SULLIVAN VS. TUCK. 61

THE CHANCELLOR:

If the case is to be governed by the principles applicable to
the relation of factor and principal, I am satisfied the complain-
ants cannot succeed, as the lien resulting by operation of law,
from that relation, cannot be extended to property situated as
this was, at the period of the death of Mr. Bowie. If at that
time the property had been in the hands of these parties, I
incline to think, that, independently of contract, and looking
alone to the rights resulting from the usages of trade, the com-
plainants would have been entitled to retain it, not only for the
charges and advances connected with the disposition of this
identical property, but for the general balance due the complain-
ants, growing out of other dealings of the like nature. Story
on Agency, sec. 364.

But as this property was not, either actually or constructively,
in possession of these complainants, when the testator died, the
lien founded upon the relation of the parties as factor and prin-
cipal, cannot be maintained; that lien being merely a right to
retain a thing, of which the party retaining, must of course be
in possession, it being impossible to predicate the right to re-
tain that of which the party has not the actual or constructive
possession. Story, sec. 361.

The plaintiffs' title to relief, then, must depend, not upon the
mere operation of law, independently of contract, but upon the
contract of the parties, as shown by the letters, and the facts
appearing by the pleadings.

It is very evident to me, from a perusal of these, that Mr.
Bowie did not ask or desire, nor did the complainants intend
to make the advances in cash, and accept his drafts upon his
general credit—on the contrary, it is perfectly manifest, that
all the transactions between them, were founded upon the ex-
press promise on the part of Mr. Bowie, to send them his pro-
duce, then in his hands, or growing, or to become available in
1848. There is nothing in his letters from which it is possible
to come to a different conclusion, and I am therefore entirely
satisfied, if I refuse the relief asked by this bill, I defeat the
clear design and intention of the contracting parties,
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