A A o 09 8 4 4 9 1 7 cz m 30 *^"^"^S — Bl 5 CD 3° ^^^^ 33 -< ^= 3> — i 5 mM V3\6 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY TREATISE •F THE LAW RELATIVE TO THE RIGHTS OF LIEN AND STOPPAGE IN TRANSITU. BY RICHARD WHIT AKER, ESQ OF THiS MIDDLE TEMPLE LONDON, PRINTED : NEW-YORK : REPRINTED AND PUBLISHED.. BY I. IULF.Y. 1816. T IX PREFACE. THE advantage which the profession has un- questionable derived from treatises in which the scattered principles and decisions concerning sub- jects of particular importance, and frequent occur- rence in the law have been collected, and reduced to method, would of itself (while any such subject remains not thus rendered easy of reference and comprehension,) be a sufficient apology for under- taking a work dedicated to those purposes ; and upon this ground alone an attempt to collect and methodize the law relative to the rights of lien and stoppage in transitu, would be justifiable were there no other motive for making it. But a more satis- factory reason suggests itself ; the laws of this country have deemed it expedient, that private in- dividuals should- have the power of enforcing their rights by their own immediate acts, in certain ca- ses, in which the means of doing it would be lost, if they were obliged to have recourse to the slower process of courts of justice. Where the individual is thus entrusted with the right of acting for him- self, and where the occasion may require him to 766 IV PREFACE. act with a promptitude which will not admit the precaution of resorting to legal advice, it becomes a matter of particular concern to him, to be tho- roughly acquainted with the nature and extent of his right. Among the rights of this description there are none more frequently called into exercise than those of lien and stoppage in transitu, and rj le, it may therefore be presumed, which the convenience not only of the profession, but of the very numerous class of individuals engaged in this country in commercial pursuits, more urgently re- quires to be made the subject of a distinct treatise. It is under these impressions, that I have endeav- oured in the following pages to collect and reduce to method the law relative to the rights of lien and stoppage in transitu ; rights which though they are in many points essentially distinct, bear so near a relation and resemblance to each other, that they may he very properly included in the same trea- tise. CONTENTS OF THE LAW OF LIEN. CHAP. I. Page. Nature, origin, and different species of lien 1 CHAP II. In what cases a particular lien may be acquired 13 1st. By the common law ib. 2d. By express contract ib- 3d. By a delivery through persons to whom the pro- perty on which the lien is claimed does not belong, as servants, &c. ib CHAP. III. In what cases a general lien may be acquired 31- 1st. By the general usage of trade ib 2d. By the particular usage of the parties ib. 3d. By express agreement ib. 4th. Through persons to whom the property on which the lien is claimed does not belong, as ser- vants, &c. ib. CONTENTS. CHAP. IV. Page. In what cases liens cannot be acquired 39 1st. In w'iat cases no general lien can be acquired though a particular lien may exist ib. 2d. In what cases no sort of lien can be acquired ib. CHAP. V. By what means the right of lien is, or is not, devested or waived 68 CHAP. VI. Lien of Attornies and Solicitors 75 Clerks of the several Court? 86 Bankers 89 Calico Printers 90 Carriers in general ib. by Water 95 Dyer 99 Factor or Broker 102 Farrier 113 Fuller 114 Innkeeper 115 Insurance Broker 121 Miller 124 Packer 126 Pawnee ib. Taylor 142 Vendor 143 Wharfinger 146 CONTENTS OF THE LAW OF STOPPAGE IN TRANSITU. CHAP. I. 1. Nature and origin of the right Page 149 2d. By what description of persons, and under what na- ture of contract it may be exercised ib. CHAP. II. How the stoppage of the goods is to be effected 166 CHAP. III. When the stoppage may be effected 174 CHAP. IV. When the consignor's right to stop the goods in transitu is devested by the consignee's having aliened them to a third person 209 GENERAL INDEX 211 INDEX O* CASES CITED. Page. Adams v. Clayton 132 Alderson v. Temple 53,4,5,6,7 Alger v. Hefford 77 Andrews, ex parte 90 Artaza v. Sinallpiece 97,8,9 Aspinall v. Pickford 93 Astley v. Reynolds 1 34 B. Baldwin v. Cole 8 Bamford v. Baron 55 Baring v. Day 23,4 Barnes v. Freeland 106 Bayley v. Ballard 58 Bell, ex parte 78, 80 Bennett v. Mellor 116 Billon v. Hyde 59 Binstead v. Buck 26,46 Birkott v. Jenkyns 166 Boardman v. Sills 75 Bohtlink v. Inglis 1 52,4,6 ,769,75,97 ,200,6 Bohtlink v. Schneider 151.80,200 Bowerin O'Deav. O'Dea 76 Ockendon, ex parte 5,8,15,73,117,25,30,1 Oppenneim v. Russel 8,11,16,31,3,7.42,92.-4.100, 52,71,5,96,205.9 Orlehar v. Fletcher 74 Ormerod v. Tate s:i.r> Owenson v. Morse 1 96 ©wston v. Bryan 82 Packer v. Gillu I -J'.' Parkei v. Carter 121,2 Parker v. Patrick 140 Parkhttrsl v. Foster 115 Page- Paterson v. Tash Peacock v. Rhodes 135 Pierson v. Dunlop Pultney v. Keymer 28,124 Pyne v. Earle R, 83 Rabon 3 v. Williams 123 Ratcliffe v. Davies 14 1 Read v. Dupper 81 Remington v. Stevens 6 Rex v. Smollet 87 Rich v. Coe 20 Richardson v. Goss 10,11,28,30,41,51,124,47, 75,S3,94,6 Roberts v. Mackoull 84 Robinson v. Walter 117 Row v. Dawson 64 Rushforth v. Hadfield 10,34,5,91,3,100,13 Rust v. Cooper 54,6,7,8 Ryallv. Rowles 66,127 S. Salomons v. Nissen 166,210,26,7 Savill v. Barchard 89,100,26,47 Schoole v. Noble 84,5' Scott v. Pettit 152,3,70,80,3,96 Scott v. Surman 158 Scudamore, ex parte 53,6 Shank, ex parte 21,68 Siffken v. Wray 159,73 Singleton v. Butler 56,7,9 Six clerks, ex parte 87 Skinner v. Upshaw 91 Slubey v. Heyward 145,6,80,1 Small v. Oudley 54,9 Smith v. Howies 158,62 Smith v. Bromley 134 Smith v. Goss 176,91,5,6 Smith v. Payne 56.7 NAMES OF CASES CITED. Page. Smith v. Staples 166 Snec v. Prescott 112,50,3,66,9,70,96,210,18, 22 Snook v. Davidson 39,122 Solnergreen v. Flight 98,9 Solomons v. Bank of Eng- land 136 Spears v. Hartley 6,8,34,147 Stephen v. Coster 147 Sterling, ex parte 79 Stokes v. La Riviere 191,5,7 Stone v. Lingvvood 44 Stoveld v. Hughes 170,81,229 Strode v. Blackhurne 136 Svvaine v. Senate 84,5,6 Sweet v. Pym 68,9,71,1 15,61 Syeds v. Hay 8,147 Tamplin v. Diggins 59,134 Taylor v. Hawkins 137 Taylor v. James 26 Taylor v. Lewis 87 Taylor v. Popham 80,6 Taylor v Wheeler 74 Thomson v. Freeman 56,7,8 Thornton v. Hargrave 54 Twort v. Day r ell 76 Page. Walker v. Woodhridge 151,3,67 Walley v. Montgomery 165,74 Warbrook v. Griffin 119 Ward v. Felton 73,99 Ward v. Hepple 76 Waring v . Cox 226 Wcldon v. Gould 51,90,124 Welsh v. Mole 80,1,2 Westerdell v. Dale 20 Weymouth v. Boyer 47,109 White v. Baring 20 Whitehead v. Vaughan 44,64,70,121 Whitfield v. Lord Le De- spencer 91 Whithill v. Thompson 55 Wilkins v. Carmichael 10,21,68,81 Wilson v. Balfour 2,53,67,127,34 Wilson v. Day 54 Wiseman v. Vandeput 103,51,62,6 Wolf v. Summers 97 Worsely v. Demattos 54,5,S Wright v. Campbell 157,210,15 Wright v. Lawes 177,88,96,204,25,6 Vanderzee v. Willis 89,132,3 Vaughan v. Davies 85 Vernon v. Hankey 59.73 w. Waldron's case 87 Walker v. Birch 50,103,8,30 Walker v. Burrow? 74 Yeatcs v. Grove 58,64 Yorke v. Greenau^h 14,16,47,91,2,115,6,7,8 Yorke v. Grindstone 117 Z. Zinck v. Walker 103 THE LAW OF LIEN CHAP. I. Nature, Origin, and different Species of Lien. THE term lien, as adopted by our courts of law . Defin 'i- und equity, and as used by our legal writers, differs the term in the extent of its acceptation. In that which is in its most extensive, it applies to every case in which J^-ed"" either real or personal property is charged with the scnse payment of any debt or duty ; every such charge being denominated " a lien on the property." It is not my intention in this treatise to enter into die consideration of every sort of legal and equi- table right, which this comprehensive definition of the term embraces. Were the whole law on the subject collected, it would not only occupy much more space than that which it is purposed to give ;o this treatise, but *would supply ample matter *o for more than one. The kinds of lien to which the present will be confined, are those which arc included under the term in its most limited siscnifl- * THE LAW OF LlEiV second- cation, and in which it has been defined to be, " the niosTcoii! r ight which one person in certain cases possesses SSL °^ detaining property placed in his possession be- longing to another, until some demand, which the former has, be satisfied. "(a) Nature This right of lien or retainer being frequently ' advanced as a defence in actions of trover, and as- sumpsit at law, and in suits in equity, for the reco- very of goods and money, has not improperly been assimilated to the right of set off; since these two rights are certainly so far analogous, that the effect of both is to prevent circuity of action, an incon- venience against which partial provision only was made by the common law in the allowance of the *3 former right. For the only case in which ^com- plete justice could be done at common law in the same suit, where the parlies to it had mutual de- mands which did not constitute an account between them, was that in which an action was brought to recover some specific property, which the law con- sidered as a pledge in the hands of the party from whom it was demanded; or, in other words, on which the party had a lien. In which case the owner was not allowed to recover the property without first discharging the debt for which it was :i security. In other cases a cross demand could ((/) Per firosc, J. Hammonds v. Barclay, 'J Cast, 235. and see opinion ot Buller, .1. in I.'n kbari'OW ;•. Mason, 6 East, '25. in notis, in which lie defines a lien to In- a qualified right which in given rases may be ex< <■ cised over the property of another. And Bee judgment of Lord Ellen- borough, Ch. .1 in Wilson v. BalfOqr, 2 Carripb. WJ in which he oh- irvi , " a li< n is a righl to hold " THE LAW OF LIEN. O not be advanced as a defence, but the party was compelled to have recourse to a separate action. To remedy this hardship the right of set off was Created by the legislature, at first indeed only in cases of bankruptcy, temporarily by 4 Ann. and subsequent statutes, and perpetually by 5 Geo. 2. c. 3. s. 28. by which it was enacted, that where mutual credit had been given, or mutual debts were due between the bankrupt and any other person before the bankruptcy, the account should be stated, and the balance only should be paid on either side. Afterwards, however, by 2 Geo. 2. c. 22. s. 13. and 8 Geo. 2 c. 24. s. 4. the right *of setting off was *4 given in all cases where mutual debts were due in the same right.(6) But though these rights of lien and set off fre- quently concur, and the benefit arising to the party from the exercise of them is sometimes the same ; they are by no means exactly similar with respect to either their extent, or their effect in the cases to which they do extend. With regard to their extent, a right of lien may be advanced as a defence in an action at law or proceeding in equity(c) for the recovery of specific goods or money. But the statutes for setting off (6) Green v. Farmer, 4 Burr. 2214. (c) In cases of liens on, or pledges of, personal property, courts of equity will determine exactly as a court of law would decide if an ac- tion of trover was brought for the property. Jones v. Smith, 2 Ves. jun. 378. And whatever may be set off in equity, on the ground of lien, may likev/ise be set off in an action of trover. Lempriere v. Pas- ley, 2 T. P. 491. And see Downman v. Matthews, Prec. Cha. 580 4< THE LAW OF LIEN. mutual debts have been holden not to extend t© goods, or other specific property, but only to pecu- niary demands on one side and the other.(d) Be- cause the possession of such specific property doe* not properly constitute a debtee) *The statutes relative to mutual credit, however, have received a more liberal construction, and the courts, taking into consideration the hardship of a person, who has in his possession, as a security, goods on which he has a lien for part of his debt, being obliged to relinquish them, without pre- viously having out of them all the satisfaction they can yield for the whole of his debt, have always in- clined to consider such cases as within the clause of mutual credit, wherever the circumstances have afforded an apportunity of considering the transac- tion as a matter of account ; or of implying, from the manner of dealing between the parties, an agreement, that the goods should be a security for the whole debt; and that the credit was given on that ground ; though there were no direct evidence of a positive agreement for that purpose.(/) (<0 Green v. Farmer, 4 Burr. 2218. (>•) Cullen, 209. (/) Exparte Deeze, 1 Atk. 228. Exparte Ockenden, 1 Atk. 235. There is another point in which the rights of set off and lien differ in their extent. A lien may be acquired for a demand against which the sta- tute of limitations has run ; for the operation of that statute discharges onlj thi nun, and docs not annul the debt; and therefore it hut 1" en del rtnined that if a creditor obtain possession of goods on wliu I. he has a lien for a g*< neral balance, he ma\ hold them l>v virtue of his lien, though thai general balance consists of debts barred by the ti rtley, 3 Esp. R. 81, But such debts cannot 1 be pleaded in bar to the action, the plaintiff may reply THE LAW OF LIEN. *6 *The difference between the several rights of f- lien and set off, in point of extent, being thus no- ticed, their different effects, in the cases to which they extend, is to be next considered. In cases of lien, the property on which it exists, being consi- dered as a pledge, may be detained, though it be of greater value than the debt on account of which it is withholden, until the whole of that debt is dis- charged. But in cases of set off, under 2 Geo. 2. c. 22. s. 23. and 8 Geo. 2. c. 24. s. 4. though the debt due to the defendant be larger than that he owes to the plaintiff, he can only set off as much of it as is equal to the sum for which he is sued, and is driven to a separate action for the recovery of the rest. On the other hand, in the case of lien, the property on which it is claimed cannot be re- tained after the debts, for which that property is considered a security, are paid; though other debts be still owing from the owner. *But in cases of set off all mutual debts due in the same right may be set off by the defendant to the amount of the debt for which he is sued. So that, although en- tire satisfaction to the claims of both parties may, under some circumstances, it cannot always be ob- tained in the same suit, either by the exercise of the right of lien, or of that of setting off mutual debts under 2 Geo. 2. c. 22. s. 13. and 3 Geo. 2. c. 24. s. 4. But the statute relating to mutual credit the statute of limitations. Remington v. Stevens, Str. 1271. Or if given in evidence on a notice of set off may be objected to at the trial, Bui. N. P. 180 4 THE LAW OF LIEN. admits of complete justice being done to both parties in the same suit, in every case to which it extends. For it provides, that the account shall be stated, and the balance paid, on which ever side it may be due, whether to the plaintiff or the defendant.* Different Having: stated thus much on the general nature species ° ~ and 01 i- of the right of lien, it will now be proper to explain liens. the modes in which it may arise, and the different species into which it is divided. Liens either ex- * 8 ist by common law, or are created by usage,(g) *or by express agreement ;(A) and they are by the law {g) But it can be created, it seems, by the usage of trade only, and where goods have been deposited in the nature of a pledge. 6 T. R. 263. Accordingly where a carpenter, who had worked for some time in the queen's yards, declined working there any longer, and the sur- veyor re- fined to let him take away his tools, giving in evidence, in an action of trover which was in consequence brought against him, an usage for the surveyors of the queen's yards to detain the tools of workmen in order to compel them to continue working until the queen's work should be finished. It was holden that the action lay ; and no regard was paid by Holt, Ch. J. before whom the cause was tried, to the usage insisted upon by way of defence. Baldwin v. Cole, 6 .Mod. 212. Bac. Ab. tit. Trover. Both the existence[l] and the ex- of liens by usage are matters of evidence But where such liens been very frequently proved to exist, it seems that the courts will consider their existence as settled law, and will not allow it to be afterwards disputed. Naylor v. Mangles, 1 Esp. 109. Spears v Hart- I Esp, 81. The mere opinion of. witnesses is, however, no evidence to prove such usage. Syedsv. Hay, 4 T. It. 269 (A) Bxparte Deeze, 1 Aik. 229. Exparte Ockendon, 1 Atk. 236. • 4 Burr. 22-21. per Urose, J. Kiikm.m v, Shawcvossj 6 r. K. 11. Naylor v. Mangles, l Esp. 109. * Th( i ■ oounl ■ tnaj be b danced i an ■< ion at law as well as before iei .. 2 Aik. 49. [1] 1 \ I. '_ • 2 : » Rrec. Cha. 580. 1 Esp. 109- Oppenheim v. Kus- fePul 42. THE L.\W OF LIEN. 3 distinguished into two species, namely, particular liens, and general liens : a particular lien is a right to retain the property of another on account of la- bour employed, or money expended on that *same * 9 property. A general hen is a right to retain the property of another on account of a general balance due from the owner.(i) The doctrine of liens having taken its rise upon principles of natural equity and commercial neces- sity, in the earliest period of its existence, we find only the first species, that of particular liens, allow- ed without an express contract ; and even that seems to have been admitted only in cases where the justice or necessity of the case peremptorily demanded its allowance ; as where the party was obliged by law to receive the ^oods(k) in respect of which he claimed the lien, or Avhere he had, at his own peril, labour, or expense, saved them from loss or destruction at sea : where the owner had abandoned, or was no longer able to protect them.(l) This right, however, which seems to have been first introduced merely on principles of justice and necessity, was afterwards extended to a far greater length, upon those of policy and convenience as well as of justice ; and not only were particular liens admitted in many more instances *than those * 10 already mentkmed,(m) but general liens were al- (/) Per Heath, J. 3 Bos. and Bull. 494. (A-) See post. Chap. II. (I) ' Hartford v. Jones, Ld, Rayni. 393. m) Post. Chap. II. 1& THE LAW OF LIEN. lowed to be claimed, by implication, from the general usage of trade, or the mode of dealing be- tween the parties, and without any express con- tract for that purpose. And thus, to the two modes in which liens might before subsist, namely, by common law, and by express contract, was added a third, by usage ; from whence is implied an agreement by which the goods are pledged for the payment of the debt.(w) This bias in favour of liens appears to have con- tinued for a long period.(o) But of late years, it has taken a different turn, and the courts seem to have thought that the doctrine has been carried full as far as true policy would warrant, and have therefore most strongly inclined against its further 11 cxtension.(p) Yet it should be remarked, *that whatever difference of opinion may at different pe- riods have been manifested with respect to the ex- tension of liens, in general, a wide distinction has generally^ been observed, between particular and general liens. The former have been regard- ed with a more favourable eye, as founded on the (n) Post. Chap. HI. The distinctions between liens by express con- tract, and linis from the nature of dealing, occurs first in ex parte 228. A. D. 1748. Montagu r B.L. 237. (o) Green v. Fanner, 4 Burr. 2221. Wilkins w. Carmicael, Doug. 97. Kirkman v. Bhawcross, G T. R. 14. Judgment of Chambre, J. in Rich- ard oi • Bi d Pul. 126. {}>) Ruahforth v. ftadfield, 7 East, 229. The courts will not now orl- i a lien v. ■ been allowed to exist, Hussey i ' , 426. (g) In Kirkman v. Bhawcross, 6T. R. 14. the court considered a gene- atural justice. THE LAW OF LIEN. 11 fiommon law, and the general principles of justice: while the latter have been looked upon with jea- lousy, being considered as encroachments on that law, and as founded solely in the usage, and per- mitted only for the benefit of trade.(Y) Having given this brief explanation of the na- ture, origin, and different species of lien, according to the most confined sense of that term, I will now state the arrangements *which I purpose to observe * 12 in the portion of this treatise which is dedicated to the consideration of liens. My intention is, first ; to lay before the reader the general rules of law, with regard to particular and general liens, under three heads of enquiry : namely, first, in what ca- ses these rights may be acquired ? 2dly. In what cases they cannot ? 3dly. By what means they may be divested ? And, then, to consider under distinct heads the lien of each particular diameter to which the law has specifically decided that right to be- long. The enquiry as to the cases in which the right of a particular lien may be acquired will form the subject of the next chapter. (r) Oppenheim v. Russell, 3 Bos. and Pul. 42. Houghton v. Matthews, 3 Bos. and Pul. 494. In the judgment of Rooke, J. Richardson v. Goss, 3 Bos. and Pul. 126. he says' " I think the doctrine of general liens is not to be favoured, because all persons who claim under them mus< have been guilty of neglect in suffering goods, upon which the law has given them a special lien, to go out of their hands, without indemnify ing themselves by setting up a claim to a genenl lien." *13 I HE LAW OF LI E.N. *CHAP. II. In what cases a particular lien may be acquired ; 1st By the common law ; Idly. By express contract ■, Sdly. By a delivery through persons to ivhom the property on ivhich the lien is claimed, does not be- long ; as servants, &c, PARTICULAR liens exist either, 1st. By the common law ; or 2dly, By express contract. The cases in which a particular lien may exist by the common 6 common law, are divisible into two classes. 1st. Where a particular lien is claimable by persons who come under the denomination of bailees. 2dly. Where it is claimable by persons who do not fall within that denomination. With respect to B y bai - the first of these classes, a notion seems to have been entertained, that a particular lien was the common right of all bailees for reward : and that where a debt accrued from the bailor to the bailee in consequence of the bailment, the latter might detain the thing bailed, until the debt was dis- ! i charged, without any special agreement to *that cflect-fffj But however consonant to equity or policy lliis might appear at first sight, as an uni- al rule, the application of it to mam cases aid certainly be attended with great inconve- '„) See Christian's Notes, 2 $1. Com. 453. THE LAW OF LIEN. 14 nience, as well as injustice ; and upon this ground, we find exceptions have been made to it in more than one instance. Thus in the case of Chapman v. Allen, Cro. Car. 271. it was determinded that a person who took cattle to agist could not detain them, against the person to whom the owner had sold them, for the value of their agistment. And it was laid down by Lord Holt, in the case of York v. Greenaugh, Ld. Raym. 866. and decided by Lord Kenyon, in the case of Hunter v. Berke- ley, Esp. Ni. Pri. 583. that a livery stable-keeper has no lien on the horses standing at livery in his stable for the price of their stabling and food. Another rule, less extensive than the preceding, with regard to the cases in which a particular lien may be claimed by bailees, has been expressly laid down in the case ex parte Deeze, 1 Atk. 228. and appears to have been taken for granted in *other cases ;(6) namely, that wherever goods are *15 delivered to a tradesman for the execution of the purposes of his trade upon them, he has a particu- lar lien on them. A third rule, however, still less extensive, but more certain than either of the pre- ceding, is that mentioned in the first chapter ; namely, that where the party is from the nature of (6) See ex parte Ockendon, 1 Atk. 236, and Houlditch r. Milne, S Esp. 85. where a coachmaker was allowed to have a particular lien, to which he could not be entitled by the common law, unless all trades have that lien by the common law ; because the trade of a coachmaker was not introduced into this country until after the reign of Queen Elizabeth. But see 7 East, 229. Lord Ellenborough, however, ap* pears there to be speaking only of general liens. 4 15 THE LAW OF LIEN. his occupation under a legal obligation to receive, and be at trouble or expense about the personal property of another, in every such case he is enti- tled to a particular lien on it : for there are certain trades and occupations, the public exercise of which the common law has considered indispensably ne- cessary to the general convenience of the commu- nity ; and has therefore obliged all persons who un- dertake to carry on such trades, to accept, as far as their means will admit, employment from every 16 individual *who offers it with a reasonable reward. And in recompense for the burden which it has thus imposed, the same law has allowed the trades- men a particular lien upon the thing delivered to him in the course of his business for the labour or expense he is obliged to employ upon it.(c) On this ground, common carriers,(d) innkeepers,(e) and farriers,(/) have a particular lien by the com- mon law. To what other trades the obligation of accepting employment from all persons indiscrimi- nately extends, does not appear to have been ever precisely determined. The rule laid down by Lord Holt, in Lane v. Cotton, 12 Mod. 484. Ld. Raym. 646. S. C. is, that wherever any subject (() it was said by Ryder, Ch. J. delivering the opinion of the court in Brennant v Current, T. 28 & 29 Geo. 2. B. R. MSS. cited Selw. N. P. . thai tie had ao4 found it laid down us a general rule, that the re- • ;• was co-extensive with the obligation to receh Hu1 i,1 Bsp. R. 109. (,/, Vorfci I renaugh, Ld. Raymond, 867 ; Kirkmanv Shawcro I" R. 17; Dppenheim v. Russel, 8. Bos. & Pul. \i. I ■ cited tnnot< d and Naylor v. Mangles, 1 Esp< 109. (y*) b& Bat kb til Trover, and post lien oi fai THE LAW OF LIEN. *17 takes upon himself *a public employment for the benefit of his fellow subjects, he is eo ipso bound to serve the subject in all things that are within the reach and comprehension of that employment. It has however been determined that a carpenter is under no such obligation. And though the last of the three rules which have been stated in this chapter, with regard to the particular lien of bailees, (namely, that wherever a party is compellable by law to receive goods, he is by the same law enti- tled to a lien upon them,) appears to be the most certain ; the second, that a particular lien is the common right of all trades, may be correct,^) *as * 13 (3) As this rule, however, may appear rather vague and uncertain, wherever it hx-> been expressly decided that any particular trade is en- titled to this sort of lien, by the common law, it will be specified under the head of that trade: And as there are some other cases besides those mentioned in the text, in which it has been expressly decided that no particular lien, and some in which (though there is no express decision concerning them) from dicta and observations of the judges it remains uncertain whether any particular lien exists, and any of which it would be improper to pass over without notice ; I shall here specify them : they consist in certain cases of lien on ships For though both by the civil laws of the Roman empire, and the maritime laws of Eu- rope,(l) the principles of which have always in great measure governed the proceedings of our courts of admiralty,(2) every person who has incurred expense, or employed labour, in fitting out, supplying or re- pairing ; and by the latter des cription of laws, every person who has earned wages in navigating(S) a ship, is allowed a lien or specific re- medy in rem, for his remuneration,(4) though no instrument or express agreement be made for that purpose. In this country it is only in par- ticular cases that the common law permits that lien to be carried into (1) Dom. Civil Law, B 3. tit. 1. s. 5. Abbot on Ship 133, S (2) 3 Bla. Com. 69 (3) Abbot, 458. (4) Abbot, 134. 18 THE LAW OF LIEN. there does not appear to be any determination ex~ 19 pressly against it, and as it may *be collected from effect by process in the court of admiralty, and these are where the demand arises for repairs done or necessaries supplied in a foreign port,(5) or for the wages of seamen and officers beneath the rank of a captain or master ; though the contract for such wages be made on land, provided it be in the usual terms, and not by writing under seal. But the captain who has a demand for wages. (6) and the tradesmen who have demands for necessaries furnished, or repairs done to the ship(7) in this country, are confined to their remedy at common law. And there do not appear to be any cases in which it is expressly de- cided that a right of lien exists on a ship by the common law except (5) Where the necessaries are furnished, or the repairs done during the course of the voyage at sea, or in a foreign port, the cap Lain or master is not only at liberty to give the person furnishing such neces- saries or doing such repairs, a lien upon the ship, 3 Mod. 244 1 Ld, fcaym. 152. 2 Ld. Raym. 982. S T. R. 267. or freight, Abbot, 144. by an express hypothecation ; but in every contract made under such chcum- stances the maritime law will imply an hypothecation, 2 Ld. Ravm. 805. and the vesssel may be proceeded against in the court of admi- ralty without any danger of a prohibition from the courts of common law. But though the master or captain of a ship may give others a spe- cific remedy against the ship itself by employing diem to furnish it with necessaries or repairs hi the course of the voyage, he cannot ac- quire alien on the ship himself for any advances he may make for the owners, or for any repairs done at his expense abruad, though they be absolutely necessary to the preservation of the ship. Husscy v. Chris- tie, 9 East, 426. 13 Ves. jun. 434. And it seems he has no lien for ne- cessaries or repairs done at home at his expense, noug. 979. East, 4S3. But if he pays for such repairs after the bankruptcy of the owners, and demand made by the assignees, and after possession of the ship lias been relinquished both by himself and the party furnishing 1 the repairs or necessaries, he certainly has no lien. Doug. 97. (6) The indulgence which the law allows to all the mariners and officers below the rank of captain or master, of proceeding against the ship itself for their wages, in the court of admiralty, is refused to the in or master, upon tlie ground that he contracts individual!} with iwners, and trusts to their personal ci edit, and not to that of the ! Ld. Baym. 576. 632. Doug. 101. and sec 2 P. Wins. 367. contra' ■ Ibbot, li4 1HE LAW OF LIE\~. 19 several decisions that the right of retainer by the common law, *is not now confined to those trades, * 2© the case of salvage. For though in the case of Rich v. Coe, Cowp. 636. Lord Mansfield, in delivering the judgment of the court, lays it down that whoever supplies a ship with necessaries has a treble security : 1st. The person of the master ; 2d. The specif c ship ; and 3d. The per- sonal security of the owners : and though in Farmer v. Davies, IT. It. 109. his lordship repeats the same doctrine ; these two dicta of Lord Mansfield are not only unsupported as far as I can discover by anv other decision in dictum, except that of Lord Kenvon in Whiter. Bar- ing, 4 Esp. R. 22. at nisi prius (and in which case a new trial was granted, on the ground of a mistake of the judge in point of law, but neve had the cause been settled.) But the correctness of them is doubted by Lord Kenyon himself, in Westerdell v. Dale, 7 T. R. 312. ani they are contradicted by the tenor of almost all the other deci- sions upon this subject. Mr. Abbot, however, in his excellent Trea- tise on the Law relative to Merchant Sl.ips and Seamen, though he doc;, not allow the doctrine of Lord Mansfield in the cases of Rich v. Coe, and Farmer v. Davies, to be law, to the full extent it is there laid down, nor admit that the law of England has adopted the rule of the civil law with regard to repairs and necessaries furnished here in Eng- land ; yet seems to think, that a lien may exist on a ship, at least in one instance, by the common law. See part 2. chap. III. sect. 9. page 135. where it is said, " a shipwright indeed xoho lias taken a ship into his otim possession to repair it, may not be bound to part ivith possession, until he is paid for the repairs, any more than a taylor or smith, or any other arti- ficer, in regard to the object of Ms particular trade. But a shipwright who has once parted with possession of the ship, or has worked upon it without taking possession, and a tradesman who has provided ropes, sails, provisions, or other necessaries, are not by the law of England preferred to other creditors, nor have any particular lien upon the ship itself, for the recovery of their demands." Mr. Abbot has not supplied us with any authorities in support of the opinion expressed in the for- mer part of the passage here cited ; nor can any, I believe, be adduced which directly confirm it. But from the reason given by Lord Chancel- lor Hardwicke, in ex parte Shank, 1 Atk 234. why the shipwright in that case had no lien on the ship for repairs, namely, because lie had parted with possession ; it may be implied that his lordship was of opion, that where the shipwright had not parted with possession, he might claim a lien. And if the rule laid down by the same Lord Chan- cellor, in the preceding case, ex parte Deeze, that all tradesmen hay. k 2\ THE LAW OF LIEN. in which there is an obligation to receive *thc goods ; though the right was most probably origi- * 22 nally founded upon that Obligation. For dyers have certainly the option of receiving or refusing goods from any one who may send them for the pur- pose of being dyed ; and yet it seems to be ad- mitted, in the cases of Kirkman v. Showcross, 6 T. R. 14. and Close v. Waterhouse, cited 6 East, 523. note,(e) that they have a particular lien on all goods they do receive for that purpose. Nor does there appear to be any case in which it is decided that, taylors are bound to accept employment from any one that offers it ; but whether they are or are not under such an obligation, it is clear that they have a particular lien by the common law upon the cloth placed in their hands for the execution of the pur- poses of their trade. By per- 2dlv. AVe are to inquire in what cases a parti- not • 11.11 in bailees, cular hen may be claimed by persons who do not come under the denomination of bailees ; and a twofold division may likewise be made of this i particular lien on goods for work done to llicm in the course of their respective trades,-be correct, a shipwright certainly has a lien upon a ship for repairs done to il in this country. But this rule, it is to be observed, does not appear very certain ; and in Wilkins t>. Carmichael, 97. Lord Mansfield himself seems to doubt the existence of the carpenter's lien for repairs done to the ship. It may seem also incon- ■t with commercial policy, that the detention of a whole ship should be allowed for a debl perhaps comparatively trifling. The argument, however, does not apply against a ship builder's hav- ing :< lien on the :;liip while it remains in his possession; for die price of building it; to which he must be entitled in common with other orsofgood 8( post. Lienof Vendor, and Daniel v. Russell, 1" THE LAW OF LIEN. 22 part of the subject; 1st, Where the goods come into the possession of the party by finding, and he has been at some trouble or expense about them. And, 2d, Where the goods have been taken posses- sion of under some *legal right, and expense ne- * 23 cessarily incurred for their preservation. As to the first division, whenever any one has, where at his own labour, risque, or expense, preserved come in- the property of another from loss at sea, when the posses- owner, or those entrusted with the care of it, had JjJJ °^ abandoned, or were no longer able to protect it, he *y cla ™ _ is entitled by the common law to retain the pro- lien by 1 .11 j t finding'. perty saved, till a just compensation be made to him for the trouble, peril or expense, he may have incurred.(/i) The principles *upon which this pri- * 24 (A) Hartford v. Jones, 1 Ld. Raym. 393. Abbot on Ship. 383. and see Hamilton v. Davis, 5 Burr. 2732. Baring -v. Day, 8 East, 57. This right of lien for salvage appears to have been also recognized by the statutes which have at different periods been passed respecting wrecks and salvage. The 27 Ed. 3. stat. 2. c. 13. provides, that goods cast away, and not coming under the denomination of wrecks, shall be de- livered up by the salvers to the owner; the latter paying the former a proper compensation for their trouble. But the most important provisions with relation to this subject are, 12, Ann. stat. 2. c. 13. 26 Geo. 2. c. 19. ' Geo. 3. c. 130. s. 21. and 49 Geo. 3. c 122. s. 32. for wherever the assistance is given, and die salvage effected, in consequence of an application by the master or chief officer to any of the public officers appointed by thes the purpose of affording such assist- ance, the salvors acting under such officers cannot claim any lien o'r t detaining rty by the common law, but must resort to the remedy afforded by those statutes on such occasions. And when- ever an adjustment of the salvage has been made according to the pro- of those statutes, and the sum awarded tendered, no lien can be claimed for any further salvage. The 12 Ann. stat. 2. c. 18. it should be observed, extended only to cases where the services of the salvor are lied by virtue of it< provisions through the medium of the public 24 THE LAW OF LIEN. vilege is allowed, are those of public policy and commercial necessity ; but it is confined to cases in which the property is saved from loss at sea; for if every man who finds the property of another, which happens to have been lost or mi?laid, and *25 voluntarily puts himself to *some trouble or ex- pense to preserve the thing, and to find out the owner, were to have a lien upon it for the casual, fluctuating, and uncertain amount, which he might reasonably deserve to have, great inconvenience would ensue. The owners of some kinds of pro- perty would have not only the common accidents from the carelessness of their servants to guard against, but also the wilful sttempts of ill-designing people to turn such property loose, in order that they might be paid for the finding it. And even where the property had been really lost, the owners in seeking to recover it from the finder in an action of trover, would be placed in a very awkward situa- afficers therein named ; and in the case of Baring- r. Bay, 8 East, 5~ where the application for assistance was made by the commanding' offi- cer of the stranded vessel, not to ihc custom-house officer, but to a stranger, and the salvage was effected by his means, under the inspec- tion, indeed, of two officers of the customs, but without their taking 1 any part in it, except so far as was necessary to secure the duties due to the crown ; it was decided to he a case not within the intent of the BtatUte. And the 26 Geo. ;'>. c. 19. S. 5. applies only to the cases of vo- luntary salvors, to which it extends the regulations of the 12 Ann. st. 2. c. 13. as to the mode of adjusting and recovering the quantum of talvagft But by 48 Geo 3. c. 1-50. s. 21. and by 49 Geo. 3. c. 122. s. J the same regulations are extended to the cases of persons acting under the authority of Ihc owners and commanders of the ships saved ; and furtht r provisions are made with respect to the mode of adjusting THE LAW OF LIEN. 25 don, if they were obliged at their peril to make a tender of a sufficient recompence, before they brought the action ; for such owners must always pay too much, because they can have no means of knowing exactly how much will be considered suffi- cient. And though there are cases, in which it is necessary that the owner of the property should Submit to this inconvenience, it is more fit, in ge- neral, that he who claims the reward, should take Upon himself the burden of proving the nature of the service he has performed, and the quantum of the recompence which he demands; instead of ""throwing it upon the owner to estimate it for him, * 26 at the hazard of being nonsuited in an action of trover. For these reasons in every case (excepting that of the salvage of goods at sea) in which the finder of property lost has claimed a lien upon it for the expense or trouble he has voluntarily in- curred about it, the claim has been disallowed, and the owner has recovered without satisfying it-O') 2dly. With respect to the second division of this where head ; where the goods have been taken posses- goodsare sion of under some legal right, and expense neces- ^2s- sarily incurred for their preservation; onlv two sio " of J . under cases appear to have occurred which may be pro- s °me ie- perly classed under it. These are where the lord S * S of a manor seized a beast as an estray, and was at the expense of keeping it for some time after he (i) Nicholson v. Chapman, 2 II Bla. 254. Binstead v. Back, 2 Bla. R. 1117 2d the law or LIEN. had proclaimed it ; and the owner, within a year and a day after the proclamation, came and de- manded it, and upon the lord refusing to deliver it, brought trover, without having first tendered a sa- *21 tisfaction for the keeping of iU(k) *for want of which it was holden that the action would not lie. And where an horse was distrained to compel an appearance in an hundred court ; and it was deter- mined, that, after appearance, the plaintiff could not justify detaining the horse until his keep was paid for.f I) B ? ex - 2dly. As to the cases in which a particular lien press J * contract. m ay exist by express contract. This right may be created in any case, where the parties chuse expressly to stipulate for it,(?w) which is generally, either where goods are placed in the hands of a person for the execution of some particular pur- pose upon them, with an express contract that they shall be considered as a pledge for the labour or expense the execution of that purpose may occa- sion ; or where property is merely pawned or deli- *28 vered for bare custody to another for the *sole pur- (k) Taylor «, James, 2 Rol. Ab. 92. (m.) pi, 3. Bac. Ab. Trover BuL N. P. 45. S. C But according to the decision of Henley v. Welch* Oalk. 686. 11 Mod. 89. S. C unless the lord makes a demand of certaif amends, a general tender of amends will be sufficient. A distinction being there made between the case of an owner of an estray, and that of an owner of cattle damage feasant, the latter being - considered ft wrong-doer, and the former not so. (1) Lcnton v. Cook, H. 9 Geo. 2. Bui. N. P. 45. (w») Chapman «, Allen, Cro Car. 271 And sec Kirkman V. Shaw ■ -.ross, 6 T R. 14. THE LAW OF LIEN. 28 pose of being a security for a loan made to the owner on the credit of it. 3dly. Are to be considered the cases in which Through ' persons a particular lien may be acquired through persons to whom to whom the property on which it is claimed does perty not belong, as servants, &c. Particular liens may belong. be derived through the acts of servants or agents JJ^ acting within the scope of their employments. As, &c if a servant deliver cloth to a taylor to make his master's liveries ; the taylor will have a lien upon the cloth for the value of the work done upon it.(w) And wherever a person, who delivers property which does not belong to him to another for the execution of the purposes of the other's trade upon it, is invested by the owner with the right or au- thority to dispose of the property in that way, the person to whom it is delivered shall not be defeat- ed of the particular lien which the common law allows him for the trouble or expense he may have incurred about that property, by the owner's co- ming forward and claiming it.(o) Where, too, a person *in whose hands the property of another is * 29 placed for the execution of the purposes of his trade upon it, by an agent who has a power from the owner of disposing of it for those purposes, but none of raising money upon the credit of it, ad- vances money or gives acceptance on the credit of (w) Per Lord Ellenborough, delivering the opinion of the court in Husscy v. Christie, 9 East, 433. (o) Richardson v. Goss, 3 Bos. & Pal. 1 19. Pultney v. Keymer, 3 Esp. 182, D. Grose, J. delivering the judgment of the court, in Hammond ".< Barclay, 2 East, 237. and see post, Lien of Insurance Broker, note 29 THE LAW OP LIEN. that property to the agent, and is ignorant, at the time of the receipt of it, that ti e latter is not the real owner; he may retain it against the real owner, until he is paid the money so advanced, or indem- nified against the liability to which he has so sub- jected himself.(j?) And if a person advances money, or gives ac- ceptances upon the faith of a consignment of goods to him for the execution of the purposes of his trade upon them ; but before the goods arrive in his bands, the property in them is transferred from the consignor to a third person, who is not able to pountern and them before they come into the pos- session of the consignee, it seems that the latter may retain them against such third person, for any sum he may have advanced, or for which he may 30 *have made himself liable upon the credit of them, as well as for the expense or trouble he may have incurred in the execution of the purposes of his trade upon them.(g') (p) Ante, note (o.) (?) Richardson v. Goss, 3 Bos. & Pul. IIP THE LAW OF LIEN. *3l *CHAP. III. In what cases a general lien may be acquired. 1st. By the general usage of trade ; 2d. By the par- ticular usage of the parties ; 3d. By express agree- ment ; $>th. Through persons to ivhom the pro- perty on which the lien is claimed, does not belong, as servants, &c. THE right to a general lien can exist only by the general usage of trade, by the particular usage of the parties, or by express agreement. 1st. With Bytiit respect to the cases in which a general lien may usage of be acquired by the general usage of trade : that usage is presumed to have been founded on con- tracts repeated so frequently, and so notorious, that every body must be considered as bound to take notice of \i.(a) And it is clear, that an usage of any trade, for the persons who -carry it on, to have a lien for their general balance, so general, uni- form, and frequent, as to warrant an inference, that the party, against whom the right is claimed, had knowledge of it, and contracted *with refer- * 32 ence to it, will be sufficient to establish such a Y\(m.(b) But as general liens are considered COn- fa) Per Rooke, J Oppenheim v. Russel, 3 Bos. and Pul. 50. (b) It seems, that the lien for a genera] balance, which the usage of certain trades entitles those who exercise them to claim, is generally 32 IHE LAW OF LIEN. trary to the policy of the common law, and to pub lie convenience, and an infringement upon the system of the bankrupt laws, (the object of which is, to distribute the debtor's estate proportionally amongst all the creditors :) to establish a claim to such a lien upon the ground of the general usage of any trade, strong evidence would be required of the frequency and notoriety of the usage. And in cases where the party Maiming the lien is, from the nature of his trade, under a legal obliga- tion to accept employment from any one who offers it, and for that reason, has a right to a par- ticular lien upon property entrusted to him m the course of his trade ; the evidence of any usage for the extension of that lien to a lien for his general balance, ought to be proved by still stronger evi- dence than is necessary in cases where no such obligation exists. For in the latter cases, though the introduction of general liens may be against the public convenience, and contrary to the spirit of the bankrupt laws ; it does not directly infringe confined to such general balance as arises from work done in the aourse >f those trade:; ; and does not extend to money lent, as any collateral matter. But from the case, ex parte Deeze, 1 Atfc. 228. where the general balance of a packer was allowed to extend to money lent upon a'not^, on evidence that it was usual for packers to lend money to rlothiers, and for the cloths to be a pledge, not only for the packing work done, but for the loan of money. It may appear, that a lien for a general balance, no1 arising from work done or expense incurred in the coufae of the trade, but from matters foreign to it, might be established by usage . It should, however, be observed, that a packer is considered to be in the nature of a factor; Green v. Farmer, 1 Bla. Rep. 651. and that it is a part of a factor's business to advance money to his ein ploj ' THE LAW OF LIEN. 33 upon the common law-right of the subject. But in the former, the tradesman alters his situation, by encroaching upon the right which every subject possesses, of compelling him to receive goods for the purposes of his trade, without annexing any condition for a general lien, and which right the subject cannot be presumed to have given up but upon very strong evidence.(c) Accordingly, where a common carrier attempted to set up a lien for his general balance, upon proof of one instance of the exercise of the right by a person engaged in the *same trade, so far back as thirty years, accom- *34 panied by many other instances, but which were either attended by circumstances which might have rendered it not worth the parties while, against whom they were exercised, to dispute the claim, or had taken place within a recent period, and were not brought home to the knowledge of the person against whom the lien, in the present instance, was claimed. The jury having nega- tived the usage upon this evidence, the court re- fused to grant a new tfm\.(d) But when a general lien has been frequently proved, and allowed to exist by the usage of any particular trade, the courts will not permit the nght to be afterwards disputed.(e) It is therefore, row unquestionable, that factors, packers, wharf- (c) Kirkman v. Shawcross, 6 T. T. 14 ; Oppenheim v. Russel, 3 Bos anA Pul. 42. (d) Rushforth v. Hadfield, 6 East, 519. 7 East, 224, ( THE LAW OF LIEN. ingers, calico printers, and in one place, fullers, have, by the custom of their respective trades, a lien upon the property of their employers entrusted to them in the course of their trade, not only for debts arising in the execution of the purpose for which the property was delivered, but for any gene- * 35 ral balance due *from their employers in the course of their trade. It is likewise clearly established, that insurance brokers have a lien upon all policies, and bankers upon all paper securities, and attornies upon all papers in their possession belonging to their employers, for the general balance of their accounts.QQ On the other hand, it is Clearly settled, that millers and dyers(g) have no lien for their general balance by the customs of their respective trades. But it has not yet been generally found (though in one particular instance it was so determined) that carriers have no such lien.(/i) lhe 2dly. With respect to the cases in which a gene- puriicu- ra i \[ en mav be claimed by the particular usage of of the the parties. It is open to any person to establish his claim to a lien for his general balance, upon the ground of particular usage, or previous mode of dealing between him and the party from whom he claims it. And proof of their having before deall upon the footing of such a lien will be presumptive evidence, that they continued to deal upon the (/) Sec post, the liens of those several characters. df) Bee post, Liens of millers mid dyers. (h) Judgment of Lawrence, .1 Rushfortb v. Hadfield, 7 East, 23G THE LAW OF LIENT. *36 game *terms.(i) The circumstances of a person's procuring a loan from another who is already in possession of some of the former's property, as a security for a prior loan, seems to be evidence that the parties intended that the property should be a pledge for the whole debt.(A:) odly. As to the cases in which a general lien pres y s e * may be acquired by express agreement. Any J*^ person, whatever may be the description of the trade or occupation he exercises, may acquire a lien for his general balance, by an agreement which has the express assent of the customer from whom he claims it. And if a number of tradesmen, not compellable by law to receive goods for the purposes of their trade, enter into an agree- ment among themselves not to receive any goods to be manufactured in the course of their trade, unless upon condition that they shall have a lien upon such goods, not only for the debts accruing from the work performed upon those particular goods, but also for any general balance which may be due to them for work of the same kind per- formed upon *other goods, which have been al- *3" ready delivered out of their possession, such agree- ment is good in law, and obligatory upon any per- son who, after notice of it, delivers goods to either (i) Downman v. Matthews, Prec. Cha. 580. cited ex parte OckendeiK 1 Atk. 235. Per Grose, J Kirkman v. Shawcross, 6 T. R. 19. (k) Demainbray v. Metcalf, 2 Vern. 691. 698. -37 iHE LAW OF LIEN, of these tradesmen for the execution of the pur- poses of his trade upon them.(/) So likewise any individual who exercises a trade, in which he has the option of either accepting or re- fusing employment from any one who offers it, may by publishing an express declaration that he will not receive any property for the purposes of his trade, but upon condition that he shall have a lien upon it for the general balance of his account, ac- quire a right to such lien against any employer, whom he can prove to have had previous notice of that declaration.(m) But in cases where the tradesman is from the nature of his trade under an obligation to accept employment at all events, he cannot, it seems, im- pose a condition that he shall have a lien for his general balance upon his customers by declara- 38 tions or notices of this nature, or acquire *that right by any agreement which has not the express assent of the party against whom he claims it. And therefore it appears, that neither common car- riers, inn-keepers or farriers, can claim a lien for their general balances in consequence of notices given by them, *iey will not receive goods without a general lien.(n) (l) Kirkman -v. Shawcross, 6 T. R. 14. and see Oppenheim v. RusseL, , Bos. and Pul. 42. (m) Sec judgments of Lord Kenyon, Cli. J. and Lawrence, J. Kirkman ShiiwcrnsK, 6 T. R. 14. (n) Bee < :isrs filed note(/). THE LAW OF LIEN, 38 4thly. It remains to be enquired, in what cases Through a general lien may be acquired through persons to to whom whom the property on which it is claimed, does perty™ not belong ; and it is clear, that general as well as J, 1 ^ " ot particular liens may be acquired on property by as ser - the receipt of it from servants or agents of the &c owner, acting within the scope of their employ- ments.^) \o) See post, lien of insurance broker, cases collected in ltetis *39 THE LAW OF LIE>: *CHAP. IV. In what cases liens cannot be acquired. 1st. In ichai cases no general lien can be acquired y though a particular lien may exist ; 2d. In what cases no sort of lien can be acquired. In what cases no general lien can be acquired, though a particular lien may exist 1. WHERE a person in pursuance of the direc- tions and authority of the owner of property, deli- vers it to a tradesman for the execution of the pur- poses of his trade upon it, the tradesman to whom it is so delivered, shall not have any lien upon it against the owner for a general balance due to him from the person who delivered it on the latter's own account, if the tradesman was informed, at the time he received the property, that it did not be- 40 long to such person.(a) In conformity *to this rule (a) Muans v. Henderson, 1 East, 335. Man v. Sluffner, 2 East, 523. Snook v. Davidson, 2 Camp. 218. Upon this principle in the case of Good v.Jones, Peake's 0. N. P. 176. where the plaintiff being a grazier in the country, employed a salesman to sell some oxen for him in Smithfield market, and the salesman employed the defendant as his l)i)ok ! ho acted in that capacity for several others, and whose business appeared to be to receive the money from the purchaser, and Co keep an account of the beasts sold, distinguishing what each beast "lil for, and to whom it belonged, and to pay the money over to the ctivi owners, upon receiving an order to that effect from the m&n [t was decided, that the defendant cowld not retain the THE LAW OF LIEN. 40 it has been decided that a carrier, who by the usage of his trade is to be paid for the carriage of goods by the consignors, has no right to retain them against the consignee for a general balance due to him from the consignor, for the carriage of other goods of the same sort : for the goods became the property of the consignee from the moment of the delivery to the carrier, and therefore could not be liable under any agreement between the latter and a third person.(6) And if the owner of goods con- signs *them to a tradesman for the execution of *41 the purposes of his trade upon them, but before they arrive in the hands of the tradesman the pro- perty is transferred by the owner to a third person, who is not able to countermand them, till after they are come into the possession of the tradesman, the latter cannot retain them against such third person, for a general balance due to him from the con- signor, in other accounts : accordingly, where a contract for the sale of goods was rescinded, and the property retransferred from the vendee to the vendor, while the goods were in transitu, but be- fore they could be stopped by the vendor, were de- livered at a wharf and received by the wharfinger pursuant to an order which the vendee had given money for the plaintiff's oxen from him, on the ground of a balance due from the salesman to the defendant. Upon the same principle too, in the case of Grey v. Cockerill, 2 Atk. 114. it was determined, that a clerk in court who lends money to a solicitor to carry on a cause, is not entitled on that account to detain the client's papers as a pledge. The decision of Lanyon v. Blanchard, 2 Camp. 597. seems to cany tin-. principle still further ; see post, lien of insurance broker, notis, (b) Butler v. Woolcott. 2N,B 64 41 THE LAW OF LlEiV before the contract was rescinded, and not coun- termanded ; afterwards, it not appearing that the wharfinger had advanced money, or accepted bills for the vendee on the credit of the consignment of the goods to him, it was determined that he could not retain them against the vendor for a general balance due to him from the vendee, but only for the charges or expenses incident to those particu- lar goods, (c) 42 *2. No claim to a general lien canbe maintained, where it would contravene or interfere with the prior common law right of another, not claiming under the person from whom the right to the ge- neral lien is derived. Thus the right of the con- signor of goods to stop them in transitu upon the insolvency of the consignee, being considered a common law right, and, therefore, paramount to that of the carrier to retain for his general balance, which can be founded only on special custom ; it has been determined, that an usage for a carrier to retain goods for the general balance of account between him and the consignee, cannot in any case affect the consignor's right to stop the goods in transitu ; which the latter may exercise at any time, before the consignee has acquired complete dominion over the goods, upon paying the carrier for the carriage only of those particular goods.(o) 2. In what cases no sort of lien can be acquired. 1. In cases in which the disability arises in the (loss, J Bos. and Pol. U9. (b)Oppenhcim v. Russel, -i Bos. &. Pul. 42 THE LAW OF LIEN. 42 conduct of the party claiming the lien. 2. Cases in which the disability arises from the want of power to dispose of the property in which the lien %s claimed * 43 in the party ivho gives possession of it. 3. Where possession is not sufficiently given to the party claim- ing the lien of the property on which it is claimed. Cases in which the disability arises in the conduct of the party claiming the lien. 1. The law will not suffer a lien to be acquired in any case by the wrongful act of the party claim- ing it. And, therefore, where one person pays the freight or other charges of goods belonging to ano- ther, in order to obtain wrongful possession of them, he cannot detain them against the right owner till he is indemnified for those expenses. (e) 2. No lien can be acquired by the misrepresenta- tion of the party claiming it, and if any one ob- tains possession of another's property by such means, he cannot retain it against the owner, al- though under the circumstances, he would have had a lien upon it, if he had gained the possession of it fairly.(/) But though a lien cannot be crea- ted in the first instance by misrepresentation, yet having been once fairly acquired, and lost by the possession *being afterwards relinquished, it may, *u under some circumstances, be revived by regain- ing possession of the property on which it existed, even under a false pretence.(g) («) Len-priere v. Pasley, 2 T. R. 485. (/) Madden v. Kempster, 1 Campb. 12 (?) Whitehead v. Vaughan, Cooke's B. L. SG6. 44 THE LAW OF LIEN. S. A lien cannot be acquired by the voluntary and unauthorized act of the party claiming it. And, therefore, if a man, having the goods of ano- ther in his possession, voluntarily, and without any authority from the owner for so doing, defrays any charges, or is at any expense or trouble concerning them, he cannot on that account retain them 45 against the owner.(/i) And this *rule holds, (ex- W(h) Stone v.Lingwood, 1 Str. 651. The facts of this case were these the plaintiff, being the master of a ship, had brought home a small quantity of elephants' teeth on his own account, and a large parcel on the account of the defendant, who was the owner of the ship. The de- fendant entered both parcels at the custom-house, and paid the duty for them both, and both were delivered to him. Upon his refusing to deliver to the plaintiff his parcel, an action of trover was brought by the latter; and the question was, whether the plaintiff, having neither paid nor tendered his part of the duty, could support the action ? And it was ruled he could And by Eyre, Ch. J, the defendant bad no right to detain the plaintiff's parcel, notwithstanding the money paid by him as a duty for it, was neither paid nor tendered to him, because he might have brought an action for the money, or then have given evidence of the money paid, when it mig-lit have been deducted out of the plaintiff's damages. And the reporter adds, that the latter was done. Both the reasons assigned here by Chief Justice Eyre, as the ground of the deci- sion are clearly insufficient, for it is unquestionable that alien exists in many casts, where an action might be maintained for the same debt. A carrier, who has undoubtedly a right to detain goods, unless the money due for the carriage of them is paid or tendered, may waive this right, and bring an action for the money. And if an action of tro- ver hi brought against him for refusing to deliver the goods, the mo- ney dm -for 1 lie- carriage of them may be deducted out of the plaintiff's damages. Tn the argument of Green v. Farmer, 4 Burr. 2218. lord Mansfield lie decision itself not to be law. Hut though the ons alleged as its foundation are clearly insufficient, the decision itself dors n. >t appear to have been questioned in any other instance; and in principle il appeal's to be strongly supported by the rules laid down in the Lat< decisions of Exall v. Partridge,' 8 T. R. 310. and Child M irl< y, 8T. It. 610. with regard to voluntary payments, in which it i l THE LAW OF LIEN. 45 cept in cases where the property is saved from loss at sea, though the possession ot the pro- perty be taken, and the trouble or expense incurred about it, for the purpose of preserving it for the owner, where it has been lost by him. Thus where in trover for a dog, the defendant justified the detaining him on the *ground that the dog had *46 strayed casually to his house, and he had kept him there for the space of twenty weeks, and demand- ed the expense of his keep ; on a case made whe- ther the refusal to deliver up the dog amounted to a conversion of it, the defendant's counsel de- clined arguing the question, and the plaintiff re- covered.^") And where a quantity of timber which had been placed in a dock on the river Thames, and the ropes by which it was confined, had loosened ; in consequence of which it floated down the river, and was left by the tide in the towing path, where it was found by the defendant, and conveyed by him to a place of safety for the owner. It was adjudged, that the defendant could claim no lien on the timber for the expenses incurred in remo- ving and taking care of it, but was bound to deli- ver it to the owner.(A') frilly admitted that no action can be maintained for money paid on be- half of another, voluntarily and without his authority. (t) Binstead v. Buck, 2 Bla. R. 1117. (k) Nicholson v. Chapman, 2 H. Blu. 254. But it seems to have been the opinion of the eourt, that the expenses might have been recovered by action, which (if any could have been maintained) must have been ^nmnsit- 46 THE LAW OF LIEN. And this rule holds, too, though the property be taken possession of under legal process, and the ■47 expense incurred be *necessary to the preservation of it. Thus if a horse be distrained to compel an appearance in a hundred court, after the appear- ance the person who took the horse cannot justify detaining it, until he is paid for its keep.(Z) 4. No lien can be acquired, where the party claiming it has entered into a special agreement, which shows that he relied only on the personal 48 credit of his employer \(m) ^whether the lien to (0 Lenton v. Cook, H. 9 Geo. 2- Bui. N. P. 45. (m) Y. B. 5 Ed. 4. fol. 2. 17 Ed. 4. fol. 1. 2 Rol. Abr. 92. (m) pi. 2. 6 Yelv. 66. Collins v. Ongley, cited Brennan v. Currint, Selw. N. I\ 1289. Saver, It. 224. Bui. N. P. 45. S. C. Weymouth v. Boyer, 5 Ves. jun. 416. and see Yorke v. Greenaugh, 2 Ld. Raym. 867. Bac. Abr. Trover, p. 696. Upon the same principle hi equity the circumstance cf another security having been taken and relied on by the vendor of a real estate, may be evidence of his having relinquished his lien upoi. the estate sold. Mackreth v. Symons, 15 Ves. jun. 329. And where a specific chattel is deposited with a person upon a special trust, and under an express agreement by the depositary to restore it after the expiration of a limited period, and where from its nature no adequate compensation can be obtained for it in damages, and an action at lav. Would be ineffectual, a court of equity will compel the depositary t« deliver it up in specie after the expiration of the trust. Fells v. Read, 3 Ves. jun 70. In Cowell v. Simpson, 16 Ves. jun. 279. Lord Eldon states it to be his opinion, that the true principle upon which the law considers the taking a security, as a waiver of the lien is not regulated by the usage of trade, nor consists in the mere rule of law, that the special contract determines the implied one ; but in the inconvenience wi.ich would result, (the necessities of mankind requiring that the. goods should be delivered for consumption,) from the extension of the lien for the whole period which the security has to run. For it must be presumed, cither thai the lien is to continue and accompany the sc enrity until payment, or thai i1 is relinquished by the substitution of the securitv THE LAW OF Lit N. iO which he would otherwise have been entitled would have arisen by the common law or by the usage of trade. Thus if a person, who from the nature of his employment, has a lien by the com- mon law upon property coming into his possession in the course, of his trade for the labour or expense incurred in respect of that particular property, con- tracts for a specific or a reasonable sum to be paid him as a remuneration for such trouble or ex- pense, he thereby waives the benefit of his lien. Where an agreement was entered into, whereby the sum of ten shillings and six-pence was to be paid to a farrier for curing a mare, and also a reasonable reward for keeping the mare until she should be cured ; and the owner of the mare, as soon as she was cured, tendered the ten shillings and six-pence and demanded *the mare : but the farrier refusing * 49 to deliver it, an action of trover was brought ; and it was adjudged by the court, that the action lay 1 and by Ryder, Ch. J. " it is not necessary to give any opinion as to the right of a farrier to detain a beast for the money due for keeping it until it is cured ; because, if a farrier have in general such right, it was in the present case waived by the spe- cial agreement to be paid a reasonable sum foi the keeping."(?i) And where the law would otherwise imply a lien from the general usage of trade, the parties may, by a special agreement, which shows that the property was not intended to be a pledge, prevent (n) Brennan v. Ourrint, Saver's It. 224. Selw. N. P 1289. 49 THE LAW OF LIEtf , the application of the general rule of law to their case. Accordingly, where goods were deposited with a factor under a special contract, by the terms of which it appeared that the deposit was made for the special purpose of sale, and that the factor pro- mised to pay over the proceeds to his employer : it was determined, that the factor could not retain the goods if not sold, for the general balance of his account arising upon other articles ; because the 50 *terms of the contract precluded the supposition upon which this sort of lien is founded, that the goods were deposited in the nature of a pledge. (0) So too, where the plaintiffs being insurance bro- kers, and indebted to the defendant for effecting an insurance for them, upon his offering to get some bids discounted for them for a certain commission, entrusted a bill to him for that purpose, which he retained for the debt. It was determined, that an action of assumpsit, or case, with a count in trover, might be maintained against him for it.(p) 2dly. Cases in which the disability arises from the want of power to dispose of the property on which the lien is claimed in the party who gives possession of it. 1. Though liens may be derived through the acts of servants or agents acting within the scope of their employments/^ and though wherever the person who delivers the possession of the property on which the lien is claimed to the person claiming it, is invested with authority to dispose of the pro- o) Walker v. Rirch, G T. R 258. (j>) Judin v Samuel, 1 N. It. -ij (>}) Sec ante, p. ii8. J8. THE LAW OF LIEN. *51 perty in that way, the latter shall *not be defeated of the lien to which he is entitled for the trouble or expense incurred about that particular property by the owner coming forward and claiming it(r) Where the act of the servant, agent, or other per- son in delivering the property is wholly unautho- rized, and the pledge of it tortious against the owner, whether the property be delivered to a tradesman for (he execution of the purposes of his trade upon it, or whether it be deposited for bare custody as a security for a loan made upon it, no lien can be acquired upon it by any such delivery; and the owner may recover it by action of trover from the person to whom it is delivered, without tendering him any satisfaction for money raised upon the credit of the deposit of it, or even for trouble or expense incurred upon and for the bene- fit of that property.(s) Accordingly where a ser- vant having by negligence broken his master's chaise, and without his orders or knowledge deli- vered it to a coach-maker, who had never before been employed by his master for the purpose of repairing *it, and the coach-maker refused to deli- *52 ver it up until he was paid for the repairs, and an action of trover being brought for it by the master, contended as a defence, that he had a lien on the chaise for the repairs done to it : Lord Ellenbo- rough said that he had no right to hold the chaise (r) Hammond v. Barclay, 2 East, 22T- Richardson v, Goss, 3 Boi and Pul. 119. Weldon v. Gould, 3 Esp. R. 268 (») See post, lien of pawnee. 62 1HE LAW OF LIEN. as a fien. Whatever claim of that sort he might have, he must derive it from legitimate authority. That unless the master had been in the habit of employing the tradesman in the way of his trade, it should not be in the power of the servant to bind him to contracts of which he had no knowledge, or to which he gave not his assent. It was the duty of the tradesmen when he was employed, to have enquired of the principal, if the order was given by his authority ; but having neglected to do so here, and the master having never employed him, the master was not liable to the demand ; and the de- tainer of the chaise was unlawful. A verdict was accordingly found for the plaintifT.(7J So too, where a factor pledged the goods of his principal : it was determined, that a factor having only authority to sell the goods of his principal, and not to pledge them, the principal might reco- 53 ver them *from the pawnee without making any tender to him of the money advanced upon the pledge.(w) 2. No lien can be acquired by a creditor upon the property of a trader, whether in possession or action which is delivered by the trader to the cre- ditor, with intent to give him a preference in the event of the bankruptcy of the trader : all disposi- tions of property made with such an intent being void at law, on the ground of their being fraudu- lent, and tending to defeat the object of the bank- er) lliscox v. Greenwood, 4 Esp. It. 174. DauMgnyu Duval, 5 T. It. 604. THE LAW OF LIEN, bo rupt laws.(v) But whether the delivery of the property is void, from being made with intent to give the creditor a preference in the event of a bankruptcy, or valid, from not being made with that intent, must be determined by the particular circumstances of each case.(i/;) There are, how- ever, certain circumstances attending the transac- tion, which have been by repeated decisions, set- tled and determined to be, either conclusive or presumptive evidence of the *fraud or fairness of * ,54. it. But as the law upon this point is increased to a very considerable bulk by the number of deci- sions and nice distinctions made upon it, I shall only give a very brief statement of the result of these decisions ,(.r) referring the reader who wishes to be better informed upon the subject, to the se- veral treatises upon the bankrupt laws, where it is more fully considered, and to which it more pro- perly belongs. Any disposition or delivery by a trader of the concii* who\e,(y) or of so much of his property as will alncerf fraud. (r) Alderson v. Temple, 4 Burr 2239. Ex parte Schudamore, 3 Ves. jun. 85. Wilson v. Balfour, 2 Campb. 579. Crosby v. Crouch, 2Campb. 166. 11 East, 256. S. C (w) Burr. 2477. (x) Though most of the cases which will be cited upon this subject .are cases only of fraudulent assignments, without actual delivery of the property, the principle, of them applies as well to cases of fraudu- lent delivery. (y) Small v. Oudley, 2 P. Wms. 427. Worseley v. Demattos, Burr 467. Wilson v. Day, Burr. 827. Kettle v. Hammond, Co. B. L. 89 Devon v. Watts, Doug. 86. Hassclls v. Simpson, Doug. SS. Butche: v. Easto, Doug. 282. Thornton v Hargrave, 7 Bast, 544; and se< Montague, B L. 58. n. (I). 54 THE LAW OF LIEN. disable him from carrying on trade/ z) unless made * 55 with the consent *of every creditor,(«) is conclu- sively fraudulent upon the face of*it ; though it be made as a security for future advances/6J or a debt previously incurred/ c,) or under fear of legal * 56 process, or even under actual *arrest/d) or though the creditor is in full credit at the time the dispo- sition or delivery of the property is made/ej (z) Small v. Oudley, 2 P. Wins. 427. Ex parte Foord, Burr. 477. Conipton v. Bedford, 1 Bla. R. 362. Hooper v. Smith, 1 Bla. R. 441. Alderson v. Temple, 4 Burr. 2235. Law v Skinner, 2 Bla. R. 996. Harman v. Fishar, Cowp. 117- Rust v. Cooper, Cowp. 629 ; and see Montague, B. L. 63. n (t). (a) Kettle v. Hammond, Co. B. L. 89. Alderson v, Temple, Burr 2235. Harman v. Fishar, Cowp. 117 Camford v. Baron, 2 T. R. 494. Eckardt v. Wilson, 8 T R. 140 ; and see Dixon v. Baldwin, 5 East, 175 ; and Montague, B. L. 62. n. (r). (b) YVorseley v. Demattos, Burr. 467. (c) Butcher v. Easto, Doug. 282 In Whitwell v. Thompson, 1 Esp II. 68. it was said by Lord Kenyon, that " all the cases, without a sin- gle exception, where the assignment of his property by a trader had been deemed fraudulent and an act of bankruptcy, had been where it had been given for a by-gone and before contracted debt. But that it never could be taken to be law, that a trader could not sell his pro- perly when Iiis affairs became embarrassed, or assign them to a person who would assist him in li is difficulties, as a security for any advances such person might make to him." This position, however, can onl; be considered as law under this restriction, that the property sold or assigned by the trader do not amount to so much as will disable hira from carrying on trade. For according to the general principle which seems to be established by the cases, the only view with which a tra- der can dispose of any of his property on the eve of bankruptcy is, that he may be relieved by such disposal from present pressure, and enabled to carry on trade for a longer period than he otherwise could. (d) Butcher v. Easto, Doug. 282. Newton v. Chantler, 7 East, 13P (<•) Hassell v. Simpson, Doug, 88. THE LAW OF LIEN. 56 But the circumstance of the disposition or deli- P res ^p- 1 tive evi- hvery of part of his effects being made voluntarily, dence of and without the application of the creditor,(/) or on the eve of bankruptcy ,(#) will be only pre- * 57 sumptive evidence of fraud. And if the trader is induced to give the secu- conciu- rity of such a part of his effects, as will not alto- dJnce^o'f gether disable him from carrying on trade by the faixnws compulsion or even application of the creditor,(/t) (provided such application be not collusive(i) nor in consequence of information officiously and spon- taneously given by the trader to the creditor of the former's insolvency ,)(&) or in consequence of a (/) Jacob v. Shepherd, Burr. 478. Alderson v. Temple, Burr. 2235, Harman v. Fisher, Cowp. 117. Rust v. Coop, Cowp. 629. Devon v. Watts, Doug 1 . 86. Hassell v. Simpson, Co. B. L. 88. Thompson v, Freeman, 1 T. R 155. Cosser v. Gough, cited Montagu, B. L. 72. n. (z) Smith v. Payne, 6 T. R. 152. Ex parte Scudamore, 3 Ves. jun. 85. Singleton v. Butler, 2 Bos. & Pul. 283. Hartshorn v. Slodden, 2 Bos. & Pul. 582. That the circumstance of the assignment being voluntary is evidence of its being fraudulent is clear from all these cases. But that it is only presumptive evidence of fraud is equally clear from the same eases, as well as from that of Cock v. Goodfellow, 10 Mod. 489. and the late decision of Crosby v. Crouch, 11 East, 256. 2Campb. 166. S. C. which confirms the decision of Hartshorn v. Slodden, and in which Lord Ellenborough, Ch. J says : " Two things are necessary to concur in order to avoid the delivery of the goods, namely, the purpose of voluntary pre- ference in respect to such delivery, and the contemplation of the bunk- ruptcy, at the time when the goods were delivered." (g) See cases cited in note (/) (/i) See cases cited in note (/) and Butcher v. Easto, Doug. 282. (*) Per Ld. Mansfield, Alderson v. Temple, Burr. 2285. He) Singleton v Butler, 2 Bos. & Pul. 283 8 57 THE LAW OF LIEN. well,(Z) or even an i\\(m) grounded fear of legal process, though the application by the creditor is to give further security for a debt secured on an in- strument not payable until a future day,(/i) and *58 though previous to the making *of the application the trader had an intention to give a fraudulent preference to the creditor by a delivery of the pro- perty to him, but which intention was not carried into effect until after an actual application was made by the latter,(o) or though the property be delivered secretly ,(p) or though the trader him- self,^) or the creditor also,(rJ know at the time the application is made, that the failure of the for- mer is inevitable, the transaction will not be consi- dered fraudulent. Pres- J3 ut t} ie circumstances of the delivery of the umptive ^ evidence property being for a full and valuable considera- ness. tion ;(s) or, as it seems, of the trader's solvency at (/) Jacob v. Shepherd, Burr. 478. Alderson v. Temple, Burr. 2235. Harman v. Fishar, Cowp. 117. Rust v. Cooper, Coup. 629. Smith v. Payne, 6 T. R. 152. (?») Thompson v. Freeman, 1 T. R. 155. (?i) Singleton v. Butler, 2 Bos. & Pul. 283. Hartshorn v. Slodden, 2 Bos. and Pul. 583. Thompson v. Freeman, 1 T. R. 155. Crosby v. Crouch, 11 East, 256. 2 Campb. 166. S. C. (o) Bayley v Ballard, 1 Campb. 416. (/») Crosby v. Crouch, 11 East, 256. 2 Campb. 166. S. C (*/) Rust v. Cooper, Cowp. 929. Thompson v. Freeman, 1 T. R. 155 Hartsbom v. Slodden, 2 Bos. & Pul. 582. Crosby v. Crouch, 11 East. 256. 2 Camp. 166. S. C. (r)Yeates v. Grove, l Ves.jun. 280. Hartshorn v. Slodden, 2 Bos. h Pul. 582. and sec Crosby v. Crouch, 11 East, 256 2 Campb. 166. S. C. 3ee Cadogan v. Kcnnctt. Cowp, 434. and Worscley v. Demattos, Burr 1f>7 THE LAW OF LIEN. 58 the time it is effected,^) or its being effected in pursuance *of a prior fair agreement ;(t>) or being *59 beneficial to the creditors at large,(w) are only pre- sumptive evidences of the fairness of the transac- tion. 3. According to the original rule of relation which prevailed in the bankrupt laws, no lien could be acquired upon the property of a trader, after he had committed an act of bankruptcy ; the legal effect of such act being to deprive the bank- rupt of all power of charging or disposing of his property, and to avoid all subsequent transactions by him with respect to it without regard to the fairness or fraud of them.(w) The rigour of this rule has, however, been relaxed by the legislature by *four different statutes. By 1 Jac. 1. c. 15. s. *60 14. it has provided, that the relation to the act of bankruptcy shall not extend to the prejudice of any debtor who paid his debt to the bankrupt truly and (t) That it is evidence of fairness, see observatious of Ld. Mansfield upon Cock v. Goodfellow, 10 Mod. 489. in the case of Worseley v. De- mattos, Burr. 478. but that, it seems to be only presumptive evidence. See Hassel v. Simpson, Doug. 88. (v) Small v Oudley, 2 Peere Wms. 427. The law of this case is rather doubtful. See diet. Ld. Mansfield, Harman v. Fishar, Cowp. 117. ace. Singleton v. Butler, 2 Bos. & Pul. 283. contr. (w) Small v. Oudley, 2 Peere Wins. 427. Per Grose, J. Manton v. Moore, 7 T. R. 67. (w) Ex parte Bush, 7 Vin. 74. Billon v. Hyde, 1 Ves. jun. 326. Fal- kener v. Case, 2 T. R. 491. Copland v. Stein, 8 T. R. 199. Tamplin v. Biggins, 2 Camp. 312. Per Buller, J. Vernon v. Hankey, 2 T. R. 113. and Buckley v, Taylor, 2 T. R. 600. 2 Bla. Com. 485. And where the act of bankruptcy consisted in lying two months in prison, all acts sub sequent to the first arrest were void Ex parte Lee, 2 Ves. jun. 285 5© THE LAW OP LIEN. bona fide before he understood or knew that he had become a bankrupt. And by 21 Jac. 1. c. 19. 9. 14. not to purchasers for a valuable considera- tion, unless, in the case of such purchasers, the commission be sued out within five years after the bankruptcy. And by 19 Geo. 2. c. 32. s. 1. not to payment for goods or bills of exchange bona fide made by the bankrupt in the usual course of trade to a creditor who has no notice of the bank- ruptcy or insolvency. An advance of money, or an acceptance of bills by a factor on the credit of a consignment of goods made to him by his principal, (the money advanced being more than the actual but less than the supposed value of the goods,) is not a case that can be brought within the first of these sta- tutes, as a payment for goods sold and obviously not within the second or third: and therefore, where a factor agreed to advance a sum of money, in consideration of a consignment of goods to be made to him for sale on account of the owner, and accordingly, on the consignment being made, ad- gj vanced money, and accepted bills in ^favour of the consignor, and it was afterwards found that the latter had committed a secret act of bankruptcy prev ious to the transaction, and a commission was issued against him, after which the factor sold the goods and received the money , it was decided, that he was answerable to the assignees of the bankrupt for the value of the goods.f x) , Copland v. Stcitj, 8 T. R. 199 THE LAW OF LIEN. 61 But the last and most extensive relaxation of the rule of relation to the act of bankruptcy was made by 46 Geo. 3. c. 135. s. 1. by which all con- veyances by, all payments by and to, and all con- tracts and other dealings and transactions by, and with any bankrupt bona fide made and entered into more than two calendar months before the date of the commission, are rendered valid and effectual, notwithstanding any secret act of bankruptcy pre- viously committed. However under the original rule of relation in all its rigour, and in cases to which none of these statutes extend, where as complete a possession of the property has been given as the situation or na- ture of it would admit, and not with a view to a frandulent preference before the commission of an act of bankruptcy *by the owner, a lien may be * (52 acquired upon it, though the full and perfect pos- session is not obtained until after that act has taken place. Such are the cases of property at sea, and choses in action, in which the delivery of the muniments or documents of the right of pro- perty are deemed sufficient in law to create a Xien.(y) (?/) Many of the cases which will be cited upon this subject are more properly cases of mortgages, or liens in equity, where the general pro- perty is transferred at law conditionally, than of pawns or legal liens, by which only a special property is acquired by the pawnee, the gene- ral property still remaining in the pawnor. But they equally serve to show the general principle. See Cull en, p. S02 to 310. Cooke, B. L. chap. 8. sect. 11. Montague, p. 69. 302. 341. 350, 62 THE LAW OF LIEN. property Thus, where a cargo at sea was made a collate- ral security for the payment of a bond, the deliver) of the invoice and the bills of lading, and of seve- ral indorsed policies of insurance on the goods, was held sufficient to give the creditor a lien on the cargo, when actual possession could not be taken before the bankruptcy of the dcbtor.(z) And where a policy of insurance on goods at sea, and letters of advice have been delivered before an act of bankruptcy, as a security for money advanc- *63 ed to a *trader, together with an undertaking by him to endorse the bill of lading to the lender im- mediately upon its arrival. If the bill of lading be endorsed, and possession of the goods taken by the endorsee, immediately upon their arrival, though not until after the bankruptcy of the trader, the former will have a lien upon them against the assignees. («) chosesin If a policy broker, to whom a trader is indebted ) before his bankruptcy for premiums, be at the time of the trader's bankruptcy in possession of a (z) Brown v. Heathcote, 1 Atk. 160. (a) Lempriere v. Pasley, 2 T. R. 485. as between a person who has an equitable lien and a third person who purchases the thing' for a va- luable consideration and without notice, the prior equitable lien shall not overreach the title of the vendee. For the title of him who has both a fair possession and an equitahle title, shall be preferred to that of a mere equitable interest, per Ashhurst, J. delivering the opinion of the court. And sec opinion of Buller, J. in Lickbarrow v. Mason, 6 East, 25. in notis. (A) For the cases in which it is necessary that notice should be given to the- debtor upon the assignment of a chose in action, see cases col- lected in Montague, B. L. 343 note (:t), and JoilM v. Gibbons* 9 Ves. jun. 417- THE LAW OF LIEN. 63 policy of insurance of the bankrupt's, upon which losses have happened. The broker has a lien upon the money which he receives from *the un- * 64 derwriters after the bankruptcy.^ c) It has likewise been decided, that where a factor sells the goods of the principal before the bankruptcy of the latter, and can maintain an action against the purchaser in his own name, or discharge him by his receipt, he has a lien on the price in the hands of the pur- chaser, and may retain it though not paid to him until after the bankruptcy of his principal.fd) And where a trader gave his creditor before bank- ruptcy, an order upon a person in a public office " out of the money due to the trader, and that would become due, to pay the creditor for value received," and the creditor delivered the order to the officer. It was determined, that he acquired a lien upon the money due from the office to the trader, notwithstanding the latter committed an act of bankruptcy before the money was paid pursuant to the order.f ej But, where a person had accept- ed several bills of exchange on account ; and for the accommodation of a trader, and the trader pre- vious to his committing an act of bankruptcy, exe- cuted *a power of attorney, to the acceptor of the * 55 bills, to receive money due to the trader, and hold it as a security to himself, to answer the extent of his engagements ; it was determined, that such ac- (c) Whitehead v. Vaughan, Co. V,. L. 566. (d) Drinkwater v. Goodwin, Coup. 251 , (e) Row v. Dawson, 1 Ves. 331- Yeates v. Grove, 1 Yes. jun. 280. 65 THE LAW OF LIEN. ceptor had no lien upon money received after the bankruptcy of the trader under the power of attor- ney, and that the assignees of the trader might recover it in an action for money had and re- ceived.^ 4. No lien can be acquired, unless the property on which it is claimed come into the possession of the party claiming it, or of some one who can be considered as his agent for the purpose of receiv- 66 ing it(g) *Thus where bankers having fraudu- lently sold out stock belonging to a customer which stood in their names, and applied the proceeds to tl^eir own use, and while they remained solvent wrapped up certain bonds belonging to them in an envelope inscribed with the customer's name, and enclosing a memorandum stating that they had de- (/) Hovill v. Lethwaite, 5 Esp. R. 158. (g) Kinlock v. Craig, 3 T. R. 119. 783. per Bailer, J. Lickbarrow ^ Mason, 6 East, 25. in notis. In. Falkener v Case, 2 T. R. 494. 1 Bro. C C 125. S. C. a ship at sea was assigned together with a policy of insur- ance on it for a debt due from the owner. But the policy being at the time of the assignment in the hands of the debtor's broker, who claim- ed a lien upon it, and would not part with it ; it was agreed between the debtor and creditor, that it should remain with the broker, who upon having his lien satisfied by the assignees of the debtor delivered the policy up to them. Upon which the creditor to whom it had been assigned, filed a bill against them in chancery, and the lord chancellor made a decree m bis favour, observing, " There seems to me to be no difference in cases where effects which have been in the possession of the pawner arc pledged and where goods that he lias a property in are left in the hands of a third person ; I consider them equally as pledges.'^) (1) According to the distinction laid down in Ryall v. Rowles, 1 Atk 1G5. 1 Ves. 348. S.«C. this is a case of mortgage and not of pawn. See no->t Yu n of pawnee THE LAvV OF LIEN. 6t> posited the bonds with him as a collateral security for his stock, and a promise to replace it, and then deposited the parcel among the securities belong- ing to other persons who dealt with them ; but hav- ing given no information to the customer of any of these circumstances, until the eve of their bank- ruptcy, when they sent him the parcel with the bonds, saying, they must stop payment the next morning. It was determined that the customer acquired no lien on these bonds against the as- signees of the banker : because he had not sum- cient possession of them, until they were sent him by the bankers, upon the eve and in contempla- tion of their bankruptcy ; *and the bankers could * 67 not be considered as the agents of the customer for receiving the bonds, he being entirely ignorant of the transaction at the time they were depo= sited.(h) (fi) Wilson v. Balfour, 2 Camp., 579 *68 THE LAW OF LIEN. *CHAP. V. By what rneans the right of lien is or is not divested or waived. By pan- j. LIENS at law exist only while the party en- ing with .,'•,, • • • > 1 posses- titled to them continues in possession oi the pro- when di- perty in which they have been acquired ; and if vested, j^ once relinquishes that possession after the lien attaches, the lien is gone.(a) For by parting with possession of his security, he shows, that he trusts merely to the personal credit of his debtor ; and if liens were allowed to remain upon goods, after they had been negotiated and sold, the conse- quences would be highly injurious to trade ; as no dealer could in that case know when he purchased goods safely. Upon this principle where a factor having a lien on goods of his principal for the gene- ral balance of his account, gave orders to the ware- *69 houseman, in whose *warehouse they were, to de- liver them up to a broker employed by the princi- pal, on the occasion, telling the broker at the same time thai the principal intended to sell them him- self to save commission, and the broker sold them (a) Jones v. Pearle, Str 556. En parte Shank, 1 Atk. 254. Krugerv. Wilcox, \uibl. 252. Wilkins v. Carmichael, Doug. 97. Judgment of IJnl!< r, J, ('. Bast, 25. in notis Sweet v. Pym', I Bast, 4. M'Conibie v. Dories, 7 But, 5. THE LAW OF LIEKf. 69 and made out bills of parcels to the principal, without taking any notice of the factor : it was de- cided, that such conduct on the part of the factor amounted to the same thing, as if he had delivered the goods up in specie to the principal, and that he had therefore lost his lien upon them.(b) In conformity to the same rule, where a trades- man having a lien on goods of his employer placed in his hands, in the course of his trade, for the gen- eral balance of his account, delivered them to a ship carrier to be conveyed on the account and at the risk of the owner, though the latter circum- stance was unknown to the carrier ; it was deter- mined, that having once given up the possession of the goods he could not afterwards recover his lien by stopping them in transitu and procuring them to be redelivered to him by virtue of a bill of lading signed by the carrier during the coarse of the voyage.fcj *But where a broker after having parted with *7q possession of a policy of insurance, on which he when had a lien for his general balance to his principal, vested, obtained it again, under pretence of receiving the loss from the underwriters, but in fact with a view to hold it as a security : it was holden, that the lien revived, when the subject of it came again into the hands of the broker.(rf) And though liens cannot be transferred by those who have fairly acquired them against tiie owners, (b) Kruger v. Wilcox, Ambl. 252- (c) Sweet v. Pym, 1 East, 4. (<*) Whitehead v. Vaughan, Co. B. L. 566. 76 iHE LAW OF LIEN. by a tortious delivery of the subject to tLird per- sons : where a party having a lien on goods against the owner, delivers them over to a third person with notice of his lien, and purporting to transfer his right of lien to the other as his servant, and in his name, and as a continuance in effect of his own possesson, his right will not in that case be divest- * 71 ed.(e) And if a factor, being in advance *for his (e) See Man v. Shiffner, 2 East, 529. and diet. Lord Ellenborough, Ch. J. i« M'Combie v. Davies, 7 East, 5. There is no doulit from the several decisions upon this subject, that by relinquishing the possession of the goods to the o~.vner himself or his agent, the party having a lien upon them, loses it ; neither is there any doubt, from the cases of Daubigny v. Duval, 5 T. K. 604 and M'Combie v. Davies, that a lien cannot be transferred to the pawnee by a tortious pledge of the goods on which it is claimed. But the decisions do not appear to agree so perfectly upon the point, whether the pawnor himself loses the benefit of his lien by such a pledge. For it is to be observed, that in the case of Daubigny v. Duval, a tender was made to the factor who had tor- tiously pawned the goods of the balance due to him previous to the commencement of the action against the pawnee. And Buller, J in saying, " If the principal has redeemed himself as against the factor, he need not enquire into the transaction between the factor and the pawnee," seems to consider a tender to the factor necessary ; and con- sequently that h.s lien continued, though he had transferred the posses- sion of the goods to the pawnee. In the case of Sweet v. Pym, 1 East, 4. Lord Kenyon, Ch. J. said, " the right of lien has never been carried further than while the goods continued in the possession of the party claiming it. In the case of Kinlock v. Craig, 3 T R. 1 .19. it was strongly insisted, that the right extended beyond the time of actual possession ; but the contrary was ruled by the court, and afterwards by the house of lords." It is Lo be observed, however, that in the case of Sweet v. Pym, as well as in that of Kruger v. Wilcox, Ambl. 252. the possession of the goods was delivered up to a person, who was considered as the agent of the owner. And in the case of Kinlock v. Craig, actual pos- session was never obtained by the party claiming the lien. In the case of Lickbarrow v. Mason, 6 But, 25. in notis, it is laid down generally by Buller, J, that by parting with possession the lien is lost. In the THE LAW OF LIEN. 71 principal, disposes of the goods, making the buyer debtor to himself, *he retains a lien upon the price *T2> in the hands of the buyer, who cannot after notice pay it to the principal, or his representatives. (/) And where the holder of a bill of exchange gave the drawee a letter from the drawer, which con- tained a navy bill, as the fund out of which the bill of exchange was to be paid, and which had been given to the holder as a security for the pay- ment of the bill of exchange, and the drawee kept the navy bill and received the proceeds : it was adjudged, that the holder had not lost his lien on the navy bill by such resignation of possessions^ A captain of a ship too, who has a lien upon the cargo for freight, does not, it seems, part with his lien by depositing *the cargo in the king's ware- * 73 house pursuant to the regulations of an act of par- liament concerning the revenue.(A) There are some cases, too, in which the posses- sion of the property on which the lien exists, may be given up to the owner himself without the lien case of M'Combie v. Davies, 7 East, 5. It was decided, that a broker could not transfer his right of lien by a tortious pledgee of his principal's good, ; and that the principal might recover them from the pawnee, without tendering - him the balance due to the broker ; and so far it agrees with the decision of Daubigny v. Duval. Hut there does not ap- pear, in the case of M'Combie v. D ivies, to have been any tender to the broker, as there was in Daubigny v. Duval to the factor previous to die commencement of ll e action .gainst the pawnee ; though the broker was in advance to his principal in the former case, as well as the factor fc the latter, and though the pledge was equally tortious in both. (/) Drinkwater v. Goodwin, Cowp. 251. (g) Pierson v. Dunlop, Cowp. 571. (h) Per Lord Kcnyon, Ward v. Felton, 1 East., 507. Abbot., 276. 73 THE LAW OF LIEIN. being divested. Thus, if the commodity upon which the party has a lien be of a perishable na- ture, he may safely part with it to the owner, upon a proper agreement with him, that the lien shall await the event of an application to a court of law or equity.(f) And where the property upon which the lien exists, is delivered up to the owner upon the faith of an assignment, which afterwards turns out to be invalid ; it seems that the party is still en- titled to the benefit of his lien. (A) By bank- 2. Liens acquired without fraud or collusion be- ruptcy l not di- f ore an act of bankruptcy is committed by the vested l J J person upon whose property they are claimed, are not divested by his subsequent commission of * 74 such act ; the assignees taking the bankrupt's *pro- perty subject to the same equitable liens as those under which the bankrupt himself enjoyed \t.(l) For the general principle, of the bankrupt laws, that all the creditors of the bankrupt shall be placed upon an equal footing, does not extend to such as have fairly acquired a lien upon his pro- perty ; because the other creditors trusted to the personal credit of the bankrupt, while those who had liens trusted only to the things which were the subjects of those liens, and not to the personal (i) Ea pa !• <>■ kenden, 1 All;. 235 and Copland v. Stein, 8T.R. 199. / | \ ernon v, Han] T. If. 1 13. (Z) Orlebar v. Fletcher, I Peer< Wms.737. Walker v. Harrows, 1 \tk.!>! Crown v. Ueathi >te, i Vtki 162. Ex parte Dumas, 1 A-tk 132 LempriereA Pasley, 2 T R, (85. and cases collected. Tayiprv. Wheeler, 2 Vcrn. 566 note (j) Ias1 -.•<] And sec Sir Samuel Romily' i') Geo 3 c l J', i THE LAW OF LIEN. 74 credit of the owner. Nor does the allowance of such liens upon the whole tend to the prejudice of the creditors at large, whether the liens be acquired by a mere pawn of the property, or for work done upon it in the course of trade : for in the former case the money lent to the bankrupt would never have become a part of his assets, if the thing were not pledged to raise the loan ; and in the latter case the value of the property would not contri- bute so much to increase the fund *out of which * 75 the other creditors were to be paid, if the work were not done upon it. 3. If a person having a lien upon goods in his -♦" possession when they are demanded of him, claims to detain them upon a different ground, making no mention of the lien, it will be considered as a waiver of it, and trover may be maintained against him without evidence of any tender having been made of the amount of his lien.(m) 4. But no lien once fairly acquired shall be de- vested, while the property on which it exists re- mains in the possession of the party claiming the lien, by the owner's aliening the property to a third person. For such person, though a bona fide pur- chaser must take it subject to the lien.(w) (w) Boardman v Sill, 1 Camp. R. 410. n. (n) Godin v. London Assurance Company, Burr 489. X 75 i'HE LAW OF LIEN* Lien of Altomies and Solictors. when a r fhe attornies and solicitors of the different lien can . be chum- courts of law and equity have a hen for ther costs pipers 011 upon all papers of their ^clients that come into 76 their possession in those characters for the purpose of business ; and though such papers do not come into their hands in the particular cause, or on the particular occasion from which their demand arises. In the court of chancery they are permitted to re- tain title-deeds.(a) And it has been admitted, that an attorney has a lien upon court-rolls, and other papers which come into his hands as steward of a court, and receiver of rents, until he is paid what is due to him from the proprietor ; and the * 77 court will not compel him to *deliver them up without satisfaction of that lien. (a) Anon. 12 Mod. 554. Mitchell v. Oldfield, 4 T. R. 123 Ex parte Vesbitt, 2 Scho. and Lefr R. 279. An agent in town lias a lien upon papers in his hands not immediately against the client, but through the medium of the solicitor in the country employed by the client The agent having a light to retain the papers from the client, until whatever remains due from him to the country solicitor is paid to the agent, as far as it will go in satisfaction of Ids demand against such so Ward v. Hepple, 15 Ves. jun. 29r. and see 16 Yes. jun. 161. And if a client change his solicitor during the cause, the former soli tor will have a lien upon papers in his hands for his costs; hut the court will not allow tin solicitor 'o 'too the progress of the cause by any other means, Merryweaither v. Mellish, 13 Ves. jun. 161. O'Dea • I'm. ] Scho and l.(f. 315. Twort v. Dayrell, 13 Ves. jun. 19.'? Ami if a Miliritor declines proceeding to ah< aring in the court of chan- »■ for H' client, In- will have no lien upon anj fund in rourl . Biron, 14 Ve* iun 271 ¥ THE LAW OF LIEN. 77 And where an order is obtained for taxing an attorney's bill, and delivering all books, papers, &c. upon the back of which the prothonotary en- dorses his allocatur, the attorney is entitled in the first instance to the possession of it, for the purpose of enforcing payment of his bill.(6) This practice of allowing attornies a lien upon the papers of their clients, is not, according to Lord Mansfield, of very ancient date, but was established on general principles of justice.fc) But though an attorney has in every case a par- when a ticular lien upon papers, until he is recompensed jSTcan for the trouble of drawing them, where the pro- cuimtd perty in papers at the time of the delivery of them upon pa by the client *to the attorney is in a third person, * 78 the attorney cannot detain them against the owner for a debt due from the client.fd) And though a solicitor have a lien on a deed for his costs, yet if his client is bound to produce it for the benefit of a third person, so also is the solicitor ; the right of lien existing only as between his client and hirri.(e) (b) Alger V. Hefford, 1 Taunt. 38. (c) Doug. 104. and see 16 Ves. jun. 280. At a trial at Nisi Priiis. Pasch. 6 W. &. M. where A. purchased the interest of a lease for years, aud the writing was left in the hands of B. an attorney, to draw an assignment of it ; andE. drew it, and it was sealed ; but B. refused to deliver it until A. paid for it. Upon which A. brought trover against ,B. for the deed. It was ruled by Holt, Ch. J. that the action well lay, because B. might have an action for what he deserved, but that he could not detain for it. Anon, ex rel. Magistri Place, 1 Ld. Raym. 738. (d) Ex parte Bush, 7 Vin. Ab. 74. Ex parte Bell, 18 Aug. 1803. Co B. L. 429. This is considered as a doubtful point in Bac. Ab, tit. At- temey.(/) (r) Furlong v. Howard, 2 Scho. andLef. 115. 10 78 THE LAW OF LIEN. And if a tenant for life give deeds into an attor- ney's hands, the attorney has no lien upon them against the remainderman ; for that would enable a tenant for life to charge a remainderman, and to create a greater interest in another than he himself possessed.(/) If writings too are delivered to an attorney under a special agreement, or for a particular purpose, upon a special trust, not to be subject to the gene- * 79 ral lien, he *cannot detain them. Thus where the plaintiff had an estate mortgaged to him, and the defendant who was an attorney, and who drew the mortgage, did by that means get all the deeds re- lating to the title into his possession, and refused to deliver them to the plaintiff, unless the mortga- gor would pay a debt which the defendant pre- tended to be due from him : upon a motion for a rule to deliver up the deeds to the plaintiff upon payment of what was due for drawing and en- grossing the mortgage, the court was of opinion, that though an attorney might detain papers until the money be paid for drawing them, he cannot detain any writings which are delivered to him upon a special trust, even for the money due to him in that very business ; and a rule was accordingly When no made for delivering up the dceds.(g) And if an Ik claim- ed. (/) Ex parte Nesbitt, 2 Scho. r.n.l Lcf. 279. and sec Hu:nc v. Parker, 2T. R. 376. and post, lien of pawnee. (6. Davis \. Bowsher, .'• T R 488 , and gee Savill v. Barchard, i Esp. 58. (b) Davis v. Bowsher, 5 T. R. 488. (r) Vanderzec v. Willis, 3 Bro. r C. 21. Bee lien of pawnee note (}■: rm: law ov lien. 90 bills selected from those so lodged, the banker does not by such selection waive his lien upon the remaining h\\h.(d) Lien of Calico Printers. A calico printer has not only a particular lien upon linen placed in his possession for the execu- tion of the purposes of his trade, for work done to that linen, but also for a general balance due for printing other linen for the same employer.(a) But this lien of the calico printer for his general balance is confined to such general balance, as arises from work done by him in the course of his trade, and cannot be claimed for debts due on other accounts from his employer.(6) Lien of Carriers in general. Every common carrier(cj is warranted *by the *91 common law to detain cootls delivered to him for hav^T* particu- lar lien. (n board a ship at an unseasonable hour the master is not obliged to taki them in. Morse v. Slue, cited by Holt, Ch. J. Lord Raym. 652. A carrier may also make a special contractor refuse to take goods in extraordinarj cases, hut upon extraordinary terms, Gibbon v. Paynton, 1 Burr. 2298. And of Late J ears they have been allowed to limit their very considerablj by special notices Nicholson v I HE LAW OF LIEN. 92 for this reason he is not bound to enquire into the title of the person who delivers the goods to him ; and may retain them against the true owner until the carriage be paid 5 though the latter should prove, that they were stolen from him by the per- son from whom the carrier received them.(g) But no carrier *can, by the common law, claim a lien * 93 for his general balance, or to any greater extent than the carriage price of the particular goods. Such a lien may indeed be established in this as well as in any other case by proof of an express contract for it ; or it may be implied from the gen- eral usage of trade ;(/i) or the particular mode of dealing between the parties themselves. (?) But the frequent attempts made by carriers of late years to alter the situation in which the law has placed them, by limiting their responsibility, on the one hand, by special notices, and on the other by extending their lien so as to cover their general balances, have rendered the courts extremely jea- lous of admitting such an extension ; and accord- ingly in the case of Rushworth v. Hadfield, 6 East, 519. 7 East, 224. it being determined by the court K. B. that the claim of carriers to a lien for their general balance was contrary to the. policy of the Willan, 5 East, 507. Clay y. Wilkin, 1 H. Bla. 298. I/.ctv v. Mountaii \ East, 371. (§•) Case of the Exeter carrier cited by Lord Holt, in Yorke v. Gre- naugh, 2 Ld. Raym. 867- (h) Aspinall v. Pickford, 3 Bos. & Pul. 44. n, But see Lord Ellen- borough's observations upon this case in Rushforth v. Hadfield, Smith's R. 637. (?) Rushforth v. Hadfield, 6 East, 519. 7 East, 224. 98 THE LAW OF LIEN. common law, and the interest of trade, and by ne means necessary for their own convenience. To 94, establish such a claim on general usage *the proof must be very strong ; and evidence of a few recent instances of detainers by carriers for their general balance would not be sufficient to furnish an infer- ence that the party who dealt with the carrier had knowledge of the usage, and thence to warrant a conclusion, that he had contracted with reference to it, and adopted the general lien into the particu- lar contract. But it was at the same time admitted by the court, that either the general usage of trade, if notorious, uniform, and long established, or the previous usage of the parties between themselves, if clearly proved, would be sufficient evidence of a contract for a general lien. In conformity with the rules by which all the liens at common law are governed ; if the carrier parts with the goods out of his own or his agent's hands after the lien has attached, the lien is gone. And an usage for carriers to retain goods cannot be supported in opposition to the consignor's right to stop in transitu.(A-) Neither has a carrier, who by the usage of a particular trade, is to be paid for the carriage of goods by the consignor, any right <■ 95 to detain *them against the consignee, who has paid the price of them for the carriage of other goods of the same sort sent by the consignor.(Z) (k) Oppenheimv. Russel, 3 Bos. & Pul. 42. Lickbarrow v. Mason, 6 But, 25. in not is. ") Butlerv Walcott, 2 Bos. 8c Pul.N.R.64. THE LAW OF LIEN. 95 Lien of Carriers by Water. Owners and masters otgeneral(a) ships and ves- sels carrying goods for hire on the high seas or on navigable rivers, as hoymen and lighterman, are common carriers by the custom of the realm, and being under the same obligation, and subject to the same responsibility by the common law as carriers by land,(6) are entitled by that *law to the same *9G (a) By the term general ship, is meant a ship which is employed by the masters or owners of it to convey the goods of various merchants unconnected with each other, to the place of their destination. And the term is here used in contradistinction to a chartered ship, which is employed under a sealed instrument called a charter party. Abbot, 112.215. (b) Coggs v. Bernard, Ld. Raym. 918. 1 Ventr. 238. Jones on Bailm. 106. Abbot, 249. The responsibility of carriers by water stood on the same footing at common law as that of carriers by land: both being alike responsible for every damage, but that which accrued by the act of God or the king's enemies. Abbot, 223. Both, however, have suc- ceeded in altering the situation in which the common law had placed them ; the latter by special notices, the legality of which seems now to be clearly established, ante, note (/), and the former by introducing clauses into the bills of lading to take away the responsibility of the masters and owners in various cases in which they would Otherwise be responsible. (The right of doing which appears to be fully admitted, Nicholson v. Willan, 5 East, 507. Abbot, 218. 59. 62. Christian's notes to 3 Bla. Com. 165. note 7.) And by applications to the legislature, which has thought proper so far to accede to their wishes, as entirely to take away the liability of the owners in cases of damage by fire ; 26 Geo 3. c. 86. s. 2. and to limit it to the value of the ship and freight in case of embezzlement or robbery, 7 Geo. 2. c. 15. 26 Geo. 3. c. 86. a. 1 ; and to discharge both the master and owners from any responsibility fbr any gold and silver, diamonds, watches, jewels orpreeious stones, unless the shipper declare the true nature thereof to the master or owners by the bill of lading, or otherwise in writing, 26 Geo. 3 o. 86 .<=- 96 THi: LAW OF LIEN. particular lien for the price of the carriage of goods 97 delivered to *them in the course of their trade ; and the luggage of a passenger may be detained by the master of a vessel for his passage money.(ra) The right of retaining possession of the cargo, until the freight of the ship was discharged, ap- pears to have been allowed to the master by most of the maritime codes of Europe. By the civil laws, as well as by those of Oleron, he is entitled to detain the cargo until payment is made of the freight and other charges, such as primage and average due in respect of it. The same privilege was given to him by the maritime ordinances of France.fw) According to our law whether the ship be a chartered or a general ship, the master is not (unless there be an express stipulation that he shall be,) bound to part with the possession of any part of his cargo, until the freight and other charge? 3 ; but except in this last case, the liability of the master remains the same as at common law, unless varied by a special contract, Abbot. 265. The justice of admitting' common carriers to limit their responsi- bility, when the true value of the goods entrusted to them is concealed bv the 'owner, is obvious, when it is considered that (except in the cases just mentioned) they arc liable for unavoidable accidents, and that by requiring a declaration of the value of the g*oods, as the condi- tion of their responsibility, they do not in fact decline the obligation which the law has imposed upon them, of carrying for reasonable reward, butonh secure themselves from being defrauded of a reward which is reasonable and adequate to the risk they incur ; and when it is recol- lected too, thai a carrier was never considered as liable to any greater i utenttban the value of the goods as represented iohhn by the bailor Oarth 485. (m) Wolf v. Summers, 2 Campb. 681 . Vbbot, 24 I THE LAW OF LIE1S. 97 due in respect of such part are paid,(o) It has *been holden too, that he may detain any part of *98 the merchandise for the freight of all that is con- veyed to the same person. (y>) But where the time and manner of the payment of the freight are re- gulated by express stipulations in the charter party. (which is frequently the case) the payment can only be enforced by proceeding on the charter- party.^/ J Nor can the master detain the goods on board the ship until these payments are made, as the merchant would then have no opportunity of examining their condition.(/j The usual prac- tice in England is to send the goods to a wharf, and order the wharfinger not to part with them un- til the freight and other charges are paid/s) which the master may do if he is doubtful of the pay- ment, without losing his lien, as the possession of the wharfinger will, in such case, be considered the same as the master's. Or, if by the regulations of the revenue the goods are to be landed and put into the king's warehouse, if the duties are not paid, the master may, it seems, enter them in *his * 99 own name, and thereby preserve his lien.(?) (o) Abbot, 276 Anon, cases, 12 Mod. 417, 511. Artazav. Smallpiece 1 Esp. R. 23. ( p) Soldergreen v. Flight, cited 6 East, 622. Abbot, 245. (?) Abbot, 276. (r) Abbot, 245. But see Artaza v. S-mallpiece, 1 Esp. R. 23 (s) Abbot, 246. (t) Abbot, 276- J have said it scans, because Mr. Abbot gives lis no authority upon this point; and in the case of Ward v. Felton, 1 East, 507. Ed. Kenvon doubted whether the captain parted with his lien on 12 99 THE LAW OF LIES. But according to the principle by which all liens by the common law are regulated, if the master once voluntarily parts with the possession of the goods out of his own or his agent's hands, he loses his lien upon them, and cannot afterwards re- claim them.(u) Lien of Dyer. Dyers have a particu- Though dyers, in common with other manutac- larlien. i * 100 turers, are not under any general obligation of law to receive the goods of *every one who may send them for the purpose of being dyed,(«J they have a particular lien upon all goods entrusted to them But not in the course of their trade, and may retain those a. general goods for the work done upon them. But there is no usage of trade, which entitles them to retain such goods for any other demand against the Unless owner, nor can they maintain a claim to a lien for there be a general balance accruing from work done in the an ex- o ° press ri^nV" the ground for freight, by depositing them in the king's warehouse, pursuant to the regulations of the act of parliament. (») Anon. 12 Mod. 511. Artaza v. Smallpiece, 1 Esp. R. 23. Abbot, 246. In the case of Soldergreen v. Plight, Guildhall, sitt. after Trin. 1796, before Ld. Kenyon Ch. J. cited Hanson v. Meyer, 6 East, 622. the captain of the ship was allowed a lien on a part of the cargo, which had been removed into a lighter alongside of the ship sent by the vendee, and which the captain afterwards fastened to the ship's side to prevent its final removal. (a) Collins v. Qngley cited Brennan v.Currint, Saver's li. 224, Kirk- man v Bhawcross, 6 T. it 14 Oppenheim v. Russel, 3 w<^ & Pul 42 THE LAW OF LIEN. 100 course of their trade, unless there be an express agreement for it.(6) (b) Green v. Farmer, 4 Burr. 2214. 1 Bla. H. 651. S. C. Close v. Water house, 6 East 523. in notis. In the cases of Mitford v. Vaughan, 6 East. 523. note e. and Rushforthv. Hadfield, 6 East. 523. it was said by the court, that since the case of Green v. Farmer, it had been estab- lished, that a dyer had alien for his general balance. But the onlj cases which I can find subsequent to Green v. Farmer, which go to establish such a lien, are the two nisi prius decisions of Savill v. Bar- chard, E. 41 G. 3. A. D. 1801. 4 Esp. R. 53. and Humphreys v. Partridge, tried before Mr. J. Lawrence, at Gloucester summer assizes, 1803 ; cited Montague, B. L. Vol.4, P. xviii. note (a). In the first of these cases strong evidence being given of the usage of trade in favour of such lien, Ld. Kenyon directed the jury, if they thought such was the general practice of trade, to find for the defendants, (who set up the lien as a defence in action of trover, for a quantity of baize sent them to dye,) and the jury thereupon found a verdict for them. In the se- cond case the only point agitated was the right of a dyer to retain for his general balance ; and nearly all the dyers in Gloucestershire, and some from other counties were examined, by whose evidence Mr. J. Lawrence said, he thought the custom was proved, and (Green v. Far. mer, Burr. 2211. being cited on the other side,) observed that in seve- ral subsequent cases the custom had been established. And the dyers had a verdict. But in Close and another assignees of Riddel v. Wa- terhouse and others, 6 East 523. note (c), which was trover for woollens delivered by the bankrupt before his bankruptcy, to the defendants, who were dyers at Halifax, to be dyed ; and where a tender had been made of the price of dying the particular goods, but the defendants claimed to retain for their general balance for the expense of dying other goods on the ground of usage. The jury, at the trial before Rooke, J. at the York assizes, negatived any such usage at Halifax, and found a verdict fur the plaintiffs: and on motion for a new trial, Tr. 42 G. 3. the court of K. B. finally discharged the rule, being- of opinion that as the usage was negatived, the defendants coidd not re- tain for the price of dying any other than the particular goods dyed, or at most, only for the dying of such goods as were delivered to them at one and the same time, under one entire contract, and that at any rate, the circumstance of the defendants having had different parcels of goods in their hands at one time, which had been delivered at se- veral time?., did not give them a lien on the goods in question remain *J01 THE LAW OK LIEN. *Where however the dyers, dressers, whitsters, 102 printers and calenderers of Manchester "'and the neighbourhood, had published resolutions agreed- upon among themselves at a public meeting, that they would not receive any more goods for the execution of the several purposes of their trades upon them, but on condition that they respectively should have a lien on such goods for their general balance : the court of King's Bench held this agreement to.be good in law, because it was at the option of those who made it, to receive goods or not ; and that any one, who after notice of it delivered goods to any of those manufacturers, must be taken to have assented to the terms of it, and consequently could not demand the goods so delivered, without first paying the balance of their general account.(c) Lien of Factor or Broker* factors have always, it seems, been entitled to a particular lien upon the goods of their principal 103 coming into their possession *in the course of their trade, for the charges incident to those particular th( ir hands, for the pilcc of dying 1 such other distinct parcels, us a >■'. .1 to the owner. Sha> l rass, 6T. R. 1 !. and see Clarke v. Cray, 4Esp R 178 THE LAW OF LIEK". 103 goods.fd) And since the case Kruger v. Wilcox,(e) Ambl. 252. A. D. 1755. their right to a general lien has been established upon the same principle, that general liens have been admitted in other cases by general usage of trade. And wherever there is a course of dealings, and a general account between the principal and factor, and a balance is due to the factor, he has a lien upon all goods of the principal in his hands, in the character of factor for such balance, without regard to the time when, or to the account upon which he received them.(f) He has this lien too, not only for money actually advanced to his principal, but also for a debt for which he is *only a surety for him ; and although * 104 he does not pay the debt until after the bankruptcy of the principal, provided the delivery of the pro- perty and his becoming surety took place before it(g) For the lien attaches upon his becoming- surety, which is the same thing as if he lent him the money. The case, indeed, of a factor is that in which (J) In common with other trades, ante, Chap. 2. a factor may dc tain goods to pay customs in any plaee, or for salvage, 2 Atk. 623. and see Wiseman v. Vandeput, 2 Vera. 203. (e) It was doubtful before that case whether a factor could retain for the general balance of his account, per Ld. Mansfield, 4 Burr. 2218. (/) Kruger v. Wilcox, Ambl. 252. Gardiner v. Coleman, S. C. cited 1 Burr. 494. Ex parte Emery, 2 Ves. 674. Godin v. London Assurance Company, 1 Burr. 494. Green v. Farmer, 4 Burr. 2214. Zinck v. Walker, 2 Bla. 1154. Hollingsworth v. Tooke, 2 H. Bla. 501. Walker v. Birch. 6 T. R. 262. and see 6 East 25. in notis. (g) Drinkwater v. Goodwin, Cowp. 251. Hammonds v Barclay, "' East, 2'. 1 .". J 04 THE LAW OF LIKiN. for the convenience of trade, from the nature of his employment, and with a view to encourage him to advance money upon goods in his possession, or which are to be consigned to him,(h) the right of lien appears to have been most favoured, and car- ried to the greatest extent. For it has been de- termined, that where a factor sells goods under a del credere commission, whereby he becomes res- ponsible for the price, or where he is in advance for goods by actual payment, he has a lien on the price in the hands of the purchasers, though he has parted with possession of the goods ; because though he has not the actual possession of the goods, yet as he has the powerof giving a discharge, 105 or ^bringing an action, he has a right to retain the money in consequence of his lien, as much as a mortgagee has by the title deeds of an estate in his hands, though he is not in possession.(/J Nor will this lien be defeated by proof that the factor knew at the time when he advanced the money to his principal, that the latter was in insolvent circum- $tances.(&) And if a factor effect an insurance for his princi- pal, and the principal be indebted to the factor on the balance of account, he may retain the policy, and has a lien upon it while it remains in his pos- session, and the balance remains unpaid. And where the consignor of a cargo of goods directs I Bos. & Pal. 488, 9. .) Drlnkwater v. Goodwin, Cowp. 251. I \ croft v. Devonshire, 2 Barr. 981 THE LAW OF LIEN. 106 i his factor to make an insurance upon it, and after- wards assigns both the cargo and the policy of in- surance by an indorsement of the bill of lading, the assignee takes the policy subject to the lien of the factor for the general balance of his account with the consignor, and must pay that balance before he can oblige the factor to deliver up the policy.(7) And though the policy never come into the actual possession of the factor himself in such a case, but remain *in the hands of the broker who effected the * 106 insurance for the factor ; the latter will still have a lien upon the money received upon the policy by the broker ; who will be entitled to retain it against the assignee, as the servant of the factor ; the pos- session of the broker being considered in effect the same as that of the factor.(mJ If the principal die before the consignment, on the faith of which the factor has advanced money, or accepted bills, come into the hands of the latter : and the executors of the principal, by any conduct of theirs, confirm the original destination of the goods, and the authority of the factor, he will be entitled to the same lien as if the principal had lived. Thus where a principal gave notice to a factor of an intended consignment of a ship to him, for the purpose of sale, and in consequence drew bills on him, which the factor accepted on the credit of the consignment ; after which the principal died, but his executors directed the cap- (l) Godin v. London Ass. Co. 1. Burr. 494 Man v. Shiffner, 2 East, 523. 106 THE LAW OF LIEN. tain of the ship to follow his former orders, and wrote to the factor, communicating the death oi the principal and their appointment as executors, ordering him at the same time to have the policy '•' 107 "on a part of the cargo cancelled ; after which the ship arrived, and was delivered by the captain into the possession of the factor, who sold it : it was determined, that even if the death of the principal could be considered to operate as a revocation of the factor's authority, so- as to prevent him from haying a lien on the proceeds of the ship, yet the subsequent conduct of the executors was a suffici- ent affirmation of the factor's authority, and he was therefore entitled to a lien upon the proceeds, not only for the amount of money disbursed by him for the necessary use of the ship on its arrival, and for the acceptances by him actually paid, but also for the amount of his outstanding acceptances not then &ue.(n) Whena ].But where a factor advanced money to his •actor II' • hai no principal, who was a clothier, relying on the credit of his cloths remaining in his hands to reimburse himself, and the clothier died, and upon his admi- nistrator slim;;' at law for the cloth, the factor came into equity, an I prayed he might be allowed an ac- count of the monies he had advanced, it was re- refused : because if there were debts of an higher ' 108 nature, il would have been a ^'devastavit in the ad- ministrator to pay the factor's debt.(o) („) Hanii >nds v. Barclay, 2 East, 2-27 (o) ( t. Derby, 2 V< 117 THE LAW OF LTEA. 108 2. Though it is a general rule of law, that a fac- , where ° ° ' there is tor has alien upon all goods consigned to him by a special his principal for sale : yet if goods are deposited men t." with him for that purpose, and there be a special agreement between him and his principal, that he shall pay over the proceeds when the sale is effect- ed, he will have no lien upon those goods, if not sold, for the balance of his general account accru- ing upon other articles : the express stipulation in this case preventing the application of the general rule of \si\\-.(p) And though a factor has a lien upon the proceeds of goods sold for his principal, where he is in actual advance to him, yet if he en- ters into a special agreement with his principal for a particular mode of payment,^) or have notice of a special agreement between his principal and a third person as to the application of the money produced by the goods ; he shall in neither of these cases be entitled to a lien on that money. Ac- cordingly, *where a factor made a general accept- * 109 ance of a bill drawn upon him by his principal, payable out of the produce of goods in his hands after discharging prior acceptances, and upon the principal becoming bankrupt, the payee brought an action for money had and received against the factor : it was holden, that having accepted the bill generally, he could not refuse to pay it on account of the balance due to him ; and that if he meant to reserve his own balance, he should have made a (/») Walker v. Birch, 6 T. R. 258. "" Per T.il Eldon, Cowell v. Simpson, 16 Ves. jun. 28Q, b°> 109 THE LAW OF LlEiN. special acceptance.^ So, too, where A. agreed to sell goods to B. to be accounted for by the lat- ter in part as a satisfaction of a demand which he had upon the former, and C. with notice of this agreement undertook to sell the goods as factor ; it was determined that he could not retain the pro- duce for a general balance due to him from A.(s) 3. A factor has no lien on the goods of his prin- cipal for debts which accrued before his character of factor commenced. Accordingly, where a ba- lance was due from a principal to his factor for goods sold by the latter in his own name to the former, before the relation of principal and factor 1 1G Existed between them, and on account of another employer, it was decided, that the factor could not en account of such balance retain goods which, had been placed in his hands by the principal and factor commenced between them.(tf) 4. A factor can acquire no lien on goods which have been consigned to him after the commission of an open(?/J act of bankruptcy by the consignor, though the factor have advanced money on the i Vlabar v. Massias, 2 Bla. R. 1072. ) VVeymouth v. Boyer 5 Ves. jun. 416. , Houghton v. Matthews, 3 Bos. 8c Pul. 485. Si cording to the decisions of Copland v. Stein, the factor could ■ equiri a lien upon goods consigned to him, even after the conv m <>f a. secret &c\ of bankruptcy by the consignor : and as the law then slood no contracl made by a bankrupt after the act of bankruptcy secret, was valid against the assignees, except in the epted by 1 Jac 1. c 15. s. 14. 21 Jac. 1. c. 19. s 14. and 0. -. c. ;>2 s. 1. Hut the law upon this subject is very inateviallv- • -I by 16 vco. 3. c 135. s 1 ante Chap I '• TE LAW OF LIEN. 110 credit of the consignment, the legal effect of such act being to enable the assignees to rescind all contracts made by the bankrupt after the commis- sion of it, except in particular cases provided for fey statutes, within the provisions of which this case is not comprehended.faj *5. According to the general rule of law with * 1 1 ] sespect to liens where the goods of the principal do not come into the actual possession of the factor, he can acquire no lien upon them, even though he has accepted bills upon the faith of the consign- ment, and has paid part of the freight. (y) Thus in the case of Kinlock v. Craig, where the factor had accepted bills drawn on him by the principal, on the faith of consignments agreed to be made by the principal to the factor, and both of them be- came bankrupts before a cargo consigned came into the actual possession of the factor, who, after he had stopped payment, at first refused to accept the goods, but afterwards, and before he had com- mitted any act of bankruptcy, paid part of the freight : it was determined that his assignees had no property in the cargo, and could not recover the produce of it from the assignees of the principal : they having sold it and received the purchase money. 6. As by the general rule of law that liens can - not exist without possession, the lien of a factor cannot attach on goods which do not come into br?: (x) Copland v. Stein, 8 T. R. 199. (y) Kinlock v. Craig-, 3 T. R. 119, 783. 4 Bfro P C S- C Ill ITJE LAW OF LIEJS. possession : so in conformity to the same rule, hts 1 12 lien *cannot continue on the goods, so as to enable him to maintain trover for them at law, after he has parted with possession of them to his princi- pal.^) 113 *Lien of Farrier. As a farrier is from the nature of his employ- ment (which is one of those, the exercise of which the law considers necessary to public convenience,) under a legal obligation to shoe the horse of any one who requires him so to do, if he has sufficient materials for the purpose, and an adequate reward (r) Kruger v. Wilcox, Ambl. 252. Godin v. London Ass. Co Burr. 494. Per Buller, J. 6 East, 25, in notis. The decision of Lord Hard- wicke in Snee v. Prescott, 1 Atk. 2-15, may appeal' to be at variance with this rule ; but from the statement and explanation of that case given by Buller in Lickbarrow v. Mason, 6 East, 25 in notis, it appears to have turned chiefly upon the different notions entertained at that time as to what constituted a transfer of the property, rather than upon any difference of opinion with respect to the non-continuance of the common law lien, after the possession of the property had been once clearly relinquished. In equity, however, the goods may in some cases be followed, and a specific lien is allowed to remain on them for the charges which the factor has incurred in respect of them, after they have come into the possession of the principal; see Kruger v Wilcox, Ambl. 252 Thus where a factor purchased goods for his principal, and paid the vendee for them, and sent them to his princb pal, and then drew a bill of exchange on the latter for the amount: which was Bent hack protested, (the principal having, after the re- ceipt of the goods, In. ©me bankrupt,) it was holden to be a specific lien on the goods, and not suffered to go for other debts, until the price of ill' in was paid, Exparte Emery, 2 Ves. 674. THE LAW OF LIEN. 113 is offered to him.(a) He is in recompense for this obligation entitled to a lien upon the horse for the price of his shoeing ; and unless that price is ten- dered or paid, an action of trover will not lie against him for refusing to deliver the horse.(6) Whether a farrier may detain a horse for the trouble and expense of curing it of any disorder and keeping it during the cure, has never been de- cided ; but if the rule laid down in the cases ex parte Deeze, and ex parte Ockenclen be law, that every ^tradesman has a lien upon property entrust- * 114 ed to him in the course of his trade, for the trouble or expense he may have incurred in the execution of the purpose for which it was entrusted ; it should seem, that a farrier is entitled to a lien, as well for the curing and keeping, as for the shoeing the horse. If, however, the farrier enter into a special agreement for the payment of a specific or a reasonable sum for the cure and keep of the horse, he certainly will have no lien upon it, such an agreement being a complete waiver of the right, if he was legally entitled to itfc) (a) 21 H. 6. 55,56. Keilwood, 5a Lane v. Cotton, 1 Ld. Bayra.654- S. C 12 Mod. 484. 11 Mod. 16. 1 Salk. 18. (6) Bac. Ab. Trover, (E) p 694. But see judgment of Lord Ellen. lorough, Rushfortli v. Hadfield, 7 East, 229. Ld. Ellenborough appears, however, to be speaking only of general liens. (c) Brennan v. (Bifrfirt, Sav. 224. Sehv, N". P 1289 and see ante, t * 1 14 THE LAW OF LIEiS; Lien of Fuller, It has never been specifically^^ decided that fullers in general have any sort of lien. But it ap- pears that by the particular custom of the city of Exeter, they have there a lien upon cloth deliver- * 1 15 ed to them to be *fulled, not only for the work done upon the same cloth, but for a general balance due from the owner in the course of trade. (e) Lien of Innkeeper. The common law of England having considered it necessary to public convenience, that every per- son who undertakes to keep a common inn,(«) should be under an obligation to receive and afford proper entertainment to every one who offers him- 116 self as a guest,{7>) if there be ^sufficient room for (d) According- to the rule laid down ex parte Deeze, 1 Atk. 228. all tradesmen have a particular lien. (e) Sweet v. Pym, 1 East, 4. ((() A person who takes in lodgers to lodge and board in his house.. andleta out stables, is not an innkeeper. Parkhurst v. Foster, 1 Salk. 387. But it is not necessary, to constitute a common inn, that there should be a sign before tlie door of the bouse. Dalt. c. 7. (/,) Y. R. .5 Ed. 4. fol. 2. 22 Ed. 4. fol 19. S. P. Keilw. 50. Lane v. Cotton, 12 Mod. 484. 1 Ld. Raym. 653. & C Yorke v C.renaugh, Ld- Raym. 866. Balk. 888. 8. C. Kirkman v. ShaWcross, 6 T. R. U. Naylorv. Mangles, 1 Esp. It. 109. Fortcscue de Laud. 82. in notis. 3 Bla. Com. 165. Rul. N. P 45. If one who keeps a common inn, refuse either to receive a traveller as a guest Into his house, or to provide him with XHE LAW OF LIEN. 116 him in the inn,(c) and no good reason for refusing him ;f d) has in compensation^ f<^ the burden which *it has thus imposed, allowed the innkeeper * 117 the privilege of detaining the person of the guest himself,(/) and, it seems, his goods,(gJ until he victuals and lodging upon his tendering him a reasonable price for the same, he is not only liable to an action on the case at the suit of the party grieved, but may also be indicted and fined at the suit of the king. 1 Hawk. 225. It is said too, that he may be compelled by the constable of the town, or by a justice of the peace to receive and en- tertain such person. Dalt. c. 7. Burn's Justice, tit. Alehouses, and see Y. B. 5 Ed. 4. fol. 2. (c) 1 Ld. Raym. 654. Bennett v. Mellor, 5 T. R. 275. (d) 1 Ventr. 33S. 3 Bla. Com. 165. (e) Yorke v. Grenaugh, Ld. Raym. 866. Naylor v. Mangles, 1 Esp. R. 109. Other reasons have been assigned as the ground of the inn- keeper's lien by the common law. In the case of Jones v. Thurlow, 8 Mod. 172. the court said this custom was founded on the hardship of the innkeeper's case to sue for every little debt, or the greater hard- ship that he may not know where to find him that was his guest after he is gone. In Bac. Ab. tit. Inns, the reason given for the innkeeper's power of draining without a special agreement for that purpose is. ♦batmen who get their livelihood by the entertainment of others, can- not annex such a disobliging condition that they shall retain the party's property in case of nonpayment, nor make so disadvantageous and im- prudent a supposition, as that they shall not be paid. But the reason given by Ld. Holt in the case of Yorke v. Grenaugh, and by Ld. Ken- yon in Naylor v. Mangles, and which I have adopted in the text, appears to be the only true and original foundation of the innkeeper's lien. For there would be no great hardship in being obliged to rely on the credit of his guest, if he was not likewise obliged to receive and en- tertain him. (/) Forteseue de Laud. p. 82. Bac. Ab. tit. Inns. Burn's Just, tit Alehouses. (g) Forteseue de Laud. 82. n. b. Hawk. V. C. B. 1. c. 78. s. 8. c. 80 s. 6. Cro. Jac. 609. Yorke v. Grindstone, 1 Salk. 388. Wood C. L. 529. Dalt. p. 3. and see 11 Sc 12 W. 3. c. 15. s. 2. I have said it seems, be- cause there are some authorities to the contrary, see 1-Bulst. 207. Bac Ab. tit Inns. Burn's Just, title Alehouses. The weight of authority appears, however, to be clearly on the affirmative side ; and from the 117 THE LAW OF LIEN. has discharged the expense of his own lodging and faod, and his horse, until he has paid for its pro- vender and stabling.(A) And the mere act of leav- ing the horse in the stable of the inn is sufficient to constitute the person leaving it a guest ; because the innkeeper derives a profit from the meat con- sumed by the horse.(i) And it is not necessary in order to entitle the innkeeper to exercise this right *118 of detainer, that he should make *a previous de- mand of payment.(/c) Nor will the want of title in the guest deprive the innkeeper of his lien upon the horse ; for the obvious reason that he is obliged to receive it from the guest without enquiring into his title. And, therefore, though it should be prov- ed to have been stolen by the person who left it, the innkeeper Avill still be entitled to retain it against the real owner, until its keep is paid for.(Z) But the lien to which the inkeeper is thus en- titled by the common law, is only a particular lien upon the thing itself in respect of which the debt is incurred ; and, therefore, an horse committed t© an innkeeper can be detained only for its own meat, words of the statute 11 and 12 W. 3. c. 15. s. 2. the legislature seems to have been of that opinion. (//) Y. B. 5 Ed. 4. fol. 2. Yelv. 67. ami see Robinson v. Walter, 3 Bulstr. 268. Yorlce v. Oeenaup:h, Ld. Raym. 866. Jones v. Thurlow, 8 Mod. 172. Ex parte Ocltenden, lAtk. 286 Fortescue de Laud. p. 82 note(b.) Bui X. P. 48. (,) Lane v. Cotton, 12 Mod. 484. York v. Grindstone, 1 Salic. 38P - Holt, ('!). J. dissentient.'. (fr) Yorke v. Grenaugh, Ld Ravin. 867. Salk 088. S 6. \ni- note (fc). THE LAW OF LIEN. 118 and not for a debt previously incurred by the owner for the meat of any other horse. The chattels in such case being in the custody of the law for the debt which arises from the thing itself, and not for any other debt due from the same party ; for the law is open for all such debts, and does not permit private persons to make reprisals.fmj *And if the innkeeper, waiving the privilege * 1 19 which the law allows him, give the guest credit, and suffer him and his horse to depart without pay- ment, he can never afterwards detain either guest or horse on the same account, and will have no other remedy but his action at law.(w) Or, if the innkeeper make a special agreement with the guest for payment, it will be considered as a waiver of his lien, and his only remedy will be to sue upon the agree ment.(o) If the owner neglects or refuses to redeem a horse detained, the innkeeper cannot sell(p) or use(q) it ('though it should have consumed double (m) 1 Bulstr. 207. Bac. Ab. tit. Inns. Burn's Just, title Alehouses. («) Jones v. Thurlow, 8 Mod. 172. Warbrook v. Griffin, 2 Brownl, 254. Jones v. Pearle, 1 Str. 557- Per Buller, J. Lickbarrow v. Mason, 6 East, 25. in notis. (o) Y. B. 5 Ed. fol. 2. Yelv. 67. (/») Jones v. Thurlow* 8 Mod. 172. Jones v. Pearle, 1 Str. 556. Sel Ca. 125 This point seems to be decided by the case of Jones v. Pearle. but the contrary was formerly hold en to be law; see Case de Hoteler, Yelv. 67- Where it was laid down by Popham, Ch. J. and agreed to by the whole court, that the horse might be sold when he had eat out his value upon a reasonable appraisement, if there was no special agreement. (g) Bac. Ab. title Inns. Burn's Just. tit. Alehouse 14 120 119 THE LAW OP LIEN. t its value) by the general custom of the realm. But by the particular customs of London and Exeter, when such *horse has eat out its price, the inn- keeper may upon the reasonable appraisement of four of his neighbours sell it, or take it as his own.(r) The same regard to the proper accommodation of travellers which gave rise to the obligations un- der which innkeepers are placed by the common law, partly induced the legislature in some mea- sure to restrict the lien, which that law has given them, by 11 & 12 W. 3. c. 15. s. 2. by which it is enacted, " that if any innkeeper or alehousekeeper shall sell any ale or beer in any vessel not signed, stamped, or marked according to the provisions of the preceding section of that act, to any traveller or other person, or if in giving any account or reckoning in writing, or otherwise, such innkeeper or alehousekeeper shall refuse to give in the par- ticular number of quarts or pints of ale or beer for which the demand is made on such account : it shall not be lawful for any such innkeeper or ale- housekeeper for default of payment of such reck- oning to detain any goods, or other things belong- ing to the person from whom such reckoning shall * 121 be due, *but he shall be left to his action at law for the same, any custom or usage for the same to the contrary in any v\ise notwithstanding." ■ \|.. end, 3 Bnlstr. 2T1. Bac. Abr. tit. Inns. THE LAW OF LIEN. 121 Lien of Insurance Broker. Insurance brokers have a lien upon the policies of their employers in their hands, and upon the money received by them upon those policies, not only for the amount of their commission and the premiums of the policies themselves, but also for a general balance due from their employers.(a) And if the possession of the policy be relinquished to the principal, and again obtained from him by the broker under pretence of receiving the mono from the underwriters, but really with a view to hold it as a security, his lien upon it will revive, though the loss be not adjusted by him, until after the bankruptcy of his employer ; provided the pos- session of it be regained before that event has taken place.(6) He will also be entitled to the *same lien upon the money received upon an in- *ro9 surance effected by order of his principal before the bankruptcy of the latter, though the loss do not happen until after it.(c) But if an agent employ an insurance broker to effect an insurance for his principal, and the bro- ker know that it is for the principal, he can upon the bankruptcy of the agent have a lien upon the policy in his hands only for the amount of the (a) Whitehead v. Vaughan, Co. B. L. 566. Parker v. Carter, Co. B. L. 567. (b) Whitehead v. Vaaghan, Co. B. L. 566, (c) Parker v. Carter, Co. B. L. 567 122 THE LAW OF LIEN. premium and commission upon the same, and not for a general balance due to him from the agent ;(d) though a larger balance is due from the principal to the agent, and the former has not paid the latter any thing for getting the policy effected.fej And if an agent, without naming his principal, effect an insurance in his own name with his usual broker, but inform the broker that the property is neutral, and warranted to be so, such information will be sufficient notice to the broker, that the insurance is not on account of the agent, to deprive the for- mer upon bankruptcy of the agent of any lien upon * 123 *the policy for a general balance due from such agent.(/) These cases, it should be observed, deprives the broker of his general lien for a balance due from the agent only, where he is aware, that the party with whom he contracts acts merely as the agent of a third person. But the case of Lanyon v. Blanchard, 2 Camp. R. 597. goes still further, and deprives the broker of his general lien, though he is ignorant of the relation in which the agent stands, and contracts with him as a principal. In that case where an agent employed to effect an in- surance on goods represented himself to the insu- rance broker, who effected the insurance for him, as the owner of the goods. It was determined, that the insurance broker could not retain the po- ( upon ■• subsequent promissory note, the master of the rolls decided, that hi was mit entitled so to do against the other creditors. (/) If the ad he secret the transact ion is not void unless it takes place within two calendar months of the (.late of the commission, 46 Geo. 3> j s. 1 THE LAW OF LIEN. 133 bankruptcy, or with intent to give the pawnee a fraudulent *piefereiice in the event of his bank- * 134 ruptcy.(&) 2. Where the goods are pawned upon an usuri- r ous loan, no lien can be acquired by the pawnee for more than what is fairly due to him, the pawnor being allowed in such case to recover them in an action of trover upon tendering that sum ;(/) for where contracts are prohibited by positive statute for the sake of protecting one set of men from ano- ther, the party injured by the contract is not con- sidered as standing in pari delicto ; and in fur- therance of the statute is allowed, after the trans- action is completed, to bring his action, and defeat the contract, where money has been paid upon itj by an action for money had and received, and where goods deposited, by an action of trover.(m) But as these are equitable actions, before the party can entitle himself to recover upon them he must pay or tender the other party what is really clue to him. And it has accordingly "been decided, that * 135 though the loan be usurious, the pawnor cannot recover the goods pawned in trover, without first tendering the sum really advanced.(«) And in (k) Wilson v. Balfour, 2 Campb. R. 579, Tamplin v. Diggens, 2 Campb. 312; and see ante, chap. 4. (Q Astley v. Reynolds, 2 Str. 915. Fitzroy v. Gwillim, 1 T. R. 153. (m) Moses v Macferlan, 2 Burr, 1011. Dale v. Toilet, 4 Bun-. 2133. Clarke v. Shee, Cowp. 200. Smith v. Bromley, Doug 1 . 696. Lowry v. Bourdieu, Doug. 467. (n) Fitzrey v, Gwillim, 1 t. R, 153 135 THE IAW OF LIF.N. conformity to the principle(o) of the cases in whicij the recovery of money paid upon usurious con- tracts has been sought by actions for money had and received, and in which only the surplus be- yond the legal interest has ever been allowed to be recovered, legal interest should also be tendered to the pawnee in an action for trover for goods pawned upon an usurious loan.QjJ 3. Neither can the pawnee acquire any lien upon *136 goods(<7) pawned without the *authority of the owner, though the want of title in the pawnor was unknown to the pawnee at the time he received the pledge. (r) For it is a principle of the law of Eng- (o) That the plaintiff shall only be allowed to recover so much as the defendant is not entitled in conscience to retain. (/;) See cases ante note(m). (9) Excepting pledges of such goods as are placed upon the same footing as money, as bank notes, notes payable to bearer, and bills of exchange endorsed, and other securities, the legal interest in which by the law merchant passes by endorsement and delivery, and which if passed to a bona fide holder for a valuable consideration without no- tice, cannot be recovered by the original owner. Salk. 126. Miller v. Race, 1 Burr. 452. Grant v. Vaughan, 3 Burr. 1516 1 Bla. R. 485. Peacock v. Rhodes, Doug. 682. Solomons v. Bank of England, 13 East, 135 n. a. Lowndes v. Anderson, 13 East, 130. King v. Milsom, 2 Campb. 5. India bonds too, which before the statute 52 Geo. 3. c. 64. were not upon this footing, see Glyn v. Baker, 13 East, 509. are by that statute made assignable and transferable by delivery of possession. (r) Marsden v. PanshaU, t Vern. 407. Daubigny v. Duval, 5 T. R 604. De Bouchout v Goldsmid, 5 Ves. jun. 211. Maans v. Henderson, 1 East, 337. Vin. Ab. lit. Pawn.(E) Where chattels are pledged by a person who js not the owner, but a mere bailee, though the pawnee nipposes the pawnor to be the true ownor, and has no reason to think otherwise; a court of equity will oblige the pawnee, if he admits the r i 1 1 < • ol'tlit trU( owner, and only claims the value for which the chat- ■ il flrerc pledged, to make suifi a discovery and give such a descrip- THE LAW OF LIEN. 136 land as well as of the civil law, that where a person is acting ex mandato, those dealing with him must enquire into the extent of his authority. (s ) Ac- cordingly *vvhere a factor or broker pawns the * 137 goods of his principal, the pawnee cannot retain them against the principal for the money advanced upon them,(?) though he was ignorant at the time of the pledge of the relation in which the pawnor stood to his principal, and contracted with him as the owner of the goods ;(w) and though there is the formality of a bill of parcels and receipt ;(a) nor will the pawnee acquire a lien against the principal, where the factor or broker makes the pledge of the goods by endorsement, and delivery of the bill of lading,(?/) or by transferring *the goods to the * 138 tion of the property, as will enable the true owner to bring an action at law for it. Strode v. Blackburne, 3 Ves. jun. 222. (*) De Bouchout v Goldsmid, 5 Ves. jun. 211. and see judgment of Lawrence, J. Newson v. Thornton, 6 East, 17. Upon this principle a transfer by an executor of the assets of the testator by way of pledge immediately after the death of the latter, to secure a debt of the exe- cutor, and future advances to be made to him, may be set aside in equity by the general legatees, where the creditor to whom the pledge is made, is guilty of gross negligence in not enquiring into the autho- rity of the executor to dispose of the assets in that way ; though it do not appear, that he was aware of that want of authority. Hill v. Simp- son, 7 Ves. jun. 152. Taylor v. Hawkins, 8 Ves. jun. 209. and a pecu niary or residuary legatee may have such a pledge set aside, though it be only for money advanced at the time to the executor, if it appears, from the circumstances of the case, that the pawnee had knowledge of an intended application of the money not conformable to or connected with the character of executor. Maclcod v. Drummond, 14 Ves. jun ; 353. 17 Ves. jun. 152. (t) Cases cited, ante, note(r). (;/) M'Combie v. Davics, 6 East, 533. (x) Paterson v. Tash, 2 Str. 1178. (y) Newsom v. Thornton, 6 East, 17- 2 Smith's R. 207. S.C. 138 THE LAW op LIEN. pawnee's name, where tL-v arei;i the king's ware- house, (z) any more than vvhtid the factor or broker makes it by delivery of the goods themselves to the pawnee.(a) In conformity to the same general rule, where goods are stolen and pawned, the owner may 139 maintain trover against the ^pawnbroker, though the 'latter was ignorant of their being stole n.f b) (i) M'Combie v. Davies, 6 East, 538. 2 Smith's R. 557- S. C. (a) But a banker in London to whom bills are paid by a customer who keeps his accoimts with him, may pledge them to a third person as a security for money to be advanced to the banker, though the banker at the time of the pledge was indebted in a considerable ba- lance to his customer ; provided that circumstance was unknown to the pawnee Collins v. Martin, 2 Esp. Jl. 520. And where a principal seeks to recover the value of his goods, which have been pledged by his factor in an action of trover, though no tender to the pawnee is ne- cessary ; yet if the factor is in advance to the principal, it seems that the latter must tender to the former what is due to him, before he can recover in such action from the pawnee. Daubigny v. Duval, 5 T. R. 504. where the pawnor has only a limited estate or interest in a thing, he cannot giv e a greater estate or interest to the pawnee by pledging it lo him. And therefore, where a tenant for life of plate pawned it to a pawn-broker, and died ; it was adjudged, that though the pawn-broker had no notice of the limited nature of the pawnor's interest in the plate, he could have no lien upon it against the remainder-man. Hoare v. Parker, 2 T. R. 376. and see ex parte Nesbitt, 2 Scho. and Lcf. R 279. ace. (6) Though goods stolen and sold in market overt cannot be recover- ed from the purchaser, except under 21 II. 8. c. 11. where the owner prosecutes the felon to conviction. Ilorwood v. Smith, 2 T. R. 750. There is no market overt for pqpiming. See Hoare v Hartopp, 3 Atk. 41 and Packer v. Gillies, Guildhall sittings after Trinity Term, 1SJ6, cited 2 Campb. R, 336. n. in which case trover being brought against a pawnbroker for goods pledged with him which had been stolen from the house of the plaintiff, and pawned by a woman who was tried for the felony, but acquitted on the absence of a materia] witness; Lord EUenborough held, that the action well lay against the pawnee, and the plaintiff had a verdict. N. B. It is provided by stat. 1. Juc 1 c. 21. that TE LAW OF LIEN. 139 Or if goods are placed by the owner in the hands of another for the purpose of safe custody, and pawned by the latter to a third person, the pawnee cannot retain them against the owner.(cJ Or if the finder of goods pledge them the owner may retake them.(d) But though no lien can be acquired upon goods pawned without the authority of him who has the general property in them, even though the pawnee is not *awarc of the pawnor's want of authority to * 14Q dispose of them in that manner, yet where goods are obtained under false pretences, and pawned without notice of the fraud to the pawnbroker, and on the conviction of the offender, the original owner get possession of his goods again ; the pawnbroker may maintain trover against him to recover them back.(e) 5. The pawnee has such an interest in the when pawn that he may assign it over(f) to a third per- piwn°ee son, and the assignee will be subject to an action of detinue, if he detains it after payment or tender of the money by the owner.fg) And where the pawnee of goods pawned them over to another for a larger sum than that for which the owner pledg- ed them to him, and afterwards borrowed more the sale of any goods wrongfully taken, to any pawnbroker in London, or within two miles thereof, shall not* alter the property. (c) Hoare v. Hartopp, 3 Atk. 44. (d) Bro. Pledges, 28. Vin.Ab.tit Pawn.(E.) (e) Parker v. Patrick, 5 T. R. 175. (/) Moor v. Benham, Owen, 124. Demainbvay v. Metcalf, 2 Vern. 691 698. S. C Mason v. Lickbarrow, 1 H. Bla. 360. Yelv. 178 Contr (g) Yelv. 178. Cro. Jac. 244. 16 is trans- ferable. 140 THE LAW OF LIEN. money on promissory notes of the second pawnee, the court of chancery would not suffer the owner to redeem from the second pawnee, without paying him the whole of the money which he had ad- vanced upon the goods and the promissory notes.(h) 14d *g. Upon tender of the money advanced upon when ■ * ■■.-■' ;. ahest- the pawn, by the pawnor or his executor, the hen of the pawnee is immediately divested ; and the property, notwithstanding his refusal to part with it, is instantly reduced to the pawnor or his execu- tor ; and they may bring trover for it.(i) But the » 142 pawnee will not lose the *benefit of his lien by an (/;) Demainbray v. Metcalf, 2 Vern. 691. The reporter adds a quaere to the decision, and it seems to be at variance with those of Hoare v. Parker, 2 T. R. S76. and Marsden v. Panshull, 1 Vern. 407 and others ; the principle of which is, that the pawnor cannot create a greater in- terest in the thing pawned than he himself possesses. It seems like- wise tor be ut variance with the rule laid down in Ratcliffv. Davis, Yelv. 178. that where the pawnee has delivered over the pledge to a third person, even on consideration, a tender need not be made by the owner to the latter According however to the report of Demainbray v- Met- calf, in Prec. in Chanc. 419. the day limited for redemption by the owner of the jewels, from the first pawnee, was elapsed, and the jewels had become at law the absolute property of the latter : when the former applied to equity to be allowed to redeem, which it ap- pears may be done, as well in the case of a personal pledge as of a mortgage. And if this statement be correct, the owner having lost his legal, and having only an equitable right to redeem, the conditions an- nexed 1o this redemption in equity (by which an injury to a third party is prevented) will no1 appear unreasonable. (i) Yin. Ah. tit. Pawn. (E.) 2 Salk. 522. 1 Bulstr. 29. 1 Rol. R. 129. In the caseofRalcliffe v. Davies, Yelv. 178. Cro. Jac. 244. it was held by the majority of the courl that ilie pawnor might redeem from the utrix of the pawnee, bul that th« executor of the pawnor could redeem THE LAW OF MEN. 142 execution upon the goods of the pawnor for a debt recovered from him, subsequent to the act of pawning. So if a man deliver goods in pledge for a loan of forty pounds, and a sum to that amount is afterwards recovered from him in an ac- tion of debt by another person : those goods shall not be put in execution until the forty pounds are paid.(&) Nor shall the pawnee be deprived of a lien on the goods pawned, by the pawnor's being after- wards attainted of felony ; and the king shall not in that case have the goods without first paying the sum for which they were pledged. (/) But the king may, if he choose, redeem them by paying the money. (m) Lien of Taylor. A taylor has by the common law, a particular lien upon a coat or other garment *for the price of * 143 making it, and is not liable to an action of trover for refusing to deliver it up to the person from whom he received the materials, unless the price has been either paid or tendered. (a) But he has (h) Vin Ab. Tit. Pawn. (A.) 3. (I) Bro. Pledges, pi. 31. Vin. Ab. Tit. Pawn. (A.) 1 Bulst. 29, O) Yelv. 178. (a) Y. B. 5 Ed. 4. fol. 2. Yelv. 67. Cooper v. Andrews, Hob. 42. Chapman v. Allen, Cro. far. 271. Hussey v. Christie, 9 East, 4J.1 6 Bac Ab 694. 148 THE LAW OF LIEN. no power to sell the garment upou default of pay- ment.^) Lien of Vendor. A vendor of property has by the common law, a lien upon it as long as it continues in his posses- sion, and the vendee neglects to pay or tender the price agreed upon for it. For though the general property in the thing sold is vested in the vendee by the sale, a lien or special property, which will be a good defence in an action of trover, remains in the vendor/c) Unless indeed it appears from (/>) Yelv. 67. (c) Y. P>. 5 Ed. 4. foil 2. S. P. 22. (R.) 4. fol. 49. Hob. 41. Mason v. Lickbarrow, 1 II. Bla. 363. 2 Hla. Com. 448. A part payments, it seems, Would not divest the lien, see Hodgspn v. Loy, 7 T. R. 440. Poize v. Wray, 3 East, 93. In Noy's Maxims, SS recognized by Ld. Bllenborough, Ch. J. in Hinde v. Whitehouse, 7 Past, 571. It is said, if I sell my horse for money, I may keep him Until I am paid ; but I can- not have an action of debt until he be delivered.; yet the property of the horse is by the bargain in the bargainor orbuyer. But if hedopre- tendi i - me my money, and I do refuse it, he may take the horse, or have an action of detainment. .'1ml if the horse die in tny stable, be- 'ween the bai ■wles, l ". ;-. it ji'S. (i) Newsoiii v. Thornton, East, 17 STOPPAGE IN TRANSITU- 159 But tne benefit of that right does not extend to cases in which the parties cannot be considered as standing in the relation of vendor and vendee to each other, either actually or substantially ; and, therefore, where there is a contract for the sale of goods immediately between the principal and the vendor, and the factor, or agent is merely a surety for the price, he cannot stop the goods in transitu upon the bankruptcy or insolvency of his principal. This was decided in the case of Siffken and an- other, assignees of Browne, a bankrupt, v. Wray, 6 East, 371. the facts of which were these : Browne, a merchant in London, ordered goods to be shipped to him by Dubois and Co. his correspondents at Dantzic, directing them to draw for the amount on Fritzing at Hamburgh, (who had agreed to accept bills on receiving a commission on the amount,) and to transmit the bills of lading and invoices to Fritzing, who was to forward them to Browne, in London. The goods were accordingly shipped, and Fritzing accepted the bills, and on the receipt of the bills *of lading, (which were made out to * 169 the order of the shippers and not endorsed,) from Dubois and Co. transmitted them to Browne, who received them together with the invoices and letter ©f advice five days after he had committed an act of bankruptcy. Fritzing's acceptances were af- terwards dishonoured, and Dubois and Co. were consequently obliged to retire and take up the bills of exchange. Wray, the agent of Fritzing in Lon- don, procured the bills of lading from Browne, IS 160 STOPPAGE IN TRANSITU. upon an undertaking that he would dispose of the goods on their arrival to the best advantage, and apply the proceeds to the discharge of the bills drawn against them, and having afterwards obtain- ed possession of the goods on their arrival, sold them, and paid the proceeds into the court of chan- cery, to abide the event of an action directed by that court to be brought by the assignees of Browne against Wray. Dubois and Co. having been ap- prized of what was done by Wray, wrote a letter signifying their approbation of his conduct, and claiming the proceeds of the goods. The action directed by the court of chancery having been brought, the court of king's bench were of opinion 161 that the assignees of Browne were entitled to *the proceeds, because Fritzing did not stand in the re- lation of vendor of the goods to Browne the bank- rupt, but was merely a surety for the price, and consequently was not entitled to stop them in tran- situ; and though Dubois and Co. were the real vendors of the goods, yet Wray could not be con- sidered as their agent, in this transaction, not hav- ing received any authority from them until after he had taken possession of the goods ; and that even supposing him to have been their agent be- fore, yet there was no adverse taking possession of the goods, they having been taken under an ami- cable agreement with Browne after his bank- ruptcy. In conformity to (he general rule that none but those who stand in the character of vendors can exercise the right of stoppage in transitu, a per- STOPPAGE IN TRANSITU. 161 son who has merely a lien upon goods, for work done upon them, or trouble or expense incurred about them in the course of his trade, cannot stop them In their transit to the owner, for the satisfac- tion of his hen.(k) Though the consignment of the goods must be " c ^ ss f £ on credit, at least for some part of the price, to en- r y that title the consignor to *stop them in transitu ; yet * \Q2 while any part of it, however small, remains due, si ^J- he is at liberty to exercise the right, and therefore should the circumstance of the vendee having paid in part crtdit. for the goods,(7) or of the vendor's being indebted to him in part of the V3\ue,(m) will only have the effect of diminishing the vendor's lien pro tanto on the goods, when he has regained the possession of them, and not of *defeating his right of resuming * 163 that possession, before actual delivery to the ven- (k) Sweet v. Pym, 1 East, 4. and see Butler v. Wolcott, 2 N. R. 64. (/) Hodgson v. Loy, 7 T. R. 440. Feize v. Wray, 3 East, 93. (wj) From the cases of Wiseman v. Vandeput, 9 Vern. 203. Hodgson v. Loy, 7 T. R. 440. and Feize v. Wray, S East, 93. it is clear that the vendor's being indebted to the vendee in part of the price of the goods consigned will not defeat the right of the former to stop in transitu ; but it is not equally clear whether the vendor can exercise that right, where he is indebted to the vendee upon the general balance of ac- count of the amount of the price of the goods. In Wiseman v. Van- deput, the debt due from the vendor to the vendee was ordered to be first paid ; and in Hodgson v. Loy, the debt due to the vendee was al lowed to be set-ofF. A distinction, however, was made by Lord Ken- yon, in Smith v. Bowles, 1 Esp. R. 578. between a consignment on a particular account, and a consignment on a general account, the former he thought might be countermanded by the consignor, though he should be indebted to the consignee on the general balance of account to the full value of the consignment, but the latter he decided could not ; and see Kinlock v. Craig, 3 T. R. 119 163 STOPPAGE IN TRANSITU. dee ; and though where the whole price has been actually paid by the vendee, the vendor cannot ex- exercise the right of stoppage in transitu upon the bankruptcy or insolvency of the latter ; yet the cir- cumstance of the vendee having merely made him- self liable to pay the full price, by the acceptance of bills to the amount, and the endorsement of them over to third persons, will not divest the ven- dor of the benefit of that right :(n) and if such bills should be proved under the commission of bank- • 164 ruptcy issued against *the vendee, it will only be considered as a payment as far as the dividend will go.(o) if the If the bill of lading be endorsed, and transmitted ment be by the consignor, under an agreement, and in trust demnTfy to indemnify against acceptances, he cannot stop tionai" 1 ' ^ ie g°°d s m transitu, while the trust and object of the consignment remain unsatisfied, nor will the master of the vessel in which they are conveyed be justified under such circumstances in redelivering (n) D'Aquila v. Lambert, Ambl. 399. Lickbarrow v. Mason, 2 T. R. 63. In Kinlock v. Craig-, 3 T. R. 119. the consignee who was a factor had accepted bills to the amount of the purchase money, and both were bankrupts: Ashurst, J. in delivering the opinion of the court, said, "It i« contended that the consignor has no right to stop the goods in tran- situ, where the value of them has been paid. I admit the position to be true as between consignor and consigmee : but the facts of the case do not admit of the application of it ; for they have not been paid for, and there is a great difference between payment and a liability to pay. In every instance where the goods arc sent in the way of sale, the party to whom they are sent is liable to pay : but till he has paid, in case of hW failure, the owner may stop them iji transitu. And see Feize v. Wtuy, 3 East, 93. (o) Peize v Wray, 3 Fast. ' . STOPPAGE IN TRANSITU. 164 them to him ;(/?) and if the delivery is to be made only conditionally, and the consignee offers, and is in a situation to perform the condition, the con- signor cannot stop the goods in their transit to the consignee. And where goods are consigned in a ship chartered on the account and at the risk of the consignee, and the bill of lading expresses that the delivery is to order or assigns, he or they paying freight for the said goods according to the charter party ; the goods cannot be stopped by the con- signor upon the consignee's refusing to pay the freight, (that being merely a question between the captain and the consignee,) if the consignee offers to accept bills according to his undertaking, *and is * 166 not in failing circumstances. But if the bill of lading be conditional, and the condition unperformed, the consignor may under such circumstances exercise the right of stop- ping the goods during their transit to the con- signee.^) (p) Haille v. Smith, 1 Bos. & Pul. 563. (q) Walley v. Montgomery, 3 East, 585 *166 STOPPAGE IN TRANSITU. *CHAP. II. How the stoppage of the goods is to be effected. THE courts both of law and equity, are so strongly inclined to favour and assist the consignor, in regaining the possession of his goods, where he is not paid for them, and the consignee is from bankruptcy or insolvency unable to pay for them, and the goods are still in their transit to the latter, that they will allow the consignor to retake the goods, or to prevent their coming into the hands of the bankrupt, or his assignees, by any means which do not amount to felony, or absolute violence. (a) 167 Nor is it necessary in every case, to ^constitute a (a) This doctrine was laid down in Wiseman v. Vandeput, 2 Vein. 203. the first case extant upon the right of stoppage in transitu ; and again in Snee v. Prescot, 1 Atk. 245. and recognized by Lord Kenvon in the subsequent cases of Solomons v. Nissen, 2 T. It. 674. Barnes v. Freehold, 6 T. R. 80. Smith v. Staples, 1 Esp. 578. and by Grose, J. in Feize v. Wray, 3 East, 93. and see Birkett v. Jenkins cited Cowp. 296. A countermand, however, and substitution of a new consignee is most easily effected, where the bill of lading is originally made for delivery to the order of the consignor ; because in that case, the consignor may, if he has reason to suspect the failure of the consignee, or is afterwards apprised of il, Bend another part of the bill of lading to a correspondent at the port of destination, endorsed in blank, or for delivery to him, Abbot, 357. But tlte countermand may also be made on the failure of the consignee, if he ii originally named in the body of the bill of lading See assignees of Burghail v. Howard, 1 Hen. Bla. 365, note (o) STOPPAGE IN TRANSITU. 167 stoppage of the goods sufficient in law to prevent them from being distributable under the commis- sion issued against the consignee, that actual pos- session should be taken of the goods by the con- signor, by corporal touch. Thus in the case of Walker v. Woodbridge, Co. B. L. 494. where the goods were sent by sea, an entry of them, on the part of the consignor, at the custom house, upon the ship's arrival at the place where they were to be landed, in order to pay the customs for them, was considered a sufficient assertion of his right to constitute a valid stoppage. In the case of Nor- they and Lewis, assignees of Leyland and Cragg, v. Field, 2 Esp. R. 613. A claim on the part of the consignors was held sufficient. In that case a quantity of wine was consigned to Leyland and Cragg, and after the arrival of the vessel on board of which it had been shipped, but pending the twenty days *allowed by 26 Geo. 3. c. 5. s. 4. for * ig$ the payment of the duty, the consignees became bankrupts. After the expiration of the twenty days without payment of the duty, the wine was remov- ed into the king's warehouse pursuant to the same statute, by which it is allowed to remain there three months ; during which time the owner may have the wine on paying the duty, warehouse room, &c. but if not paid within the three months, the wine is then to be sold. The day before the ex- piration of the three months, the agent of the con- signors applied for, and endeavoured to obtain pos- session of the wine, but in vain. The wine was sold by public sale at the expiration of the three 168 STOPPAGE IN TRANSITU. months, and the produce which remained after the deduction of the duties, &c. paid into the hands of a broker, against whom the assignees of the con- signees brought an action to recover it ; and Lord Kenyon, before whom the cause was tried, was of opinion that they were not entitled to recover, ob- serving that the courts of late years leaned much in favour of the power of the consignor to stop his goods in transitu, and that it was a leaning in fur- therance of justice. And though Lord Hardwicke had been of opinion, that in order to stop goods in 16*9 ^transitu, there must be an actual possession of them obtained by the consignor, before they come into the hands of the consignee, that rule had been since relaxed ; and it was now held, than an ac- tual possession was not necessary ; that a claim was sufficient ; and to that rule he subscribed. In the present case, the bankrupt had no title to the actual possession until the duties were paid j until then, they were quasi in custodia legis : be- fore the sale the agent for the consignors claimed and endeavoured to get possession ; and that was a sufficient stoppage in transitu in his opinion, to secure the rights of the consignor. The doctrine laid down by Lord Kenyon in this case, was after- wards recognized, and adopted by Lord Ellenbo- r >ugh, in that of Nix v. Olive, sittings at Guildhall, Trin. 1805, Abbott, 377. Where the goods continue in the hands of the carrier, or middleman, a demand by the consignor has been repeatedly held to be equivalent in law to STOPPAGE IN TRANSITU. 169 an actual stoppage of the goods.(6) In the case of Mills v. *Ball, 2 Bos. k Pul. 457.(c) where the *170 goods remained in the hands of a wharfinger, and the consignor, upon information from the consignee that he was insolvent, demanded the goods of the wharfinger as his property, and gave him notice not to deliver them out of his custody : it was deter- mined by the court of common pleas, to be as *suffi- * 171 cient a stoppage of the goods in effect, as if actual possession had been taken of them by the con- signor, and that the wharfinger having upon such demand and notice, undertaken not to deliver the goods, was liable to an action of trover for after- (b) Snee v. Prescott, 1 Atk. 245. D'Aquila v. Lambert, Ambl. 399. Hoist v. Pownal, 1 Esp. R. 240. Bohtlingk v. Inglis, 3 East, 394. Though a claim or demand is a sufficient assertion of his right in the consignor, to constitute a valid stoppage of the goods, possession seems necessary on the part of the consignee, to divest the consignor of his right of stoppage in transitu ; for in the case of Northey v. Field, 3 Esp. R. 613. just cited in the text, a prior claim was made on the part of the consignees, which was held ineffectual, though the subsequent claim of the consignor was determined to be sufficient. And in the case of Snee v. Prescott, the first demand on the captain was made by Julian and Le Blanc, the assignees of the consignee, and not by Pres- cot, the agent of the consignor ; and that the demand was not noticed, as being of any effect in divesting the vendor's right of stopping in transitu ; but the second, made by Prescot, was considered as an effec- tual exercise of that right; and See judgment of Lord Ellenborough, Ch. J. Dixon v. Baldwin, 5 East, 175 Stoveld v. Hughes, 14 East, 308. and see post, chap. III. note. (q) (c) This, it should be observed, is rather a case in which the con- tract is rescinded by the mutual consent of the parties, than a case of stoppage in transitu, which must be adverse, and was decided on the ground that the consignee had countermanded his order ; see judg- ment of Lord Alvanley in Scott v. Pettit, 3 Bos. and Pul 469. 19 171 STOPPAGE IN TRANSITU. wards delivering them to the assignees of the con- signee, contrary to his undertaking-^^) A stoppage of goods either by an agent express- 172 ly authorized for that purpose,(e) *or by a general agent, not particularly authorized, (if the act of the latter be afterwards recognized and confirmed by his principal,^/) will be as valid as if made by the consignor himself. But a stoppage by a third person, who at the time was not an agent of the consignor, and has received no authortity from him for so doing, will not be sufficient, though the act (d) Before the decision of Oppenheim v. Russel, 3 Bos. and Pul. 42. it was doubtful whether a vendor of goods could maintain an action of trover against the carrier, for refusing to deliver them up to him,after no- tice not to deliver them to the insolvent vendee ; see Mills v. Ball, 2 Bos. &. Pul. 457. It is clear, however, from the case of Oppenheim v. Russel, that a vendor, who has a right to stop goods in their transit to the vendee, may support an action against a carrier, who after having the money due for the carriage of the goods tendered him, and notice given to him not to deliver them to vendee, refuses, without offering any con- ditions to deliver them to the vendor. But it seems that if the carrier should, upon reasonable doubt, refuse to deliver up the goods without further authority, or until the circumstances of the case should be as- eertained, his conduct wovdd not amount to a conversion, so as to make him liable to an action of trover by the vendor. Diet. Chambre, J. Mills v. Ball, 2 Cos. & Pul. 457- and see post. Chap. IV. note (r) O) In D'Aquila v. Lambert, Aiubl. 399. it does not appear whether the agent was expresely authorized or not, but his claim was considered sufficient. In Hoist v. Pownal, 1 Esp R. 240. and Mills v. Ball, 2 Boa St Pul. 457. the goods were claimed by agents particularly authorized In Lickbarrow v. Mason, 2 T. It. 63. the goods were stopped by an agent authorized for the purpose, and no objection was made on that ground. (/) Fcize v. Wray, 3 East, 93. in which case the claim was made by an agent acting under a general power of attorney from the vendor, who afterwards confirmed Hi', act of the agent. STOPPAGE IN TRANSITU. 172 of such person be afterwards adopted, and ap- proved of by the consignor; and to render are- sumption by the consignor or his agent, effectual in law, it must be effected with an intention of stop- ping the goods in transitu, and adversely to the consignee ; and if it be made under an amicable agreement with the latter, to sell the goods, and apply the proceeds in discharge of bills drawn by the consignor for the price, it will be wholly inva- lid against the assignees *of the bankrupt con- * 173 signee. These two points were, (as has been al- ready stated) the grounds upon which the case of Siffken v. Wray, 6 East, 371. was decided, the facts of which have been also before detailed. '174 STOPPAGE IN TRAESITU. *CHAP. HI. When the Stoppage may be effected. HAVING shown by what persons, under what nature of contract, and in what manner the right of stoppage in transitu may be effected, it remains only to explain when it may be effected ; and first it is to be observed that this right can only be ex- ercised where the consignee refuses, or is unable, from the situation of his circumstances, to fulfil the conditions of the contract ; for the property is vested in the vendee by the contract, subject only to be revested in the vendor under the existence of such circumstances.fflj Secondly, as the right of stoppage in transitu can only be exercised while the goods are in transitu,(*) and before they are lawfully aliened by the consignee to a bona fide purchaser,(6) the rest of this chapter will be oc- cupied in showing under what circumstances the 1 75 transitus may be considered as continuing, *or de- termined, and the detail of the circumstances un- der which property in transitu may be considered {a) Walley v. Montgomery, 3 East, 585. opinion of Buller, J. 6 East» -17, B. in notis ; ami Bee ante, Chap. I. (A) & (r) (*) Coxev. Harden, 4 East, 211 (/>) Pool Chap IV. STOPPAGE IN TRANSITU, 175 as lawfully and bona fide aliened, will be reserved to the fourth and last chapter. When the transitus is to be considered as continuing or determined. The transitus of the goods can only be deter- mined either by actual delivery of the goods, or what is equivalent in law to an actual delivery of them, to the vendee or his representative.(c) It is, therefore, to *be inquired first, what mode of deli- very to the vendee, or assumption of possession by * 17ft him, or his representative, of the goods, is suffi- cient, or insufficient to determine the transitus; (c) See judgments of Ashurst and Buller, Js. Ellis v. Hunt, 3 T. R. 464. and of Lawrence, J. delivering the judgment of the court, Boht- lingk v. Inglis, 3 East, 381. and ofRooke, J. Oppenheim v. Russel,3 Bos. & Pul. 42. and see Dixon v. Baldwin, 5 East, 175. and next note. It does not appear that the vendor's right to stop the goods in transitu can be defeated by any other means than by a delivery to the vendee or his representative; in the case of Oppenheim v. Russel, it was argued l>y counsel that if the goods consigned, previous to their delivery to the consignees, had been seized by the sheriff under a fi. fa. in satisfaction ef a debt due from them, the consignors, could not, by virtue of their right to stop 'in transitu, have reclaimed the goods from the sheriff, unless notice had been given to the sheriff at the time he seized them, of their claim. But Ld. Alvanley expressed great doubt whether the sheriff could make them absolutely the goods of the consignee by stopping them before they came to his hands ; and see Richardson v. Goss, 3 Bos. & Pul. 119. It has been expressly determined that a con- signor's right to stop in transitu cannot be devested by the seizure of the goods by a creditor of the consignee under process of foreign at- tachment, the vendors being the elder and preferable lien. Smith v. Goss, 1 Campb. R. 282. Upon the same principle the carrier's lien for a general balance due from the consignee cannot be brought forward to defeat the consignor's right of stoppage in transitu. Butler v. Wool- cot, 2 N. E. «4. 176 STOPPAGE IN TRANSITU. and secondly, at what time that possession may be taken by the vendee, or his representative. 1st. What mode of delivery to, or assumption of possession by the vendee, or his representative, is suf- ficient to determine the transitus. There may be a sufficient delivery in law to de- termine the transitus, and devest the vendor of his right of stopping the goods, without their coming to the corporal touch of the vendee, or of his re- 177 presentative.f^J The delivery to the vendee *of the key of the vendor's warehouse in which the goods are deposited, seems to be an effectual de- livery of them for this purpose^/j x\nd if the goods, after being sold, remain in the vendor's warehouse, and the vendee pay him warehouse rent for them, such payment will be a sufficient possession in the vendee, to put an end to the ven- dor's right of stopping them in transitu.^ And (d) In Hunter v. Deal, 3 T. R. 466. Lord Mansfield laid it down that the goods were in transitu until they came to the corporal touch of the vendee. But in Ellis v. Hunt, 3 T. R. 464. Ld. Kenyon, J. said, that ** this was merely a figurative expression, and had never been literally adhered to." And again, in Wright v. Lawes, 4 Esp. R. 82. the same learned Ch. J. observed, " I once said that to confer a property on the consignee a corporal touch was necessary : I wish the expression had never been used, as it says too much." And in Dixon v. Baldwin, Ld. Ellenborough observes, " as to Hunter v. Beal, in which it is said that the goods must come to the corporal touch of the vendee, in order to oust the right of stopping in transitu, it is a figurative expression, and rarely, if ever, strictly true ;" and see cases ante, note (c) (/) In Bills v, Hunt, 3 T. R. 464, Ld Kenyon said, "there may be an actual delivery of the goods without the bankrupt's seeing them, as a delivery of the key of the vendor's warehouse to the purchaser; and ee Copland v. Stein, 8 T. R. 199. ( f) hurry v Mangles, ICampfc, 452 In the subsequent case of STOPPAGE IN TRANSITU. *178 where complete possession *of the goods cannot be taken, from the nature or situation of them, the exercise of such acts of ownership as the circum- stances of the case will permit, seems to be suffi- cient to determine the transitus. Thus in the case of Ellis v. Hunt, 3 T. R. 464. a demand of the goods, and putting a mark upon them by the re- presentative of the vendee, when they had arrived at the end of their journey, was held sufficient to put an end to the transitus. The facts of the case were as follow: Moore, a tradesman in London, ordered a quantity of files from Ellis and Co. ma- nufacturers at Sheffield, and the files were accor- dingly packed in a cask, and sent by a waggon di- rected to Moore, in London ; while the goods were upon their journey, Moore became a bankrupt, and on their arrival in London, and while they re- mained at the inn, the goods were attached by Messrs. Fenton and Co. creditors of the bankrupt, * 1 79 by process of foreign attachment ; after which the provisional assignee under Moore's commission demanded the goods of the carrier, and put his Harman v. Anderson, 2 Campb. 243, it was decided that the purchasers having lodged an order (which he had received, tog-ether with the in- voice from the vendor of the goods) with the wharfinger in whose warehouse they were lying at the time of the sale, to deliver them, and the wharfinger's having transferred them in his books into the name of the purchaser, was sufficient to devest the vendor's right of stopping in transitu, and that the wharfinger was after that bound to hold them as the agent of the purchaser. And it was said by lord Ellenborough, delivering the opinion of the court, that the bare lodgment of the de- livery note with the wharfinger, without an}' tranfer in his books, would have been sufficient to produce the same effect. 179 STOPPAGE IN TRANSITU. mark upon the cask, but did not take the goods away. A few days afterwards Ellis and Co. the vendors, who had previously drawn a bill upon the bankrupt, which was never paid, wrote a letter to the carrier, directing him, in case the goods were not delivered, to keep them in his warehouse, as they had heard that Moore was become a bankrupt. The goods being delivered up to the assignees of Moore when the attachment was withdrawn, an action of trover was brought against them and the carrier by Ellis and Co. and the court decided that the ffoods were not in transitu at the time when Ellis and Co. the vendors, wrote to countermand the delivery of them. The provisional assignee, who stood in the place of the bankrupt, having, before that was done, put his mark upon the cask, and when the goods were thus marked, they were delivered to the commissioners as far as the cir- cumstances of the case would permit ; for being under attachment, the assignee could not then take them away. And even if corporal touch were ne- 180 cessary to defeat the vendor's *right, it took place. And that the bankruptcy of the consignee, which the plaintiff's counsel had argued to be of itself a countermand of the goods, had never been decided to have that eflcctfA) It seems that where the goods when sold are ly- ing at a wharf, and the vendor has given an order to the wharfinger to deliver them to the vendee, the (7i) That bankruptcy is no countermand, see Scott v. Pcltit, 3 Bos. 8t Pul 1G9- Bnhtlingk v. Schneider, 3 Esp. R. 58. STOPPAGE IN TRANSITU. 180 mere weighing them by the vendee would be a sufficient assumption of possession to divest the vendor's right of stopping thcm.(i) A delivery of possession to the vendee or his re- presentative of part of the goods sold by an entire contract, will be considered a sufficient delivery to determine the transitus of the whole. Thus where a merchant at a foreign port shipped 7061 bushels of wheat by the order, and for *the account of a * 181 merchant in this kingdom, to be paid for at a future day, and several bills of lading were accordingly signed by the master of the ship, one of which was immediately transmitted to the consignee, who before the arrival of the ship at the place of desti- nation, sold the goods and endorsed the bill of lading to a third person, and after the arrival of the ship, and a delivery of 800 bushels of the wheat to the agent of the endorsee of the bill of lading ; the consignee became bankrupt without having paid the consignor the price of the goods. The court were of opinion, that the transitus was ended by the delivery of the 800 bushels of wheat, which must be taken to be a delivery of the whole, there appearing no intention, either previous to, or at the time of the delivery, to separate part of the cargo (?) In Hammond v. Anderson, 1 N. R. 69. Chambre, J. observes : it appeared that Hoist *who was a merchant liv- ing at Leghorn, consigned a cargo of fruit to Dut- ton and *Co. at Liverpool, by a ship chartered on *206 their account. The captain signed three bills of lading as usual, one of which was sent to Dutton and Co. Before the ship arrived at Liverpool Dutton and Co. became bankrupts. On the ship's arrival at Liverpool, she was ordered to perform quarantine ; and during the quarantine, one of the assignees of Dutton and Co. went on board the ves- sel, claimed the cargo as belonging to Dutton and Co.'s estate, opened some of the chests of oranges, and put two persons on board, who continued there till the quarantine was ended, with a view of keep- ing possession of the cargo. A few days after- wards, but before the expiration of the quarantine, Holt's agent served a notice of Dutton and Co.'s bankruptcy on the captain of the vessel, and claimed the goods on behalf of Hoist. A similar notice was served on the assignees, and when the vessel came into the harbour a claim was again made to the captain, and an indemnity offered to him, by Hoist's *agent ; but he delivered the goods *20T to Dutton and Co.'s assignees, against whom Hoist having consequently brought an action of trover to recover the goods. They contended, that the principal's right to stop in transitu was completely at an end when the consignee had got possession, Lord Kenyon in Hoist v. Pownal, and which is thus controverted by Lord Alvanley, Cb. J. and Chambre, J. appears to be supported by Ashurst, J. in Linkbarrow v. Mason, 2 T. R. 63. and by Lawrence, J. in Bohtlingk v. Inglis. 3 East, 398. 207 STOPP\GE IN TRAINSITL. by any means of the goods consigned : that the consignee might have met the vessel at sea on her voyage, and have taken possession by virtue of the first bill of lading, which possession, they contend- ed, would be complete to divest any right the con- signor might have to stop the goods in transitu. But Lord Kenyon was of opinion, that this was a stopping in transitu sufficient to maintain the ac- tion ; his lordship said, that in order to give the consignee a right to claim by virtue of possession, it should be a possession obtained by the con- signees, on the completion of the voyage ; that the case put, that the consignee had a right to go out to sea to meet the ship, could not be supported, as it might go the length of saying, that the consignee might meet the vessel coming out of the port, from whence she had been consigned, and that that would divest the property out of the consignor and 208 vest it in himself ; which was *a proposition not to be supported, as there would be then no possibility of any stoppage in transitu at all. That in the pre- sent case the voyage was not completed, till she had performed quarantine, till which time she was in transitu ; and as Hoist's agent had given notice, and claimed the cargo before the completion of the voyage, he was of opinion, that Hoist had stopped the goods time enough to prevent the property from vesting in the assignees. STOPPAGE IN TRANSITU. *209 *CHAP. IV. Wlien the consignor's right to stop the goods in tran- situ is divested by the consignee's having aliened them to a third person * WHERE goods have been consigned under a contract for sale, or what is equivalent to a sale, and the consignor has transmitted to the consignee documents which are sufficient in law to transfer the property, and the consignee has made use of them, to transfer it to a third person, who pur- chases it bona fide, for a valuable consideration, and without notice of any circumstances which render the property *not fairly assignable, the con- *216 signor is divested of his right to stop the goods in transitu, though they were consigned wholly on credit, and the consignee has become insolvent, without paying for them.(a) * The consignor's right to stop goods in their transit, to the con- signee, cannot be defeated by a third person in whose hands they are placed, claiming to retain them on the ground of a lien for a general balance due to him from the consignee in the course of trade : accord- ingly in the case of Oppenheim v. Russel, 3 Bos. and Pul. 42. it was determined, that an usage for a carrier to retain goods for the general balance of account due to him from the consignee, could not prevent the consignor from stopping them, and taking them out of the car- rier's hands, upon paying the price of the carriage of those particular goods only. (c~) Wright v. Campbell, 4 Burr. 2046. Ljckbarrow v. Mason. 2T 210 STOPPAGE IN TRAIN SITU. The only kind of document which has been de- termined to have the effect of enabling the con- signee to transfer the property in the goods con- signed to a third person, free from any right of stoppage by the consignor, is that which is termed a bill of lading :(/>) and different opinions have been held, not only as to the form in which this instrument should be drawn, to constitute a trans- fer of the property to the consignee ; but as to its having in any form, the effect of enabling the con- signee to transfer the property to a third person, free from the equitable claims of the consignor. 1st. With respect to the form of the instrument '; it was formerly held that the legal property did not pass at all to the consignee by a blank endorse- 21 1 ment of the bill of lading ;(c) but this doctrine *has long been exploded, and it is now clearly settled, that an endorsement in blank has the same effect as an endorsement to deliver to the consignee's or- der, and a bill of lading, endorsed, either in blank, or to the consignee, or order is sufficient to vest the property in him, so far as to enable him to divest the consignor of his right of stoppage in transitu by transferring the properly to a third person \(d) and if tin; bill of lading has by its form required R, 63. Salomon v. Nissens, 2 T. R. 6^4. Cuming v. Brown, 9 F/ si, 506; Hi) An in\ nee seems nol to be a sufficient instrument for this pur- pose, Snee \ Pre cot, 1 Mk 245. (c) Snee v. P esc »t, I Mk 245. (/] ! rekbaiTOW v Mumjii, 2 T K 68. judgment of Duller, J. 6 East, 25. in QOtis STOPPAGE IN TRANSITU. 211 and received the endorsement of the consignor, a second endorsement by the consignee is not neces- sary to complete the transfer of the property from him to a third person. (e) Nor is it in every case indispensably necessary in order to give the bill of lading this effect, that there should be an endorse- ment of it all by the consignor ; for circumstances may exist which are equivalent in law to such an endorsement, and therefore render it unnecessary. Accordingly where a merchant in Ireland sent goods to his factor in London, and wrote to him to insure the goods, and sent him a bill of *lading not * 212 endorsed, but having the name of the factor on the back ; and upon being applied to by the latter for an endorsement, answered by letter that if the bill of lading was not endorsed, it was merely a mis- take, and he would send an endorsement, upon which the factor sold the goods ; and it afterwards happening that he was unable to pay the bill drawn upon him by the merchant on the general account, a third person paid the bill for the honour of the drawer, and being acquainted with the whole transaction applied to the merchant for an endorsement of the bill of lading, which the latter sent him, and he (having upon the receipt of it de- manded the goods of the master, who refused to deliver them to him, but delivered them to the vendee of the factor,) brought an action against the master, which was tried before Lord Kenyon, and his lordship ruled that the plaintiff had, under (e) Lickbarrow v. Mason, 2 T. R. 63. Abbot on Ship. 374. 23 212 STOPPAGE IN TRANSITU. those circumstances, no right to take the goods out. of the possession of the vendee of the factor ; the latter being sufficiently empowered to transfer the property, and having actually done it(f) *213 The consignor may however restrain *the nego- tiability of the bill of lading, by leaving it unin- dorsed,^) or by confining it by the endorsement to the consignee ;(7i) for if there are no circumstances in the case, which can be considered as equivalent to an endorsement, and the bill be for delivery to order, or assigns, and transmitted unendorsed, the holder of it cannot divest the consignor's right to stop the goods in transitu by aliening them to a third person. Accordingly where one Fox, a wine merchant in London, ordered five pipes of wine of Messrs. Abbot and Co. of Oporto, which they load- ed on board a vessel bound to London, and took from the master bills of lading to order, or assigns, one of which they transmitted to Fox in a letter, wherein they said they had shipped the wine on his account, had sent him a bill of lading, and drawn upon him for the price : and Fox accepted the bill of exchange thus drawn upon him ; but be- fore it became due the wine arrived ; and Fox not being able to pay the duties, it was sent to the king's warehouse under the statute of 26 Geo. 3. c. * 214 &$• while it *reinained there, Fox being indebted to one Mary Nix sold the wine to her for 40/. then (/) Dick v. Lumsdon, Pceke's C N. P. 189. (g) Kinlock v. Crwg, 3 T. R 119. (.h) Diet. Ashurst, J. Lickbarrow v. Mason, 2 T. R. 63 Stoppage in transitu. 214 paid to him, and the amount of his debt, and soon afterwards became bankrupt, and the agents of the consignors having paid the duties, and obtained the goods, Mrs. Nix brought an action against them for the value. The cause was tried before Lord Ellenborough, and it was insisted, on behalf of the plaintiff, that there was no difference between the endorsement of a bill of lading by the consignor, and the sending it enclosed in a letter of this im- port. But his lordship declared himself to be of a different opinion, and held that the right of the consignor was not devested under these circum- stances.^ 2dly. With respect to the effect of the bill of lading in enabling the consignee to transfer the property to a third person, bona fide, and for a va- luable consideration free from the right of stop- page in transitu by the consignor. It does not ap- pear to have been disputed or denied by any deci- sion, that the consignee of goods on credit might assign his interest in them to *a third person, by an * 215 assignment in proper form of the bill of lading ; and the cases of Evans v. Martlett, 1 Ld. Raym. 271. 12 Mod. 156. S. C. Wright v. Campbell, 4 Burr, 2046. 1 Bla. R. 628. S. C. and Caldwell v. Ball, 1 T. R. 205. have placed that point beyond dis- pute ; and it was not until a late period that it be- came a question, whether the consignee could so far tranfer the property in the goods to a third per- (i) Nix v. Olive, sitting's at Guildhall, before Lord Ellenborough, Ch .f. after Trin. Term, 1805, cited Abbot *n Ship. 377 '. 215 STOPFAGE IN TRAESlTU. son by an assignment of the bill of lading bona fide,, and for a valuable consideration, as to divest the consignor's right to stop them in transitu. The rule indeed laid down by Lord Mansfield in the case of Wright v. Campbell, that " if the goods are bona fide sold by the factor at sea, (as they may be where no delivery can be given,) the sale will be good : the vendee shall hold them by virtue of the bill of sale, though no actual possession is de- livered ; and the owner can never dispute with the vendee, because the goods were sold bona fide and with the owner's own authority," is directly in fa- vour of the affirmative side of this question ; but that case was decided on the ground of collusion, and this question was not made the principal point of any decision, until those of Lickbarrow v. Ma- 216 son, 2 T. R. 63. *and Mason v. Lickbarrow, 1 Hen. Bla. 357. The circumstances of which cases were as follow : Messrs. Turing and Co. shipped goods at M'ddkburgh for Liverpool, by the order of Free- man of Rotterdam, and drew bills of exchange for the price, (which were accepted by Freeman,) and took from the master three bills of lading for deli- very of the goods to order or assigns, two of which they endorsed in blank, and transmitted them, to- gether with an invoice , to Freeman at Rotterdam 3 who sent (hem and the invoice to the plaintiffs at Liverpool, in the same state in which he received them, that they might receive and sell the goods on his accounl ; and drew bills of exchange upon them to nearly the amount, which the plaintiffs ipted; but between the ship's departure and STOPPAGE IN TRANSITU, 216 her arrival at Liverpool, Freeman became a bank- rupt, and absconded, and Turing and Co. sent ano- ther of the bills of lading to the defendants, en- dorsed specially for delivery to them ; and they thereupon obtained the goods from the master. Turing and Co. afterwards paid the bills of ex- change drawn by them upon Freeman, and the plaintiffs paid those which Freeman had drawn upon them. Upon these facts, the court of king's bench, after *solemn argument upon demurrer to *217 the evidence, decided that by an assignment of the bill of lading by the consignee to a third person, for valuable consideration, and without notice to the assignee that the goods were not paid for, the . property was absolutely transferred to the assignee, and that the consignor could not after such an as- signment of the goods stop them in transitu, (which he might have done against the original consignee,) because the court considered it a settled principle of law, that wherever one of two innocent persons must suffer by the acts of a third, he who was ena- bled such third person to occasion the loss, must sustain it ; and the consignor by endorsing the bill of lading to the consignee, by his own act empow- ered the latter to assign it : a bill of lading direct- ing the delivery of the goods to the consignee, by name, or to the order of the consignor, and en- dorsed by him in blank, or to a particular con- signee, being to be considered as an instrument in its nature transferable, and similar to a bill of ex- change, of which though as between the drawer and the payee, the consideration may be gone 217 STOPPAGE IN TRANSITU. into, yet it cannot as between the drawer and an '218 endorsee, because it would be enabling the Origi- nal parties to assist in a fraud, and in the same manner, if the delivery of a bill of lading were not in effect a delivery of the goods themselves, as be- tween the consignor and third persons, it would enable the consignee to make the bill of lading an instrument of fraud, and this rule is founded purely on principles of law, and not on the custom of merchants : the custom of merchants only esta- blishing that such an instrument may be endorsed; but the effect of such endorsement being a ques- tion of law, which is, that as between the original parties, the consideration may be enquired into, though when third persons are concerned it cannot. And lastly, that the case of Snee v. Prescot, 1 Atk. 245. was determined only upon equitable grounds. This decision was afterwards reversed in the ex- chequer chamber,(/c) on the ground, that the only effect of the endorsement of a bill of lading, is to give to the holder, or endorsee, a right to receive the goods and to discharge the master of the ship, as having performed his undertaking ; that if it were allowed to have any further effect, the pos- session of the bill of lading, would have a greater 219 *effcct, than the actual possession of the goods themselves ; for though the possession of the goods is prima facic y evidence of title, mere possession, without a just title, gives no property, and the per- son to whom such possession is transferred by dc- 'k) Maflonv, lirkburrow, 1 II Rla. 35!* STOPPAGE IN TRANSITS. 219 livery, must take his hazard of the title of his au- thor. That, as the endorsement of the bill of lading is an assignment of the goods themselves, it differs essentially from the endorsement of a bill of exchange, which is the assignment of a debt due to the payee, and which by the custom of trade passes the whole interest in the debt, so complete- ly, that the holder of the bill for a valuable consid- eration without notice, is not affected even by the crime of the person from whom he received it. That bills of lading differ essentially from bills of exchange, in another respect, as the latter can only be used for the specific purpose of extending credit by a speedy transfer of the debt, which one person owes to another, to a third person. But the former may be assigned for as many different purposes as the goods may be delivered, either to the true owner of the goods by the freighter, who acts mere- ly as his servant, or to a factor to sell for the owner, or by the seller of goods to the buyer. That *they * 22© are in no certain form, and seldom upon the face of them bear any indication of the purpose of their endorsement, and often express a false account and risk. That to such an instrument, so various in its use, it seems impossible to apply the same rules as govern the endorsement of bills of exchange ; and that the silence of all authors treating of commer- cial law, is a strong argument that no general usage has made them negotiable as bills of exchange ; and that evidence appears to have been given in other cases, that the received opinion of merchants was against their being so negotiable. That the 220 STOPPAGE IN TRANSITU. negotiability of bills and promissory notes, is found- ed on the custom of merchants and positive law \ but as there is neither any positive law, nor any custom of merchants, that can apply to a bill of lading, it is therefore not negotiable as a bill, though assignable, and passes such right, and no better, as the person assigning had in it. That the oldest of our law books consider payment of the price, (day not being given,) as a condition pre- cedent implied in the contract of sale ; and that the vendee cannot take the goods, or sue for them without tender of the price. That in the simpli- city of former times, a delivery of actual posses- 221 sion to the vendee *or his servant, was always sup- posed, but from the variety and extent of dealing which the encrease of commerce introduced, a de- livery was allowed to be presumed from circum- stances by which the property was so far vested in the vendee, as to enable him to assign the goods, and maintain an action against a third person into whose hands they had come ; but the title of the vendor still continued until the goods came into the actual possession of the vendee : and hence the vendor had the right of stopping the goods in transitu, which is a right founded on legal as well as equitable principles, and not on a mere personal exception to the consignee, precluding his demand, on the merjB ground of its being unconscionable, but extends as well to his assignee for a valuable consideration, and without notice. This judgment was by a second writ of error brought before the house oflords, when a long and elaborate opinion Stoppage in transitu. 221 was delivered by B idler, J.(/) in which he adhered to the judgment he had before delivered in the same case in the court of king's bench, arguing first, from a long series of authorities, that it was clear that by a bill of lading and the legal assign- ment *of it, the absolute property passes to the as- * 2*2 signee ; and secondly, that the consignor has no right to stop the goods in transitu as against the assignee, that right being founded on equity, though afterwards adopted by courts of law ; and what Ld. Hardwicke said in the case of Snee v. Prescott, 1 Atk. 245. with respect to liens, that " where goods have been negotiated and sold again, it would be mischievous that the vendor or factor should have a lien on the price," applying equally to cases of stoppage in transitu, and that doctrine being in fact expressly applied to such cases by the court of king's bench, in Lempriere v. Pasley, 2 T. R. 485. And the circumstance of the consignor's interest being first provided for in Snee v. Prescott, being founded on what is now admitted to be a mistake in law, in supposing that there was a difference be- tween a full and a blank endorsement, and that the legal property in the latter case remained in the consignor. And lastly, no case having ever arisen in equity, in which a man was suffered to seize goods in transitu in opposition to one who has a le- gal title, and Lord Hardwicke's opinion being clearly against it ; and the law, where it adopts the reasoning and principle of a court of equity, never (0 6 East,_25. in notis 24 *223 STOPPAGE IN TPtANSITU. having *exceeded, and it never being right that it should exceed, the bounds of equity itself. The house of lords, however, thinking the. facts of the case were not laid before them in such a manner as to warrant a decision of the point, directed the cause to be tried again by a jury ; and it was ac- cordingly again tried,(m) and the jury found a spe- cial verdict, stating the same facts as had been given in evidence upon the former trial, and fur- ther, " that by the custom of merchants, bills of lading, expressing goods to have been shipped by any persons to be delivered to order or assigns, are, at any time before arrival, negotiable and trans- ferable by the shipper to any other person, by the shipper's endorsing his name, and delivering or transmitting the same so endorsed to such other person. And that the property is transferred to such other person by such endorsement and deli- very, or transmission. And that by the custom of merchants, endorsements of bills of lading in blank, that is, by the shipper, with his name only, may be filled up by the person to whom they are 224 so delivered, or transmitted, with words *ordering the delivery to such person. And according to the practice of merchants, the same, when filled up, have the same effect as if they had been done by the shipper, when he endorsed the bill of la- ding with his name."(«) The court of king's i) Lickbarrow v. Mason, 5 T. It. 683. nee to the same effect, was also given in the subsequen I || illi | i Bos Si I'iiI • STOPPAGE IN THAN SITU. 224 bench, without admitting any farther argument, gave judgment in conformity to their former deci- sion ; and in order that the question might be again carried to the other tribunals, another wril of error was brought, but afterwards abandoned, and it is now the admitted doctrine of our courts, that the consignee may, under the circumstances stated in this case, by an assignment or delivery of the bill of lading, confer an absolute right of pro- perty upon a third person, indefeasible by any claim on the part of the consignor. Nor does the circumstance of the consignment of the goods being made to the consignee as a factor, make any difference in his power of trans- ferring the goods, by assignment of the bill of la- ding, under a contract nf sale, to a bona fide pur- chaser, during their transit ; because it is a part *of * 225 the employment of a factor to sell goods for his principal, (o) But still it is to be observed, that the legal effect of an endorsement, or delivery of a bill of lading, by the consignor to the consignee, is not necessa- rily, and in every case to give the latter the power of depriving the former of his right of stopping the goods in transitu, by a subsequent endorse- ment, or delivery of the bill to a third person, even for a valuable consideration, and without collusion, but depends in some measure upon the circum- stances of the case, and the relation in which the ' (o) Wright v. Campbell, 4 Burr. 2046. Judgment of Buller, J. in Lickbarrow v. Mason, 6 East, 25. in notis. 225 STOPPAGE IN TRANSITU. consignor and consignee stand with regard to each * 226 other \(p) and accordingly it has *been determined, that a factor having only authority to sell and not to pledge the goods of his principal, cannot devest him of his right to stop goods consigned to the factor on credit, during their transit, by endorsing or delivering over the bill of lading, as a pledge to a third person, though the pawnee was not aware of the factor's want of authority to dispose of the property in that way. (q) And where the assignee of the consignee pur- chases the goods, with notice of such circumstances as render the hill of lading not fairly and honestly assignable, he stands in the same situation as the consignee, and the consignor is equally at liberty to exercise the right of stopping in transitu against him, notwithstanding his purchase.frj And if the {[>) In the case of Coxe v. Harding', 4 East, 211. where a bill of lading* was endorsed and transmitted by the consignor to an agent, to enable him to take possession of the goods for the use of the consignor in the event of the consignee's failure; a doubt arose whether the mere en- dorsement of the bill of lading to the agent without consideration, would enable him to maintain an action of trover for the goods in his own name; but it being determined by the court, that under the cir- cumstances of that case the property vested absolutely in the consignee, so that the consignor himself could not have sued for them, they con- sidered it unnecessary to decide the point doubted; they, however, at the same time, Btrongly intimated an opinion, that no property passed by such an endorsement, and consequently that no action of trover could be maintained by the endorsee. And Lord Ellen borough has since decided the same point in Waring v. Coxe, 1 Campb. It. 369. in con- formity to that opinion. (7) Newsom V. Thornton, 6 East, 17- (r) Wright v. Campbell, 1 Run-. 2046 Solomons v. Nissen, 2 T. It. 674. Cuming v. Brown, 9 East, 5U6. If the consignor has given his STOPPAGE IN TRANSITU. *227 assignee take the *assignment of the bill of lading from the consignee, with notice that they are not paid for, and take upon himself the payment of them, un- der an agreement that the vendee and himself shall be jointly interested in the proceeds of them, th£ assignment will be clearly fraudulent, and there- fore will not deprive the vendor of his right to stop the goods in transitu, upon the failure of the con- signee without payment.^ *The mere circumstance, however, of the as- signee of the bill of lading knowing at the time of the assignment of it to him, that the consignor had not been paid in money for the cargo, but only by the consignee's acceptances, payable at a day not then arrived, is not of itself, and without the ex- istence of any other circumstances showing fraud, assent to the transfer, and the assignee has paid the consignee for them, it seems the consignor would in that case be devested of his right of stoppage. Where the fairness of the assignment of the bill of lading by the consignee, and consequently the consignor's right to stop the goods in transitu may be questionable, (which must be frequently the case in this country,) it seems that the law does not impose the burden upon the master of the ship, of determining the question at his own risk, though he may subject himself to it, by entering into an express agreemeut as to the delivery of the goods intrusted to him. See Fearon v. Bowers, 1 H. Bla. 364. in notis. Caldwell v. Ball, 1 T. R 205. Mills v. Ball, 2 Bos. &. Pul. 457- and see ante Chap. II. note (d) and Mr. Ab- bot's Treatise on Shipping, part 3. c. 9. s. 24. who there states what he- conceives to be the proper mode of proceeding for the master to adopt, where the validity of the assignment of the bill of lading appears doubtful. (s) Solomons v. Nissel, 2 T. R. 674. There were two sufficient grounds for the decision which was made in this case. 1. That of fraud between the vendee and the assignee ; and 2. Their being part- ners in the transaction. 228 STOPPAGE IN TRANSITU. sufficient evidence of it, to render the assignment defeasible, by the consignor's stopping the cargo in transitu ; though if the assignee had been aware at the time of the assignment, that the consignee was unable, from the state of his circumstances, to answer his acceptances, it would have been a sufficient proof of fraud in the former to invali- date his title against the consignor.(0 And where the vendor of goods for bills payable at a future day, assents to a sale of them by the vendee, to a third person, and allows such person to exercise such acts of ownership upon the goods as amount in effect to a delivery of them, (as marking them with his initials,) the original vendor cannot stop them in transitu, upon the failure of the original vendee without payment of the bills, 229 though the ^original vendor was ignorant, until that failure took place, that the second vendee had actually paid for the goods.(w) (t) Cuming v. Brown, 9 East, 506. (u) Stoveld v. Hughes, 14 East, 308. INDEX TO THE PRINCIPAL MATTERS CONTAINED IN THE LAW RELATIVE TO LIENS. A. ACCEPTOR page Of a bill of exchange, has it seems a lien upon effects of the drawer in his hands . . . 129. n. (c) AGENT. See Attorney, Lien, Factor, Insurance Broker. 1. Particular liens may be derived through the acts of agents or servants ..... 28 2. And general liens also 38 3. But no lien can be acquired on goods delivered by an agent, or other person to whom the goods do not belong, for a general balance due from such agent or other per- son, on his own account .... 39 4. And where the act of the agent is wholly unauthorized and tortious, no lien can be acquired by it 51 AGISTOR Has no lien by the common law ... 13 ASSUMPSIT. See Lien. A lien may be advanced as a defence in an action of as- sumpsit ...... 2 ATTORNEY. 1. Has a general lien upon all papers of his client in his hands for his costs .... 3576 2. Has a lien upon papers in his hands as steward of a court ...... 77 INDEX VTTORNEY— Continued. 3. Has a lien when acting as agent in town to a country attorney ..... 76. n. (a) 4. Has no general lien upon papers which belong to a third person, or in contravention to the right of a third person ...... 78 5. Has no lien upon papers delivered upon a special agree- ment, or trust not to be subject to a lien . 79 6. Has no lien where security is taken for the money ib. 7. Has no lien upon papers received after the bankruptcy of his client ...... 80 8. Has a lien upon judgments recovered for his clients for his costs, and may obtain an order either in a court of law or equity, to stop them from receiving money recovered till his bill is paid ..... ib. 9. Has a lien for his costs on money levied by the sheriff un- der an execution .... 82 10. Has a lien upon a sum awarded in favour of his client 83 11. Difference between the practice of the courts of K. B. C. P. and Chancery, with respect to the lien of attornies and solicitors upon judgments and sums recovered by their clients. In the court of K. B. the attorney is allow- ed a lien paramount to any claim of set-off by the par- ties ; but in the courts of C. P. and Chancery the lien is subject to the equitable claims of the parties ib 12. None of the courts will permit the attorney's lien to be defeated by a collusive settlement between the plaintiff and defendant ... .86 B. BAILEE. Lien of by the common law 13 BANKER. 1. Has a general lien . . 35.89 '2. What is a waiver of his lien 89 3- Cannot give a lien to a customer by a deposit of particu- lar securities among those belonging to other customers, without giving notice of such deposit to the customer in whose favour it is intended, 66. Sec Lien of Pawnee. BANKRUPTCY. See Fraudulent Delivery, Po.iseeston, Chvses in Action TO THE LAW OF LIEN. BANKRUPTCY— Continued. 1. No lien can be acquired upon goods delivered with in- tent to give a fraudulent preference in the event of bank- ruptcy ....*. S3 2. No lien can be acquired upou property delivered after the commission of an open act of bankruptcy by the owner ...... 59 3. But under some circumstances a lien may be acquired upon property delivered after a secret act of bankruptcy ib BOOKKEEPER. In Smithfield Market has no lien upon money received by him for cattle sold there, against the owner for a general balance due to him from the salesman 39. n. (c) c. CALICO PRINTER. 1. Has a general lien .... 34.90 2. But only for such balance as arises from work in the course of his trade .... 90 CAPTAIN OF A SHIP. See Carriers by Water, Ship. 1. Has no lien on ship for wages . . 17. n. (§■) 2. Does not it seems lose his lien for freight, by depositing the goods in the king's warehouse pursuant to an act of parliament ..... 72.98 CARPENTER 7. n. (§■) Not obliged to receive employment . . 17 ©ARRIERS IN GENERAL. See Stoppage in Transitu. 1. Have a particular lien .... 16.90 2. Though the goods delivered to them are stolen 92 3. But have no general lien by the common law . 92.93 4. May acquire a general lien by express contract 93 5. But not it seems by public notices that they will carry only under condition of having such lien . . 38 6. May acquire a general lien by implication from the gene- ral usage of trade, or of the parties . . 92 7. Not yet generally found that they have no general lien by the usage of their trade, though determined so in one instance ..... 35 8- Lose their lien by parting with possession of the goods 94 9. When they are by the usage of their trade to be paid for the carriage of the goods by the consignor, have no 25 INDEX CARRIERS IN GENEE AL— Continued. right to retain them against the consignee for a general balance due to them from the consignor . 39.94 CARRIERS BY WATER. See Captain, No. 2. 1. Owners and masters of general ships carrying goods for hire on the high seas or navigable rivers, are common carriers, and have the sime lien as carriers by land 95 2. Master of a vessel may detain the luggage of a passenger for his passage money .... 97 3. If the master voluntarily parts with the goods out of his own or his agent's hands, he loses his lien upon them 99 CHOSES IN ACTION. What a sufficient transfer of them to create a lien 63 CLERKS. 1. Lien of the clerks of the several courts . . 86 2. In Chancery have a lien on paper in their hands until their bills are paid, though not employed immediately by the client but by his country solicitor . . ib. 3. Six clerk has a lien upon papers in his hands for his fees 88 4. Not decided whether a clerk of the assize has a lien upon papers in his hands for his fees ... 38 COACHMAKER . . 15. n. (6) Acquires no lien for repairs done to a chaise tortiously de- livered to him against the right owner , . 51 COSTS. See Attorney. D. DELIVERY. See Bankruptcy, Fraudulent Delivery, Vendor* DISTRESS. No lien for the keep of an horse distrained to compel an ap- pearance in an hundred court . . . 27.4? DYER Has a particular lien . . 99 Rut not a general lien without an express contract 100 E. EQUITY Courts of equity will decide exactly as courts of law would hi case of lien. 4. n. (c). See Lien. RSTi: W lord of 'lie Manor has a lien for the keep of 26 TO THE LAW OF LIEN. EVIDENCE 1. Oflien by usage . . 31.46 2. Of fraud. See Fraudulent Delivery. F. FACTOR 1. Has a general as well as a particular lien upon goods in his hands as a factor .... 83.10:: 2. For a debt which he is only a surety . . 103 3. Has a lien upon the price of goods sold by him in the hands of the purchaser where he sells under a del credere commission, as is in advance to his principal by actual payment ...... 104 4. Though he knew his principal to be insolvent at the time of the sale, or though the money be not paid the factor until after the bankruptcy of the principal, provided the goods were sold before it . . . 64.104 5. Has a lien for his general balance upon a policy of insur- ance which he has effected for his principal . 105 6. If the consignor of a cargo direct his factor to insure it, and afterwards assigns both cargo and policy of insurance by endorsement of the bill of lading, the assignee takes the policy subject to the factor's lien for the general ba- lance due to him from the consignor . ib 7. Death of principal when so far a revocation of factor's authority as to prevent his lien . . 106 8. Has no lien where he enters into a special agreement with his principal to pay over the proceeds, or for a par- ticular mode of payment, or enter into a special agree- ment with his principal, or have notice for a special agreement between his principal and a third person as to the application of the money . . . 49.108 ( 9. Has no lien on the goods of his principal for debts which accrued before the relation of principal and factor ex- isted between them .... 10& 10. Can acquire no lien on goods delivered to him after the commission of an open act of bankruptcy by his principal 116 11. An advance of money, or an acceptance of goods not excepted from this rule as a payment within 1 Jae. 1. c. 15. s. 14 • . . 60 12. Has a lien upon goods which do not come into his actual possession, though he has accepted bills upon the faith INDEX FACTOR— Continued. of the consignment and paid part of the freight 111 13. Loses his lien by parting with possession . 68.111 14. Cannot pledge the goods of his principal 52.136.7 FARRIER 1. Has a particular lien upon a horse for the price of shoeing it ..... 16.113 2. Whether he may detain a horse for the expense of cur- ing it of a disorder and keeping it during the cure re- mains undecided . . . . 113 3. But if he enters into a special agreement for a specific or a reasonable sum he will certainly have no lien 48.114 FRAUD See Fraudulent Delivery, Bankruptcy. FRAUDULENT DELIVERY OF PROPERTY. See Bankruptcy. 1. 'Whether the delivery be fraudulent must depend upon circumstances . . . . . 53 2. Conclusive evidence of fraud ... 54 3. Presumptive evidence of fraud ... 56 4. Conclusive evidence of fairness . . 57 5. Presumptive evidence of fairness ... 58 FULLER Has, it seems, a lien for his general balance by the custom of Exeter . . . . . 34.114 GUEST. See Innkeeper. Leaving a horse at an inn, sufficient to constitute a man a guest . . . . . 117 I. INDIA BONDS. Assignable by delivery . . 136. n (o) INNKEEPER. See Guest. 1. Bound to receive goods, and therefore has a particu- lar lien which entitles him to detain the guest himself, and it seems his goods, for the price of his own lodging and entertainment, and his horse for that of its provender and stabling . . . . . 115 2. Hus only a particular lien . , . 118 3. Waives his lien by making a special agreement for payment > . . .119 TO THE LAW OF LIEN. INNKEEPER— Continued. 4. Cannot sell or use a horse detained, except by the parti- cular customs of London and Exeter . 119 5. His lien in some measure restricted by 11 &. 1? W. 8 c. 15. s. 2. 120 INSURANCE BROKER. 1. lias a general lien upon all policies of his principal, and money received upon those policies in his hands 121 2 Has a lien upon money received upon a loss adjusted after the bankruptcy of las principal under a policy in his hands before the bankruptcy .... 63.121 3. May recover his lien upon a policy which he has given up to his principal, by regaining possession even under a false pretence ..... 70.121 4. Where he has effected an insurance for an agent, has no lien upon the policy against the principal for a general balance due from the agent, if he knew that he was em- ployed by-a mere agent .... 122 L. LIEN. 2. Meaning and definition of the term 1 2. Nature and extent of the right . . 2 to 7 3. A defence in actions of trover and assumpsit, and in suits in equity . . 2 4. Analogy between the rights of lien and set off 2,3,4 5. Difference between them . . . 4,5,6 6. Origin and different species of lien . . 7,8,9 7- By the common law . . . 7. 13 8. By usage ... . . 7-31 9. By express agreement . . . 8-27 Particular lien. 1. In what cases they may be acquired by the common law. 1. By bailees . . . .13 2. By persons not bailees ... 22 3. Where the goods come into the possession of the party by finding . ... 23 4. Where they are taken possession of under some legal right 26 2. By express contract. May exist in any case where the parties choose to stipulate for it . ... . .27 INDEX LIEN— Continued. 3. Through agents and servants, and persons to whom the property does not belong. See Agent . . 28 General lien. Why not favoured . . . .11 1. In what cases they may be acquired by the general usage of trade. See Trades, Usage. . 31 When once proved and allowed to exist, not to be after- wards disputed . . . .34 2. By the particular usage of the parties . . 35 Proof of their having before dealt upon the footing of such a lien, presumptive evidence that they continue to deal upon the same terms . . 35 3. By express contract . . .36 1. May be claimed by any person upon the goods of another in his hands where an express assent is given by the owner ib 2. And may be acquired by tradesmen not compellable by law fo receive goods, by public notices that they will not re- ceive but under that condition, against any customers whom they can prove to have been aware of such notice ib 3*. But persons compellable to receive goods cannot acquire such lien by suck notices without the express assent of their customers ■ • . . . 37 4. Through the acts of servants or agents . . 38 5. In what cases no general lien can be acquired. See Agent. .»-... 39 Where it would interfere with the prior common law right of another . • • • . 42 Wlien no sort of lien can be acquired. See Distress. 1. By a wrongful act . . . . .43 2. By misrepresentation • • . . ib- 3. By a voluntary and unauthorized assumption of posses- sion. . • • • • . .44 4 Not by a tortious pledge . . . .'51 5. Where the party has entered into a special agreement for his reward ..... 47 6. Whcro there is an intent to give a fraudulent preference in the event of bankruptcy. See Bankruptcy, Fraudulent Delivery* ■ • . . . 53 7. After an act of bankruptcy, when. See Bankruptcy, Fraudulent Delivery. .... 59 8. Without posscsbion of the property on which the- lieu is claimed < ■ • • - .. 66 TO THE LAW OF XIEN. HEN— Continued. When liens are devested or -waived. 1. When devested by parting with possession 2. When not devested by parting with possession 70 3. Not devested by bankruptcy ... 73 4. Not devested by the owner's aliening the p»perty to a third person ...... 75 5. Waived where the right of retainer is claimed upon a different ground from that of lien . . 75 When received . . . . . 70 When transferrable . . 70 May, it seems, be transferred to servants or agents ib. LIMITATIONS, STATUTE OF A lien may be acquired for a demand against which the sta- tute of limitations has run . 5, n. (/) LIVERY STABLE KEEPER. Has no lien . . . . . 14 M. MANUFACTURER. Not obliged to receive goods to manufacture . 99 MASTER. See Captain, Carriers by Water. MILLER. Has a particidar but no general lien 35.124 MORTGAGE. See Pawn, Pawnee. N. NOTICES. See Carriers, No. 1. P. PACKERS. Have not only a particular but a general lien, 82 n. (a) 126 PAWN. See Pawnee. 1 Nature of, and distinction between pawns and mort- gages ...... 126,7,8 2. A lien created by it . 129 3. When a subject pledged as a security for a debt already due shall be considered as a security for subsequent loans ib. INDEX PAWNEE. See Patim. 1 No lien can be acquired by the pawnee where the deposit is made after the commission of an open act of bankrupt- cy by the pawnor ..... 133 2. Nor where the deposit is made with intent to give a fraud- ulent preference in the event of bankruptcy ib» 3. Nor where the loan is usurious. 134. See Tender. 4. Nor where the pledge is tortious, though the pawnee was ignorant of the pawnor's want of title. 135,6. See Factor. 5. Pawnee may assign the pawn to a third person 140 6. Pawnee devested of his lien in the pawn by the owner, or his representatives tendering the money advanced upon it ; but not by an execution upon the goods of the pawn- or, for a debt recovered subsequent to the pawning, nor by the pawnor's being afterwards attainted of felony. 141 POSSESSION, See Liens,- Bankruptcy, Fraudulent Delivery, Choses in Action, Factor. Symbolical possession of property at sea sufficient to create a lien upon it, though actual possession be not taken un- til after bankruptcy . . .62" s. SALVAGE. 1. Lien for by the common law . 23 2. Recognized by statute ... 23, n. (h) SEAMEN. See Ships. SET OFF. See Lien, No. 4. Statutes . . . 3,4,5,6,7 SHIPS. See Captain, Carriers by Water. Lien on, exists only for repairs done, or necessaries fur- nished, in a foreign port, and for the wages of seamen and officers beneath the rank of captain or master, and for salvage, and it seems for building, but not for repairing a ship ... . . 17,n. (» SHIPWRIGHT. See Ships. SOLICITOR. See Attorney STATUTES. 52 Geo. 3. c. 64. India Ronds 135, n. (g) 11 & 12 W. 3. c. 15, s. 2. Innkeepers . 120 V!t*c\V iVk.'h. \ Pa .v™™ts to bankrupt* 60. US TO THE LAW OF LIEN. STATUTES— Continue*. 19 Geo. 2. c. 32. s. 1. Payments b. bankrupts . 60.110 21 Jac. I.e. 21. Pawns .... 139 7 Geo. 2- c. 15. v responsibility of masters and 26 Geo. 3. c 86. s. I, 2. 3- I owners of ships limited 95, n. (&) 12 Ann. c 18 "\ 26 Geo. 3. c. 19. s. 5. I c , 48 Geo. 3. c. 130. s. 21. f Sjdva * e 23 " n - <*) 49 Geo. 3. c. 122. s. 32. J 2 Geo. 2 c. 22. s. 13. > . » _ . „ 8 Geo. 2. c. 24. s. 4. 5 set off 3 to 7 5 Geo. 2. c. 3- s. 28. set off in cases of bankruptcy 3.7 46 Geo. 3. c. 135. s. 1. transactions with bankrupts 61,110.133 STOPPAGE IN TRANSITU. Consignor's right to stop in transitu cannot be affected by an usage for the carrier to retain goods for a general ba- lance due to him from the consignee . . 40 T. TAYLOR 1. Has a particular Hen . 22,8,142 2. But no power to sell the subject of the lien . 14S TENDER 1. To pawnee not necessary where pledge tortious 52 2. Not necessary where the goods are retained not on ground of lien .-.••. 75 3. Need not be made to the pawnee of stolen goods 138 4. Must be made to the pawnee of goods obtained under false pretences ..... 139 5. Where the loan is usurious . . 134 TROVER See Lien. . • • 45.50.75.134.138.144 V. VENDOR 1. Has a lien upon the property sold for the price, unless it appear from the conditions of the sale that he relied upon the personal credit of the vendee . . 143 2- Devested of his lien by an actual delivery f the whole of the goods sold, or by a symbolical delivery which is unconditional ... . 145 26 INDEX VENDOR— Continued. 3. But not devested of his lien by a symbolical delivery which is conditional, and of which the conditions are not performed ..... 146 u. USAGE. See Liens, Camers, Evidence. 1. Liens by usage are either by the general usage of trade, or the particular usage of the parties . . 31 2. Lien from usage a matter of evidence 7, n. (g) 146 3. Lien can be created by no other usage than that of trade . . . 7, n. (g) w. WAIVER. See Liens, when devested. . . 48.75 WHARFINGER. 1. Has a general lien by the usage of his trade, as well as a particular lien for the wharfage of goods . 146 2. Not entitled to any lien upon goods not actually landed at his wharf .... 147 3. Not entitled to any general lien where the general pro- perty in the goods is altered before they arrive in his hands . . . .41 INDEX TO THE PRINCIPAL MATTERS CONTAINED m THE LAW RELATIVE TO THE RIGHT or STOPPAGE IN TRANSITU, A. AGENT. See Factor, Principal, Stoppage in Transitu. No. 18, 19. 1. Delivery to, when sufficient to determine the transitus. See Delivery, No. 6,7 . . 183 2. When goods purchased by, may be stopt in transitu 154,6 ASSIGNEE. See Assignment, Bill of Lading, Indorsement, Notice. Of bankrupt consignee may recover goods sold on credit from the consignor, upon tendering the full price 150 ASSIGNMENT Of bill of lading by the consignee, when it will transfer the absolute property to the assignee, free from the con- signor's right of stoppage in transitu . 214.24 B. BANKRUPTCY Of consignee, no countermand of goods consignee 180 BILL of LADING. See Assignee, Assignment, Delivery, No. 10. Factor, No. 3. Freight, Indorsement. 1. If indorsed and transmitted in trust the goods cannot be stopt in transitu while the trust remains unsatisfied 164 2 If conditional, and the condition unperformed, the con- signor may stop the goods in transitu . . 165 ". Theonlv kind of document which has been determined INDEX BILL OF LADING— Continued. to have the effect of enabling 1 the consignee to transfer pro- perty in transitu. See Indorsement . . 21$ 4. How far its negotiability may be restrained . 212 c. CARRIER. See Master, Ship. 1. Cannot defeat the consignor's right of stopping goods in transitu, by claiming a lien on them 176, n. 209, n (w>) 2. When liable to an action of trover for refusing to deliver the goods to the consignor . . 171, n. 3. Delivery to, when not a determination of the transitus. See Delivery, "No. 9. 196 CONSIGNEE. See Delivery, Possession, Stoppage in Transitu, CONSIGNOR. See Delivery, Possession, Stoppage in Transitu. COUNTERMAND. See Bankruptcy. By the consignor, how most easily effected . 166. n. D. DELIVERY. See Jlgent, 1. Carrier, 3. Engraver, Innkeeper, , Packer, Possession, Ship, Stoppage in Transitu, 22. Tran- situs, 2. Wharfinger, 2. 1. Of goods, if conditional, and the consignee is ready t» perform the condition, the goods cannot be stopt in tran- situ .... .164 2. What mode of, sufficient to determine the transitus 176 3. May be sufficient without the corporal touch of the vendee . . . . ib. 4. Of the key of the vendor's warehouse seems sufficient 176,/ 5. Of part of goods sold under an entire contract sufficient to determine the transitus of the -whole 180 6. At the warehouse of an agent sufficient where the con- signee uses it as his own. See Agent, Packer. 188 7. At a warehouse which the agent of the consignee has hired, sufficient if the consignee come and exercise any act of ownership upon the goods there, though a further destination is in view . . . 186 8 Wlial not sufficient to determine the transitus 19i 9. To a person who is a mere vehicle between the vendor and - 'l' <■, not sufficient . . . 191 11. Of lull of lading by the consignee when it will transfer the absolute property 214.224 TO STOPPAGE IN TRANSITU. E. ENGRAVER. Delivery of plate to, by order of the purchaser not a deter- mination of the transitus . 196 F. FACTOR. See Agent Principal. 1. When so far considered the vendor of goods to his prin- cipal as to be entitled to stop them in transitu . 154 2. Cannot stop goods in transitu where he is merely a surety for the price .... 159 3. May devest his principal of his right of stopping goods in transitu by assigning the bill of lading by way of sale, 224 — but not by way of pledge . . . 226 FOREIGN ATTACHMENT On goods does not devest the vendor's right to stop them in transitu ..... 176. n. FREIGHT. Whether the consignee's refusal to pay it, will enable the consignor to stop the goods in transitu . . 164 I. INDORSEMENT. See BUI of Lading. 1. Of bill of lading in blank, or to the consignee, or order, sufficient to enable the consignee to transfer the property 211 2. AVhen necessary to give the bill of lading that effect ib. 3. Not necessary in every case . . . ib. 4. Does not give it that effect in every case . 225 INNKEEPER. Delivery to, when not a determination of the transitus 193 INVOICE. Will not it seems enable the consignee of property in tran- situ to alien it ... 210. n. (6) L. LIEN For work done upon goods in the course of trade will not entitle the tradesman to stop them in transitu 161 M. MASTER. See Cai-rier, Ship. Of a vessel, when justified in delivering goods to the con- signee ..... 164 MONEY. When it may be stopped in transitu 15S INDEX N. NOTICE. What sufficient to the assignee of a bill of lading- to render it not fairly assignable .... 226 P. PACKER Delivery to — when a determination of the transitus, 184 — when not ..... 195,6 POSSESSION. See Delivery, Stoppage in Transitu. 1. Seems necessary on the part of the consignee to devest the consignor's right of stoppage in transitu, but not on the part of the consignor to effect a stoppage 169. n. (b) 2. What mode of assumption of, by the vendee sufficient to determine the transitus . . . 176 3 Sufficiently taken by the vendee to determine the transi- tus of the goods by the exercise of such acts of ownership as the circumstances of the case will permit, 177,8 — By marking the goods, 178 — By the lodgment of the deli- very note with the wharfinger, and his transferring them in his books, 177. n (g) — By the vendee's weighing them, 180 — by the payment of warehouse rent 177 4. When it may be taken by the vendee . . 204 5. What assumption of by the vendee not sufficient to de- termine the transitus, 190 — A demand not sufficient, ib. — Payment of freight not sufficient . . ib. 6. When it may be taken on the part of the vendee, 204 — Cannot it seems be taken before the goods have arrived at the end of their journey . . . ib . PRINCIPAL May stop goods in transitu consigned to his factor on credit 15?" K. RUSSIA Laws of— 1. More favourable to the vendor of goods than the laws of England .... 197 2. Allow goods to be recovered by the vendor after a deli- very on board a chartered ship ib , Assisted in their operation by the courts here 198 S. SHERIFF Whether he c:tn defety the consignor's right to stop good*; in tran litu by taking them in execution 175. n. ( ) TO STOrPAGE IN TRANSITU. SHIP Delivery of goods on board a chartered ship when sufficient to determine their transitus, 188— When not sufficient 200 ■ on board a generalship when not sufficient to determine the transitus . . . 197 STATUTES 26 Geo. 3. c. 5. s. 4. p. 168. Duties. -a c. 59. p. 213. STOPPAGE IN TRANSITU. See Bill of Lading, Delivery, Pos- session, Transitus. 1. Definition of the right of . . 149 2. Nature and extent of ... 149,50 3. Origin of . . . . 151 4. Does not proceed upon the ground of rescinding the con- tract ...... 150 5. A legal right ..... 152 6. Favoured by the courts .... 152,66 7. By what persons and under what contract the right may be exercised ..... 153 S. May be exercised by any consignor who is substantially the vendor of the goods. See Agent, Factor, Principal. ib 9. By a person who consigns goods to be sold on the joint account of himself and the consignee . . 158 10. Cannot be exercised by a party who does not stand in the relation of vendor, either actually or substantially. See Factor, Lien. .... 159 11. May be exercised where the vendee has actually paid part, or made himself liable for the whole of the price 150.162 12 Where the consignment is conditional. See Bills of Lading, Delivcrv ..... 164 13. How to be effected. See Countermand. 166 14. May be effected by any means short of felony or abso- lute violence ..... ib 15. Maybe effected without taking possession by a corporal touch ..... 167 16. By an entry of the goods at the custom-house ib. 17. By a claim ..... ib 18. Sufficient by a person who is either a particular or a general agent of the consignor at the time . 171,2 19. Not sufficient by a person who is not an agent of the consignor at the time, though his act be afterwards ap- proved by the consignor . , • • 172 20. When it may be effected. S§e Delivery, Transitu* 174 INDEX, &c. 21. Can only be effected when the consignee refuses or ui unable to fulfil the conditions of the contract, and where the goods are in transitu and not aliened by the consignee to a bona fide purchaser . . 174 22 Cannot be effected at all after delivery to the vendee 183 23. When devested by the consignee's having aliened the goods ...... 209 24. When the vendor has assented to a sale of them by the vendee to a third person ....... 228 T. TRANSITUS. See Delivery, Ship, Stoppage in Transitu. 1. When to be considered as continuing or determined 175 2. Can only be determined by an actual or what is equiva- lent in law to an actual delivery of the goods . ib 3. Ended where the goods wait for further orders from the vendee to put them again in motion . . 188 V. VENDOR May recover for goods which he has stopt in transitu 151 w. WAREHOUSE RENT. See Possession, No. 3. Effect of payment of by the vendor . . . 18^ WHARFINGER. 1. When liable to an action for refusing to re-deliver the goods to the consignor .... 171 2. Delivery to— when not a determination of the transitus 195 HIE END. * 7 LAW LIBRARY ° UNIVERSITY OF CALIFORNIA LOS AMGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 844 917 5