VII. Within what limits liens are restrained.

This right of lien being admitted for the benefit of 2 Esp. Dig. 346. trade, it shall be confined in its operation to that only.

Cro. Car. 271.

Therefore, where the owner of five cows put them to Chapman v. Allen, pasture with defendant, and agreed to pay him 12d. per week for each cow, and afterwards the owner sold them to the plaintiff, it was adjudged, that defendant could not justify the detaining them for their keeping, but was put to his action against the first owner.

2 Bl. Rep. 1117.

So where in trover for a dog, the defendant justified Binstead v. Buck, the detaining, on the ground, that the dog had strayed casually to his house, where he had kept him twenty weeks, and demanded the expense of his keeping; on a case made, whether the refusal amounted to a conversion, the defendant's counsel declined arguing it: so the postea was ordered to the plaintiff.

VIII. How a lien may be destroyed.

A general right of detaining a thing until the money Selw. 1163. due for the work done upon it be paid, may be waved by

a special agreement.

T. 28 and 29.

Hence, where A. agreed to pay a farrier half a guinea Brenan v. Currint, for curing his horse of a distemper, and also a reasonable G. 2. B. R. sum for keeping it until it was cured; and after it was shortly stated in

cured, A. tendered the farrier the sum agreed on for the cure, who refused to deliver the horse unless A. would

pay 17. 17s. 6d. for the keeping of the horse; in trover for the horse, it was holden, that although, in general, a farrier might have a right to detain a beast delivered to him to be cured, until the money due for curing it was paid, (upon which point, however, the court declined giving any opinion) yet it was clear, that, in the present case, the farrier had no such right; because the general right of detaining (if he had any) was waved by the special agreement, that the party should pay a certain sum;

Say. R. 224.

Bull. N. P. 45.

and M. S. S. cited in

Selw. 1163.

and if the farrier could not detain the horse for the cure; a fortiori, he could not for the keeping. (1)

(1) The authorities relied on by the court, were 2 Rol. Abr. 92. (M.) pl. 1, 2. Str. 651 Yelv. 66. and the following case. In trover by an assignee of a bankrupt, it appeared that the goods had been attached in the hands of J. S. (to whom they had been delivered by the bankrupt) in a plaint, at the suit of the defendant. Afterwards, and before condemnation, an act of bankruptcy was committed; then the goods were condemned, and satisfaction entered on the record by the defendant. It was holden, that this evidence was sufficient to charge the defendant, the property not being altered until condemnation; and that the person who delivered the goods by compulsion of law was discharged. The C. J. added, that if the goods were delivered by a manufacturer, he might detain them for what he deserved for his labour, but if there was an agreement for the price, he could not; in that case, he must rely on the contract, and be in the same condition with other creditors. Cited in Selw. 1163, 1164.

TITLE CIII.

LORD'S DAY.

1. PENALTY for engaging in any work, business, or recreation, on the Lord's day.

2. Penalty for travelling on that day.

3. Innholders, &c. prohibited from entertaining persons, (other than travellers,) on that day.

4. Recreation prohibited on the evenings preceding and succeeding that day.

5. Power and duty of tythingmen.

6. Of the recovery and appropriation of the penalties incurred by a breach of the statute.

I. Penalty for engaging in any work, business, or recreation, on the Lord's day.

By statute 1791, c. 58, s. 1, no person or persons whatever, shall keep open his, her, or their shop, warehouse, or work-house, nor shall, upon land or water, do any manner of labour, business, or work, (works of necessity and charity only excepted,) nor be present at any concert of music, dancing, or any public diversion, show, or entertainment, nor use any sport, game, play, or recreation on the Lord's day, or any part thereof, upon penalty of a sum, not exceeding twenty shillings, nor less than ten shillings, for every offence.

By an additional act, 1796, c. 89, s. 1, the above penalty is increased to a sum not more than six dollars and sixtysix cents, nor less than four dollars, for each offence.

II. Penalty for travelling on that day.

By the statute of 1791, c. 58, s. 2, no traveller, drover, waggoner, teamster, or any of their servants, shall travel

on the Lord's day, or any part thereof, (except from necessity or charity,) upon the penalty of a sum, not exceeding twenty shillings, nor less than ten shillings.

By the additional act of 1796, c. 89, s. 1, the above penalty is increased to a sum not exceeding six dollars and sixty-six cents, nor less than four dollars, for each offence.

Furthermore, by the last mentioned act, no owner or driver of any hackney carriage, belonging to the town of Boston, shall drive said hackney carriage into, or from said town on the Lord's day, without first having obtained a certificate of permission from some justice of the peace within said town, for himself, and each and every passenger by him so carried, on the pain and penalty of forfeiting his license for setting up, keeping, and driving said hackney carriage, for the term of three years next after committing such offence.

III. Inaholders, &c. prohibited from entertaining persons, (other than travellers,) on that day.

By statute, 1791, c. 58, s. 3, no vintner, retailer of strong liquors, innholder, or other person keeping a house of public entertainment, shall entertain or suffer any of the inhabitants of the respective towns where they dwell, or others, not being travellers, strangers, or lodgers in such houses, to abide and remain in their houses, yards, orchards or fields, drinking or spending their time, either idly or at play, or doing any secular business, on the Lord's day, or any part thereof, on penalty of ten shillings, (which fine, by stat. 1796, c. 89, s. 1, is increased to three dollars and thirty-three cents,) payable by such vintner, retailer, or innholder, or person keeping such house of entertainment, for each person so entertained or suffered.

And every person so drinking and abiding, except as aforesaid, shall pay a fine not exceeding ten shilling, nor less than five shillings, (which fine, by stat. 1796, c. 89,

1

s. 1, is increased to a sum not less than two dollars, nor more than four dollars, for each offence.)

And every licensed person, upon any conviction after the first, shall pay a fine of twenty shillings, (which fine, by stat. 1796, c. 89, s. 1, is increased to six dollars and sixtysix cents;) and, having been three times convicted, shall be debarred from renewing his license for ever after.

IV. Recreation prohibited on the evenings preceding and succeeding that day.

By the statute of 1791, c. 58, s. 5, no person shall be present at any concert of music, dancing, or other public diversion, nor shall any person use any game, sport, play or recreation, on the land or water, on the evening next preceding or succeeding the Lord's day, on pain of ten shillings for each offence, (which fine, by stat. 1796, c. 89, s. 1, is increased to three dollars and thirty-three cents.)

And no retailer, innholder, or person licensed to keep a public house, shall entertain, or suffer to remain, or be in their houses or yards, or other places appurtenant, any person or persons, (travellers, strangers, or lodgers excepted,) drinking or spending their time on the said evenings, on penalty of ten shillings for each offence, (which fine, by stat. 1796, c. 89, s. 1, is increased to three dollars and thirty-three cents.)

V. Power and duty of tythingmen.

Information of of

By statute, 1791, c. 58, s. 10, it is the duty of these officers to inquire into, and inform of all offences against fences. the act; and they are obliged to take the oath of office. The form of this oath is prescribed by the act, and may be seen in the appendix.

And every such tythingman is authorized and empowered to enter into any of the rooms, and other parts of an inn, or public house of entertainment, on the Lord's day, and the evening preceding and succeeding.

Oath of office.

See Append. No. 2.

Empowered to enter the apartments of thea