“The claim of a lien otherwise well founded cannot be supported if there is—
“1st, A particular agreement made and relied on. Sayer’s Rep. 224; 2 R. A. 92. Or,
“2d, Where the particular transaction shows that there was no intention that there should be a lien, but some other security is looked to and relied upon. 4 Burr. 2223.
“If, therefore, in this case the agreement between the defendant and the public agent actually was that he should be paid for feeding the public horses on as low terms as any other person on the road would supply them, he could not justify detaining the horses; for the particular agreement thus made, and under which the food was furnished, is the foundation of the remedy of the defendant, and it can be pursued in no other manner than upon that agreement. Or, if there was no particular agreement, this case is such that between the defendant and a private owner of horses and carriages employed in transporting the mail I incline to think it could not legally be presumed a lien was ever intended or contemplated. A carrier of the mail is bound not to delay its delivery, under severe penalties; and it can scarcely be supposed that he would expose himself to the penalty for such delay by leaving his horses subject to the arrest of every innkeeper on the road for their food, or that in such case the innkeeper could look to any other security than the personal credit of the owner of the horses for reimbursement. But the law on such a case could be only declared on facts admitted by the parties or found by the jury, and is not now before the court.
“3d, The great question in this case rests on a discrimination between the property of the government and individuals.”
After defining the constitutional rights of the government and its general power to lay and collect taxes, duties, imposts, and excise, to pay the debts and provide for the common defence and general welfare of the United States, and quoting numerous authorities, the judge concludes with the following:—
“A stolen horse found in the mail-stage. The owner cannot seize him.
“The driver being in debt, or even committing an offence, can only be arrested in such way as does not obstruct the passage of the mail.
“These examples are as strong as any which are likely to occur; but even these are not excepted by the statute; and probably considerations of the extreme importance to the government and individuals of the regular transmission of public despatches and private communications may have excluded these exceptions. But whatever may have been the policy which led to the adoption of the law, which the court will not inquire into, it totally prohibits any obstruction to the passage of the mail. It is the duty of the court to expound and execute the law, and therefore I am of opinion and decide that the defendant is not justified.”