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The opinion of the court was delivered by

Kennedy, J.

Five errors have been assigned, but the third seems to be the only one that is maintainable. It is an exception to the answer given by the court below to the fifth point submitted by the counsel for the defendant. By it the court were, requested to instruct the jury that “a factor, such as the defendant was, as between the plaintiff and'himself, had a lien upon the goods of his principal for advancements made by him, or responsibilities incurred in conducting the agency; and the goods could not be taken from him by the principal, without first paying such advancements, or relieving the agent from such responsibilities.” The court, in reply, told the jury “it was a general principle of law, that a-factor had alien upon the goods of his principal for advancements made by him, or responsibilities incurred in conducting the agency, and the goods could not be taken from him by the principal without paying such advancements, or relieving the agent from such responsibilities; as far as this principle applied, the defendant ’was entitled to use it in his defence; we can not say, as requested, that the defendant was such factor, and had such right. When parties make particular agreements and stipulations between themselves, such agreements and stipulations take place of general principles of law. The parties make the law in such cases for themselves. If there was nothing in the agreements and arrangements of the parties indicating a different rule, the law of lien ivould apply, and afford a defence against this suit. The plaintiff, in the nature of his action, claims the property and the possession of it. It is plain, if he was, at the time of issuing the writ, not entitled to such possession, by reason of a lien in favour of the defendant, such as is alleged in the plea of the defendant pleaded, the plaintiff could not recover.” Now it may be, that the court intended, and I am rather inclined to think it was so, to instruct the jury, that-from the ■evidence the defendant could not be considered in the light of a factor, and as having a lien upon the goods for his advances or responsibilities incurred, and therefore, as such, could not claim to have the possession of the goods and make it a ground of defence in this action. But it appears to us from the obscurity of the language Used by the court in their answer, that the jury might'readily have understood the court differently, and have thought that the court intended to instruct them, that the defendant was such an agent, or 'factor, as had, by operation of law, a lien upon the goods, unless tie had deprived himself of it by his agreement made with the plaintiff; and whether he had or not was a question of fact for them to decide. Now it would have been error in the court to have given such instruction to the jury; because, from the evidence, the defendant could at no time be considered as the factor, technically speak*515ing, of the plaintiff, so as to give him a lien on the goods. His agency was of an entirely different character. Though the term agent, being nomen generalissimum, includes a factor, yet the latter is only a particular species of agent. His time is not wholly taken up in the employment of any one person, as that of the defendant was in the employment of the plaintiff here; but he may be, and frequently is, engaged every day in buying and selling goods for divers persons, who have employed him for that purpose. His employment, in general, is by persons who reside abroad or at some distance, and he is never employed to give all his time and attention, exclusively, to the business of the same individual, for a definite period of time, as the defendant was by the plaintiff in this case. The lien which a factor has on the goods of his principal in his hands, is what is termed a general lien, founded on custom, and not much favoured, because it encroaches upon the common law, and destroys the equal distribution of a debtor’s estate among his creditors. Hence such a lien is looked at with jealousy, and can only be established by the production of clear and satisfactory evidence, showing either a settled and uniform usage authorising it, or an express agreement between the parties creating it, or else a particular mode of dealing between them, from which it may be fairly and necessarily inferred. Rushforth v. Hadfield, 6 East 519; S. C., 7 East 224; Houghton v. Matthews, 3 Bos. & Pul. 494; Bleadon v. Hardcock, 4 Carr & Payne 152. But in the present case nothing of the kind appears which could give the defendant a lien of any sort, either general or particular, upon the goods. And as the evidence went to establish most indisputably that the right of property in the goods was in the plaintiff, there is great reason to conclude that the jury understood the court below as leaving the question of lien or no-' lien oh the goods as a question of fact, to be decided by them; and that they, conceiving the defendant had a lien upon the goods, found in his favour. For it appears abundantly clear from the evidence, that the defendant proved no right which could, in law, entitle him to a return of the goods, whatever his right may be under the agreement made between him and the plaintiff, to have the goods restored to the possession of the person with whom they were, in pursuance thereof, deposited. Besides, it may be that the defendant has sustained no real loss or damage by the removal of the goods from the custody of the depository, for as yet it has not been-shown in whose favour the balance would be, upon a final and complete settlement of their mutual claims. Upon such settlement, for aught that appears, it may be, that the defendant will be found to be indebted to the plaintiff, and if so, the plaintiff is clearly entitled to the possession of the goods. It would, therefore, seem to be requisite or proper, that the defendant should, in some action to be brought by him, prove and show the plaintiff’s indebtedness to him; otherwise it would be the greatest injustice imaginable, that the defendant should not only *516have all the goods given up to him, but recover also from the. plaintiff damages to the amount of nearly 800 dollars. Seeing the defendant was not in the possession of the goods, but had, by the consent of the plaintiff, previously to suing out the writ of replevin, delivered them over to a third person, I do not see why he should have been made the defendant in the writ. But having been made' such, it appears to me that the only plea which he could have sustained, would have been that of non cepit. Under this plea, from the evidence, he would have had a verdict in his favour, entitling him to costs, but not to a return of the goods.

Under this view of the cause, we conceive that the answer of the court below, given to the defendant’s fifth point, was couched in language calculated to mislead the jury in relation to the law on the subject of lien.

Judgment reversed, and a venire de novo awarded.

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