¶1The opinion of the court was delivered by
¶2It may be true, that the existence and exercise of a lien will defeat the right of the general owner of personal property to maintain trespass; but it must, most clearly, be a lien in exercise before the trespass is committed. If the person, in whose favor the lien would exist, had never asserted it, the mere existence of some such dormant right could not be permitted, I think, to defeat the action of the general owner for a trespass, or conversion, committed by a mere stranger. But we think the facts in this case show, that the sawyer had virtually parted with the possession of the boards, before Harrison Bailey sold them to the plaintiff; — and es*477pecially, when the plaintiff made known to John Bolton, the sawyer, his intention to put the boards in a mill shed, which John Bolton did not claim to control, but of which he virtually disclaimed any control, by referring the plaintiff to William Bolton, the owner of the shed, — all the time making no claim to any lien for sawing,— we think his lien must be considered as waived, he having fully relinquished the possession, or control. Upon the same ground, too, we think it must be considered, that the plaintiff did remove the boards from the possession either of Harrison Bailey, or of John Bolton, — and more properly, we think, the former, — into the possession of William Bolton. We entertain no doubt, that this was a sufficient change of the possession to perfect his title, even against the creditors of Harrison Bailey.
¶3Judgment affirmed.