The opinion of the Court was delivered by

It is not to be doubted that the law of particular or specific lien on goods in the hands of a tradesman or artisan for the price of work done on them, though there is no trace of its recognition in our own books, was brought hither by our ancestors; and that it is a part of our common law. It was as proper for their condition and circumstances here, as it had been in the parent land; and though a general lien for an entire balance of accounts, was said by Lord Ellenborough in Rusforth v. Hadfield, (7 East 229,) to be an encroachment on the common law, yet it has never been intimated that a particular lien on specific chattels for the price of labour' bestowed on them, does not grow necessarily and naturally out of the transactions of mankind as a matter of public policy. Originally the remedy by retainer seems to have been only co-extensive with the workman’s obligation to receive the goods; a limitation of it which would, perhaps, be inconsistent with its existence here, for we have no instance of a mechanic being compelled to do jobs for another. But even the more recent British decisions have extended it to the case of every bailee who has, by his labour or skill, conferred value on the thing bailed to him. Chapman v. Allen, (Cro. Car. 271); Jackson v. Cummins, (5 Meeson & Welsby 349). But as an exclusive right to the possession of the thing is the basis of such a lien, it exists not in favour of a journeyman or day-labourer, whose possession is that of his employer, and who has no other security for his wages than the employer’s personal responsibility on the contract of hiring; and he who claims it, therefore, must be a bailee under the contract which the civilians call locadio operis faciendi. The defendant below was undoubtedly such a bailee, and entitled to retain his work for the price of it; for though the plaintiff was not the absolute owner of the material delivered, he had power, by virtue of his contract with the owner, to employ whom he would to work it up and thus give room for a specific lien on it, which would be available against both himself and his employer. Indeed, having this material as a master-builder, and consequently having a special property in it, he may be said to have been, for the purposes of his business, the owner of it; and his delivery of it to the defendant to have it made into doors, gave the latter an indisputable lien on it for the price of his work. But it was testified by a witness that it is the custom of the craft when they do piece-work, to bring it home for delivery before the.price can be demanded; and the defendant is shown to have offered to pay when the doors should be delivered to him. The existence of such a custom, if it were worth any thing, was for the jury under pro*396per direction, and not for the Judge who assumed all the circumstances necessary to pronounce that the defendant had not a lien. But taking the custom to have been established, it follows not that it can supersede the rule of concurrent performance in other cases, which makes tender a condition precedent on the part of him who chooses to take the first compulsory step. Now, though the plaintiff professed a willingness to pay when the work should be brought home, this was not itself a tender, but an offer to close with any tender which might come from the other side; and even the previous profession of a willingness to tender, is not equivalent to an actual tender at the proper time. Before the plaintiff brought his action, he ought to have gone to the defendant and offered him his money; by which he would have left the latter without the shadow of an excuse. He, however, actually tendered it, and the defendant accepted it, after suit brought; and hence it has been suggested that as there was no right of retainer at the time of the trial, there was nothing to stand in the way of a recovery. But the suit was brought before the right of action was made complete, and such a defect cannot be cured by any subsequent act except a binding agreement not. to take advantage of it; nothing of which took place here, for the money was paid and received without stipulation or terms connected with the pending action. For instance, he who sues on a bond before it is due, must discontinue, pay costs, and begin again at the proper time; and so rigid is the law on this point, that if any part of the cause of action happens to be laid as of a time subsequent to the impetration of the writ, it is good cause to arrest the judgment. The reason is, that a court of law has no power to control the costs; and to allow a demand subsequently due to be recovered in an action brought too soon, would mulct a party who had done no wrong. Now, at no stage of this case, was the defendant a wrong-doer. When the action was brought, he had done no more than exercise his undoubted right of retention; and when his money was after-wards tendered to him, what was he to do ? Had he rejected it and continued to withhold the property, he would have become a wrong-doer in earnest, and subjected himself inevitably to the costs of a fresh action. His only course, therefore, was to take the money, and let the plaintiff take the property, and his own course as to the pending suit. The latter, it seems, did not take the property; and he now attempts to recover damages and costs as if he had tendered the price of the work before action brought, though the defendant was at no time in fault. It was error, therefore, to direct that, under the circumstances of the case, the latter had not a lien.

Judgment reversed.