactory, in this particular transaction he was constituted the special agent of the defendant, for the purpose of keeping possession for him, although in other respects the servant of Stanley & Co. ; and pursuant to the power thus given him, he was both authorized and bound to retain the goods against the original proprietors, for the use of the defendant. To constitute such special possession, it was not necessary that the goods should be removed from the premises of the former owners; it was sufficient that they were so far in the custody of the special bailee, that he could at all times have the legal control of them, and give notice of the lien to any purchaser and attaching creditor, and remove the goods if such removal should be necessary for the safety of the principal.

We think it satisfactorily appears from the facts, that Guild at no time relinquished his possession so far as to discharge the lien, after it was fixed by the selection. Removing the goods from one part of the premises, and placing them in another, would not have this effect, unless there was an intention of the agent to relinquish the possession, or the goods were actually placed beyond his custody. Here they were not. They were placed by Guild himself in the lower room of the factory, a place to which he had constant access, and were marked with the defendant’s initials, preparatory to a delivery of them to him.1

As to the rule of law, that where any thing remains to be done, either to finish commodities for use, or put them into a merchantable condition, or where any act remains to be done *84to ascertain the amount and price, as measuring, weighing o* separating from a mass, we have no doubt of the correctness of the rule, but think it has no application to the present case. The rule applies to cases of constructive delivery and constructive possession ; and the rule is resorted to for the purpose of determining when the contract of sale is so far complete as to pass the property, according to the intent of the parties, in their contract. But where there is an actual sale, mortgage or pledge of unfinished goods, so intended and so carried into effect by an actual delivery, there can be no doubt, that such a contract is valid in law, and passes the property. And if the property vests by the contract, it is no objection, that other materials and labor of the vendor are added, as these pass with the principal by accession. *Glover*v. Austin, 6 Pick. 209.1

As there was a sufficient contract of pledge, an actual selection and constructive delivery in pursuance of that contract, by a delivery to an agent for the defendant, and that possession retained up to the time of the attachment, we are of opinion that the defendant had a lien on the goods, which the plaintiff could not defeat by the attachment, and therefore there must be

*Judgment for the defendant.*

1

 See *Macomber*v. *Parker,*14 Pick. 509; *Jones*v. *Baldwin post,*320.

1

 See *Baker*v. *Fuller,*21 Pick. 321